📌 Let’s have a look on the Decision No. 09/2019/QĐ-PQTT, the Hanoi People’s Court declined to annul a VIAC arbitral award worth over 69 billion VND in the case Posco E&C Vietnam vs. KID JSC, despite objections that parties bypassed FIDIC’s Dispute Adjudication Board (DAB) and mediation clauses.

 Case Highlights:
🔸 The Dispute:
A dispute arose from a FIDIC-based construction contract. The Respondent (KID) argued the arbitration was invalid because the Claimant (Posco E&C) did not initiate DAB or mediation prior to arbitration under FIDIC Clause 20.
🔸 The Contractual Twist:
The parties expressly deleted FIDIC Clauses 20.2 and 20.3 (DAB appointment and decision procedures). As a result, Clause 20.5 on amicable settlement (mediation), which is conditional upon Clause 20.4, was rendered inapplicable.
🔸 Court’s Ruling:
The Court reasoned that when pre-arbitration steps are waived by both parties, it does not constitute a violation of arbitration agreement or Vietnamese procedural public policy. There were no grounds under Article 68 of the LCA 2010 to annul the award.

 Legal Analysis:
🔸 Practical Waiver of Multi-tier Dispute Resolution:
Vietnamese courts adopt a contractual autonomy approach. If parties voluntarily omit pre-arbitral steps, arbitration can commence directly — so long as the arbitration clause remains valid.
🔸 Substantive vs. Procedural Review:
The Court reaffirmed its limited review role: it does not reassess the merits or facts, nor interfere with the Tribunal’s evaluation of liability, damages, or breach — preserving the finality of arbitration.
🔸 Pro-arbitration Judicial Policy:
This decision adds to the growing judicial precedent where Vietnamese courts respect the spirit and structure of arbitration, aligning with international best practices.

 Key Takeaways for Practitioners:
🔐 Carefully draft dispute resolution clauses in FIDIC-based or complex contracts. Modifications to DAB procedures must be mirrored by corresponding clarity on arbitration triggers.
⚖️ Judicial support of arbitration in Vietnam is real. Article 68 LCA sets a high threshold for annulment — procedural violations must be serious and substantial.
🛡️ Mediation clauses must be enforceable. If contractual clauses are interlinked (e.g., mediation after DAB), removal of one can nullify others.
📎 Pls find full decision as per attachment (Vietnamese):

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Link PDF: 09.2019 QĐ/PQTT

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