Khóa luận tốt nghiệp: A comparative analysis of commercial dispute resolution in Vietnam and other countries

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‘MINISTRY OF JUSTICE ‘MINISTRY OF EDUCATION AND TRAINING

NGO THANH HANG453628

A COMPARATIVE ANALYSIS OFCOMMERCIAL DISPUTE RESOLUTIONIN VIETNAM AND OTHER COUNTRIES

GRADUATION THESIS

Hanoi - 2023

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MINISTRY OF JUSTICE MINISTRY OF EDUCATION AND TRAINING

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STATUTORY DECLARATION

1 with this, declare that I have written the submitted

Bachelor Thesis independently. The conclusions and datain the Bachelor's Thesis are truthful and rekable/

Confirmation of sxperisor Author of Bachelor's Thesis

Prof. Nguyen Toan Thang Ngo Thanh Hang

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With the culmination of my gradation thesis, I express my sincere appreciation tothose who have been instrioental in the realization of this research and throughout myacademic journey.

I want to express my gratitude to my thesis sipervisor, Professor Nguyen ToanThang for his and acceptance in supervising my thesis, for his patience in helping mewith the draft of my thesis andfor giving me insighful comments. His tmmence Fowveledgeef Comparative La has signftecntly shaped this thiệp

1 would like to thank the professors. lechwers and library staff of Hanot LawUniversity for their enthusiastic mentorship and insighafud lessons chaing my study. Tamgrateful for being promptly provided the necessary information regarding the thesis bythe Comparative Law Incite, Hanot Law University, which motivated me to completethe thesis on hme. Without the help, Iwould encovoiter mary difficulties in implementingiy thests research I gemanely apprectate Prof Dao Le Thu and Prof. Pham Quy Dat forinspiring me in the Comparative Law field since my first year of college. I also thankProf Do Tht Ánh Hong who was incredibly supportive from my graduation thesis‘preparation tothe submission dey

1 am grateful to my family, friend and colleagues who have encouraged andlsupported me diging my shudy anu thesis completion To my family, I am indebted fortheir endless love. encouragement, and nderstanding Tam deeply than to my frendsand colleagues for their companionship and the countless discussions that enriched myInowledge ofthe subject matter.

This thesis would not have been possible without the collective efforts andencotzagement of all those mentioned and many others who have touched my: academicJjowney inverious ways. Thank youfor your invaluable contributions. /

Ngo Thanh HangHanoi Law University, 2023

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LIST OF ABBREVIATIONS.ADR

Pp. (pp)

Alternetive dispute resolutionCommercial dispute resolutionecempli gratia for example)tt cetera (and so forth)id est hat is)

page (Page)paraggaph

United Nations Commission on InternationalTrade Leow

Vietnam Mediation Center

‘Vietnam Inténationel Asbitration CenterVietnam International Commercial‘Mediation Center

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TABLE OF CONTENTSACKNOWLEDGEMENTS.

LIST OF ABBREVIATIONSTABLE OF CONTENTS.INTRODUCTION,

CHAPTER 1 THEORETICAL ISSUES OF COMMERCIAL DISPUTERESOLUTION...

1.1. Concept of commercial disputes and commercial dispute resolution, 8111. Definitions of Commercial Dispute 811.2. Commercial disputes resolution 912. Historical development of commercial dispute resolution mechenisms in Vietnam

13. Noteble legal systemsin other countries on commercial dispute resoluion...14

CHAPTER 2 COMPARISON OF COMMERCIAL DISPUTE RESOLUTIONMETHODS BETWEEN VIETNAM AND OTHER COUNTRIES AT21, Sources of law on commercial dispute resolution in Vietnem and other countsies 17211, Sources of law on commercial dispute resolution in Vietnam 721.2, Sources of law on commercial dispute resolutionin other countries... 18213, Comments on sources of lew on commercial dispute resolution in

Vietnam and other counties. 1822. The regulations of Vietnam and other countries laws on the resolution of

commercial disputes through the Cout. 19

22.1, The regulations of Vietnam on the resolution of commercial disputes through

the Court 19

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2.2.2, The regulations of other countries on the resolution of commercial disputesthrough the Court 22.2.3, Comments on the regulations of Vietnam and other countsie? laws on theresolution of commercial disputes through the Couxt 242.3, Theseguations of Vietnam and other counties ews on the resolution of

commercial disputes through Negotiation 263.31. The seguletions of Vietnam on the sesolution of commezcal disputes trough

commercial disputes through Medietion 332.41, The seguletions of Vietnam on the sesolution of commezcal dsputes trough

axbitetions through Asbitrtion 4i3.5.1. The regulations of Vietnam on the resolution of arbitrations through.

