Under the Commercial Law 2005, when a non-defaulting party makes a claim for damage due to a breach of contract, the non-defaulting party has the obligations to mitigate the damages it has suffered (Duty To Mitigate). However, Commercial Law 2005 is silent on whether the responsibility to prove the non-defaulting party’s fulfillment or (non-fulfillment) of Duty To Mitigate belongs to the defaulting party or the non-defaulting party. That said, it is likely that the defaulting party will have the obligation to prove that the non-defaulting party fails to mitigate the damages it has suffered.

One could argue that the non-defaulting party has the burden of proof of its fulfillment with the Duty To Mitigate because Article 304 of Commercial Law 2005 provides that the party claiming for damage must prove the “the loss, the extent of the loss” caused by the breach of the defaulting party. Arguably, “the extent of loss” must be proved by the non-defaulting party should exclude the amount of loss which could have been mitigated if the non-defaulting has fulfilled its Duty To Mitigate (i.e. all reasonable measures have been taken to mitigate the loss). In other words, to prove or request the defaulting party to compensate for a specific amount of damage, the non-defaulting party must take into account the fulfillment of its Duty To Mitigate and is responsible for proving that it has complied with its Duty To Mitigate.

Under the law of Vietnam, in case a contract between a Vietnamese and a foreigner (i) selects Vietnamese law as its governing law for the whole contract, (ii) selects a foreign seated arbitration as the dispute resolution mechanism, but (iii) fails to specify the governing law of the arbitration agreement, it is likely that the law of the country where the arbitration is seated (not Vietnamese law) will be the governing law to such arbitration agreement. This is because:

• Similar to the separability doctrine, which is widely accepted in the practice of international commercial arbitration, the Law on Commercial Arbitration 2010 also provides that the arbitration agreement is "completely independent" from the main contract. Accordingly, the governing law of the main contract should not automatically be the governing law of the arbitration agreement. However, the Law on Commercial Arbitration 2010 does not clarify what is the governing law of the arbitration agreement in the case illustrated above. This is different from common law position where the governing law of the contract will be considered as governing law of the arbitration agreement unless there is evidence to the contrary;