When is it considered waiving the right to object in commercial arbitration procedure?

I would like to ask the lawyer that after receiving the arbitration filing from the Arbitration Center and during the arbitration process, the respondent discovers a violation of arbitration agreement terms, but does not object to them. Can they object to them and request the annulment of the arbitration award in court after the arbitration award is issued? When is it considered waiving the right to object to, and what is the time limit for objection under law provisions on arbitration?

FDVN’s opinion:

Thank you for submitting your question to FDVN Law Firm ("FDVN"). In response to your consultation request, after researching relevant legal regulations, FDVN would like to present our opinion as follows:

It is stipulated in Article 13 of Law on Commercial Arbitration 2010 that:

“A party that detects to have a violation of this Law or the arbitration agreement but continues to conduct arbitral proceedings and does not protest the violation within the time limit set by this Law will lose its right to protest at the arbitration or court.”

In Clause 1 of Article 6 of Resolution 01/2014/NQ-HĐTP, guiding the implementation of certain provisions of the commercial arbitration law, the specific deadline for objection is determined as follows:

• When a party is found violating regulations of LCA or the arbitration agreement, if arbitral proceedings are still carried on without any protest against such violations submitted to the arbitral tribunal or arbitration center by the deadline imposed in LCA, the right to protest against such violations shall be lost. 
• In the cases where LCA does not specify the deadline, the deadline shall be agreed by the parties or arbitration rules. 
• If the parties do not have an agreement or the arbitration rules do not specify, the objection shall be made by the time the arbitral tribunal gives an arbitral award.

Before considering a party's request regarding the violation of provisions of the Law on Commercial Arbitration or the arbitration agreement, the Court must examine the documents, evidence, and arbitration procedural rules to determine whether the party or parties have waived the right to object. If the Court determines that the right to object has been waived due to a violation, the party that has waived the right to object is not entitled to claim the decision of the Arbitral Tribunal, nor can they request the annulment of the arbitration award for those violations, which they have waived the right to object to. The violations for which one or more parties have waived the right to object shall not be the basis for the court to accept any other parties’ requests.

The above is the advisory opinion of FDVN regarding your consultation request based on the research of legal regulations. We hope FDVN's advisory opinion will be helpful to you.

Nguyen Van Anh - FDVN Law Firm.

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