Asbitration. 4L

3.5.2. The regulations of other countries on the resolution of erbitrations through

Asbitration 44

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3.5.3. Comments on the regulations of Vietnam and other countries laws on theresolution of dispute resolution through Arbitration, 46

CHAPTER $IMPLICATIONS TO IMPROVE VIETNAMESE LAW ONCOMMERCIAL DISPUTE RESOLUTION,

3.1, Development trend of non-coust methods of settling commercial business disputes4

311, Online commercial business dispute resolution (ODR) 43.1.2. Arbitration ~Conciliation mechanism, 523.2. Some specific implicetions to improve Vietnamese la on on the resolution ofcommercial disputes 3

CONCLUSION...REFERENCES...

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INTRODUCTION1. Necessity of the Research

In recent years, Vietnam hes camed recognition for its consistent and robusteconomic growth within the region end globally. The Government of Vietnam is actively‘working to create e business‘friendly environment, making commitments to supportinvestors and businesses for long-term, sustainable growth One crucial espect of this

cffortis improving the legel framework for resolving commercial disputes !

(Over the pest 15 years, there hes been an increasing need for Vietnamese businessesand their pertners to look for dispute resolution forums es Vietnam strives for integrationwith global trade The enactment of key legislative instruments such as the Civil

Procedure Code 2015, the Commercial Arbitration Law 2010, and Decree CP on commercial mediation signifies the operetionalisation of strategic reforms outlinedin Resolution No. 49-NQ/TW, dated June 2, 2005. This resolution, issued by the PastyCentral Committee, outlines a comprehensive stretegy for reforming the judicial sector‘until 2020, which encourages resolving disputes through negotiation, medieion, andaubitretion, with cout support Simultencously, following the spisit of the Decision1268/QD-TTg in 2019 approving the "Proposal on perfecting the lay on contracts andsettling contract disputes by commercial asbitration and commercial medietion"promulgated by the Prime Minister which pointed out thet determining the direction toimprove the lay on contracts, the lew on settling contract disputes by commercialarbitration and commercial mediation in the direction of unity, synchronisation, ensuringenforcement to be a key goal

22/2017/NĐ-However, alongside these positive developments are inherent challenges enddifficulties. As the economy expands, the frequency of commercial disputes will likelyincrease, accompanied by the sise in complex cases Failure to address these disputespromptly can adversely impact the business operations of involved enterprises, therebyindirectly hindering overall economic development. There has been a pressing need to

<small>"Atice 2 The Rasohtion No, 49-NQMTW dated Ke 2,2005 ofthe Pobre onthe Judicial Reform Suategy102020</small>

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explore end enhance various avenues for commercial dspute rssolution. Several methodsheve been inwoduesd and acknowledged, including negotistion, ebitrstion, endmediation

While economic development suggests higher likelihood of disputes, an effectiveresolution mechanism is imperative to mitigate potentiel disruptions. The introduction andrecognition of diverse dispute-resalution methods, both domestically and internationally,underscore the necessity for a nuanced understanding of these mechanisms Research onthe lov of Vietnam end some counties around the world on commercial disputeresolution methods from s comperstive perspective aims to analyze, find lessons learned,end solutions for Vietnem. Furthermore, although comparative jurisprudence is a crucialresearch trend and hes wide applicetion in the construction and completion of the law inrecent years, there is very little comparative research heve en broad overview oncommercil dispute settement in Vietnam and other netions

In light of these considerstions, "A Comparative Analysis of Commercial DisputeResolution in Vietwam and Other Countries” was chosen as the topic for my graduationthesis

