CAN A CLAIMANT AMEND OR SUPPLEMENT ITS CLAIMS DURING ARBITRATION PROCEEDINGS?

During arbitration proceedings, after filing the Statement of Claim, the Claimant may discover additional documents or evidence, reassess the value of an obligation, or encounter new circumstances that change the original claims. The Claimant may then wish to adjust the amount sought from the Respondent, add claims for interest, contractual penalties or damages, or amend part of the relief sought in the Statement of Claim.

Accordingly, after filing the Statement of Claim with an arbitration center, may the Claimant amend or supplement its claims? Until what stage may such amendments or additions be made, and in what circumstances may the Arbitral Tribunal (Tribunal) decline to accept them?

1. May the Claimant amend or supplement the Statement of Claim?

Clause 2, Article 37 of the Law on Commercial Arbitration 2010 (LCA) provides that, during arbitration proceedings, the parties may amend or supplement the Statement of Claim, Counterclaim or Statement of Defence.

For disputes administered by the Mien Trung Commercial Arbitration Center (MCAC), Clause 2, Article 14 of the MCAC Arbitration Rules (MCAC Rules) likewise permits the parties to amend or supplement the Statement of Claim, Counterclaim, Statement of Defence and Statement of Defence to the Counterclaim.

Thus, filing the Statement of Claim does not mean that the Claimant's claims remain fixed throughout the proceedings. Where there are appropriate grounds, the Claimant may amend or supplement the Statement of Claim during the dispute resolution process.

Such amendments or additions may, for example, involve:

• Adjusting the amount sought from the Respondent;
• Adding claims for interest, contractual penalties or damages;
• Revising the grounds for, or substance of, a previously stated claim;
• Adding claims arising from the disputed relationship under consideration;
• Withdrawing or reducing part of the previously submitted claims.

However, the right to amend or supplement the Statement of Claim is not unlimited and must be exercised in accordance with applicable law and procedural rules.

2. Until when may the Claimant amend or supplement its claims?

The LCA allows the parties to amend or supplement the Statement of Claim during arbitration proceedings. The MCAC Rules specify the deadline for exercising this right more precisely.

Under Clause 2, Article 14 of the MCAC Rules, the parties may amend or supplement the Statement of Claim before the conclusion of the final hearing for the resolution of the dispute.

Any amendment or addition must be made in writing and submitted in the requisite number of copies as prescribed by the MCAC Rules.

Accordingly, if the Claimant considers it necessary to adjust or add a claim during the dispute resolution process, it should do so early and clearly in writing. The amendment or supplement should specify which parts of the Statement of Claim are being changed, the revised claims, and the documents and evidence relied upon to substantiate them.

3. Is the Tribunal required to accept every amendment or addition made by the Claimant?

Clause 2, Article 37 of the LCA and Clause 2, Article 14 of the MCAC Rules both empower the Tribunal to decline to accept amendments or additions in certain circumstances.

Specifically, the Tribunal may decline to accept an amendment or addition if it considers that it:

• May be abused to obstruct the dispute resolution process;
• Delays the issuance of the Arbitral Award; or
• Falls outside the scope of the Arbitration Agreement applicable to the dispute.

In particular, the scope of the Arbitration Agreement warrants special attention.

The fact that a claim relates to the relationship between the parties does not automatically place it within the Tribunal's jurisdiction. When a new claim is added, the Tribunal must still consider whether it falls within the scope of the disputes that the parties have agreed to resolve by arbitration.

4. Does changing the amount claimed affect arbitration fees?

Under the MCAC Schedule of Arbitration Fees, the rules on arbitration fees also apply where an amendment or addition to the Statement of Claim increases the amount in dispute.

For example, if the Claimant initially seeks payment of VND 2 billion from the Respondent but subsequently amends or supplements its claims, increasing the total amount in dispute to VND 3 billion, the arbitration fees are recalculated in accordance with the rules applicable to the increased portion.

Conversely, where an amendment or addition reduces the amount in dispute, the arbitration fees are not reduced to reflect that decrease.

Therefore, before amending or supplementing a claim in a way that affects the amount in dispute, the Claimant should also take into account its obligation to pay additional arbitration fees pursuant to the Center's notice.

5. Practical considerations for businesses

When amending or supplementing claims in a dispute at MCAC, businesses should:

1. Submit the amendment or addition in writing and provide the required number of copies under the MCAC Rules;
2. Clearly specify the amendments or additions, rather than merely stating in general terms that the claims are being changed;
3. State the grounds for each new claim and attach relevant supporting documents and evidence;
4. Check the scope of the Arbitration Agreement before adding a new claim;
5. Act as early as possible, avoiding the addition of claims at a late stage of the proceedings;
6. Recheck the amount in dispute and arbitration fees if the amendment or addition increases the amount claimed;
7. After multiple amendments or additions, clearly consolidate all final claims so the Tribunal and the other party can identify the exact scope of the dispute.

Conclusion

The Claimant has the right to amend or supplement the Statement of Claim during arbitration proceedings. At MCAC, this must be done in writing before the conclusion of the final dispute-resolution hearing, in accordance with the MCAC Rules.

However, the Tribunal may reject an amendment or addition if it is abused to obstruct the proceedings, delay the Arbitral Award, or falls outside the scope of the Arbitration Agreement.

Businesses should therefore act early, clarify their revised claims, prepare complete supporting evidence, and check the Arbitration Agreement's scope to avoid disrupting the proceedings.
 

The article above has analyzed in detail is "CAN A CLAIMANT AMEND OR SUPPLEMENT ITS CLAIMS DURING ARBITRATION PROCEEDINGS?". For more detailed information or legal assistance, please contact the MCAC Secretariat:

• Hotline: 0935 925 068 - 0236 3656799
• Email: contact@mcac.vn
• Read more:BUSINESS PERSPECTIVE: CHECKLIST OF 07 ITEMS TO PREPARE BEFORE THE FIRST ARBITRATION HEARING