2. Literature review2.1. Foreign publications

In the world, many research works exist on different aspects of commercial disputeresolution, expressed through various forms, such es monographs, articles published inscientific joumndls, books, audio, video, ete

Regarding the theoretical isme of commercial dispute and commercial dispute

resolution, Indira Carr and Peter Stone (2020)? end Cempbell Dennis (2010) provide the

reader with a clear overview of the complexities of an intemstional sale transactionthrough informed analysis of case lew, legislation, and internstional conventions andrules

Conceming the development of dispute resolution, Ralston (1926) discussed the

— Rane, POM), rina! Trae La, Tyler & Bc Cony

<small>` Campbell Dems (2010), Rerzwbzeul dite rcektion, The Comperane Lae Tarbook of BeersBusnes Toime 314 Special Ise Kove Lav tematic.</small>

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development of conflict settlement from ancient times to the 1900s! The specific origin

of each resolution method can be found in many asticles, such as Hubert Lister Perker

Baron Parker of Weddington (1959)' in "The History and Development of Commercial

Asbitration", which comprehensively discussed commercial arbitration history and what

sxe its differences compared to arbitration in other field or Joseph Batret (2004) with “A

history of eltemnstive dispute resolution: The story of e polticel, sociel, and cultwalmovement”

On the other hand studies on the ley on commercial arbitration in specificjwistictions will bring certein legel values to the Thesis, Some of the examples areincluded Embassy of the United Stetes (2001), "Alternetive Dispute Resolution Rules of

Wisconsin of United States 1997", Cowts and Tribunals Judkciery (2023) in “The

Business and Property Courts of Englend & Weles: The Commercial Cowt Guide",

Robert A. Beruch Bush & Joseph P. Folger (1994)° in “The Promise of Medietion

Responding to Conflict Through Empowerment and Recognition”

To sum wp, it can be seen thet the theoretical bases the sbove-mentioned worksgive are relatively sufficient and suitable to utilize as reference sources in the Thesis.However, some issues have not been clarified about the concept and the comprehensivedevelopment of commercial dispute history, which the following Thesis needs tosupplement. Additionelly, these works heve brought several legal values and given œcomprehensive view, however, the scope of the research is too wide and unauteble forthe curent socio-economic conditions of Vietnam,

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In Vietnam, scientific research on theoretical ismues, including the concept anddevelopment of commercial dispute resolution, is curently limited. Books and articlesrarely go into detail on comparing Vietnamese Law on Commercial Dispute Resolutionwith foreign laws. Typically, there are some works and aticles on each dispute resolution

method or overview of commercial disputes, such as Dương Nguyệt Nga (2007)1 and.

Phan Chí Hiểu (2006)! analyses the concept of business and commercial disputes,

methods of resolving business and commercial disputes (negotistion, arbitration andcout) and make severe recommendations to improve the mr on these methods

"Settlement of economic disputes using negotistion end conciietion" by Tren NgocDung C004); "Perfecting the Inv on commercial reconciistion in Vietnam in the contextof international economic inlsgraion" by Le Huong Giang (2019); “Settlement ofcommercial disputes by arbladion - Operation practices of commercial stbitration centers

in Hanoi cty", by Đ Vin Dai 2018)", Mã Hang Nhung 2010). The above-mentioned

works mainly covered general agpects of CDR methods, and there were in-depth studieson applying these methods in practical cases: However, the trend of the above settlementaethods is changing clearly when the legal framework: and the form of dispute settlementare becoming more and more advanced. Therefore, the above shudies have not synthesizedand updeted most accurately about methods of resolving commercial disputes andpractices in Vietnam

Most of the comparative research on Vietnam's dispute resolution only focuses om

one œ tvo methods, mostly with Laos Saisamone Voravongsa (2017)!* and Singha

'Nghiam chaleun 2013)" compare the legislation of Vietnam on commercial arbitration to

Duong Nguvét ge 2007), ic pong thức gi yết anh chip Wath dowd thương gieo nhấp hit Vit‘Nantrang Gioia lent ộishịp bai quốc

` Bạn Chí Biên 2006), "Thực rạng háp it gã: yet tru chấp khi donh ð Vật Nem", Soe Zoe

‘Qo 12/2006), Van

' Bố Vin Dei 2018), Pp tt rong dương tựa Tệt Nan - Bất và tồn lun bẩn in, Vita.

` Mũ Hing Nhưng (2010), Co sẽ ý luân tục tộncmrệcho‡n dn pp uất về mơng 9i ương mui Ft

‘Nim, LLB Bachelor esis, spervised by LLM Doin Thng Kan, Hanoi Lae UyanzrEy, Hana, Vate

Sesame Veaeangya (011), Thon thiện rong tt omg skp ra chú Dues mg - si pháp hitcianuộc CHDCND Lio với pháp hột ca rie CEEEHEN Mit Ne, Mactar Than, ngtrietdy Prt. Ngyễn

Vi Ty, not La Unser, Hao, Veco,

"Sug NganvaleE 2013), Gi nde roichếp Duong mat bing tong ti. So sô piáp Ine Mit New với

php lucia Công ha cnc nhận Lo, Master Thuss, supervised by Bet Nguyễn Vin Rayan, Hei Las

<small>‘Uauverszy, Hanoi, Vou</small>

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thet of Laos. Similerly, Soneviley Phetsskhone (2020) and Phoungeun Chaleuleth

019) compere the legislation of Vietnam on commercial mediation to thet of Leos‘Tihs, most research on commercial dispute resolution in Vietnam has not given a detailedcomparative perspective between Vietnem and other counties other then Leos

‘As aremult, the study “A Comparative analysis of Commercial Dispute Resolution.in Vietwam and other Countries” does not coincide with prior studies and becomes @completely novel study.

3. Significance of the research

Scientifically, the thesis sunmesizes all methods of resolving commercial businessdisputes currently epplied in Vietnam besed on enelysis and evalustion of concepts,characteristics, and effectivencss of negotistion, mediation, arbitretion, and cowt Itcontributes to the completion of the civil theory system in Vietnamese legal scienceassociated with the current requirements of internstional integration of our country. Theresearch results of the Thesis serve to equip in-depth knowledge for practical officersworking at lew enforcement egencies. At the seme time, it will be an essentiel referencefor seseerchers, legel teeching individuals, sesearch condidates, graduste students, andstudents majoring in dispute resolution at legal educetion institutions in Vietnam,

In practical terms, the research results of the thesis will contribute to building andcompleting the concept of commercial dispute in the legal system and are associated withthe requisements of building « Socilist Rule-of-Law State end the judicial reform processin Vietnam. The thesis contributes several recommendations to improve the effectivenessof settling commercial business disputes in Vietnem based on today's latest enelysis,evaluation, and update, It will be valuable reference material for () levmakers andcompetent authorities in completing the Vietnamese regulations on commescial disputesand (i) enterprises secking dispute resolution methods.

4, Research goals and objectives

‘The research topic sims to clarify the concept of commercial arbitration and to

'*Eureagamn ChaMugh 2019), Hoi gãtơng gi quyết sh chip thương mại theo nhấp hit Lio vi Vit Nan

aot gốc so sinh, Master Thess, supervised by Prof Dang Ngọc Be, Hanoi Law Unavasty, Hanoi,Vua.

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synthesize end analyze related rsguleions in the curent Vietnamese legel system.Moreover, from the comparative law perspective, the Thesis evalustes the reguletions ofVietnamese law on commerciel dispute resolution and some foreign levs to find suitablesolutions. Last but not least, the Thesis provides several recommendations to meet theneeds end deal with current and expected shortcomings regerding commercial abitretionin Vietnamese lew, especially in the context of Vietnam's trade integration with the world

5. Research subject and range

‘The Thesis has two main research objectives. The Thesis initially studies theoreticalissues on commercial dispute resolution, including its history, concept, end definitionSubsequently, the Thesis focuses on 4 mein resolution methods, including Negotiation,Mediation, Arbitration, end Cout, along with the laws of other counties and Vietnam.

Since the topic sims to compare and evaluste the laws of some counties oncommercial dispute settlement, the Thesis belongs to the field of comparative law. Withthe object being types of commercial dispute resolution, the Thesis Focuses on analyzingthe civil end commercial law on this issue. In addtion, the Thesis researches commercialispote resolution methods in Vietnam end other counbies The thesis couse alsoproposes some initisl solutions to solve the inadequacies of curent laws andcomplementary measures to promote the development of commercial dispute resolutionmethods inVietnam in the coming time

6. Research methodologies and methods6.1. Methodologies

To cany out the above-mentioned objectives, the Thesis resoits to Leninism research methodology, dialecicel materialism, and the policies of theCommunist Party of Vietnam and the State on a socielist oriented market economy,democracy promotion, and Socilist Rule-of Law State

Mecxisn-62, Research method

The study also used a vasiety of research methods

First the anelysis method, combining theoretical research with practice, is the main

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method used in this Thesis to clarify the lew on commérciel dispute resolution

Seconcl the synthesis method is used mainly in collecting documents, opinions, andsolutions to complete the law on commercial dispute resolution in Vietnam.

Third, systematic method is used to sequence and find consistency emongcommon commercial dispute resolution legaletion issues

Fourth the jurisprudence comperison method is critical to analyze and compere theews on commercial dispute resolution methods in Vietnem end other countries forimplications to complete the lew

1. Structure of the Research

In eddition to the Preface, Conclusion, and References, the Thesis comprises threeChapters

CChepter 1: Theoretical issues of commercial dispute resolution;

Chepter 2: Comparison of commercial dispute resolution between Vietnam andother countries,

Chepter 3: Implications to improve Vietnamese lew on commercial disputeresolution

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CHAPTER L

‘THE ORETICAL ISSUES OF COMMERCIAL DISPUTE RESOLUTION11. Concept of commercial disp utes and commercial dispute resolution1.11. Definitions of Commercial Disp ute

‘The term "commercial disputes" is increasingly used in legal science, especially ingeneral social life. According to the Vietnamese dictionsry, a dispute is œ tug-of-war

struggle over something thet does not belong to either party.” In other words, « dispute is

4 disagreement or conflict of rights and interests between subjects in a relationship.

Commercial disputes were first mentioned in the 1997 Commercial Law. However,according to this law, a commercial dispute erises from contract's non performance otimproper performance in commercial activities. The concept of commercial disputes andcommercial activities under the 1997 Commercial Lew eliminated many disputes thattt not considered commercial disputes. However, they could be considered as such in 4contemporsry context This created conflicts of nw between national law andinternational conventions

‘The 2005 Commercial Law defines the concept of commercial activites es activitiesto generete profits, including the sale end purchese of goods, provision of services,investment, commercial promotion, and other activities for profit. Under this concept,‘commercial activites” have been expended to include any activity for profit. Thisspproschis consistent with the recently passed 2020 Law anEntesprises.

Law on Commercial Arbitreion or legal documents on commercial mediation alsodoes not cicectly define commercial disputes. However, the concept of “commercialacivitiee" can be understood in a broed sense, which hes crested similarities in theconcept of "commercial activities" and "commercial disputes” of Vietnamese lew with thegeneral stenderds of lew and internetional practice. According to the LCA, commercialactivities involve one or more commercial ects by individuals or business entities,including purchasing goods, providing services, distributing representing acting as

"Hoang Phê 2020), Từ ain Tổng Mt, Hằng Đức Pabishing.

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commercial agents, ete* The breakthrough of the LCA in epproaching the concept of

“commercial activities” to international stendards end legal practices hes paved the weyfor futher consideration by other legal texts when addressing commercial srses

‘Thus, it cen be understood that a commercial dispute is œ conflict regarding thesights and obligetions of the pasties dusing the implementation of commercial ectvities

1.1.2. Commercial disputes resolution

In general, commercial dispute resolution is the selection of forms and appropriateforms thet resolve conflicts of interest between pasties. However, depending on each stageof economic and social development, the level of law enforcement and the influence ofculture on different counties will develop different modes of dispute settlement. Today,under the influence of the market economy end intemeionel economic integrationcounties worldwide have widely recognized and applied forms such as negotiation,mediation, arbitration, courts, te

Ine market economy, with the diversity and complexity of trade relations, theconcept of dispute settlement undergoes radical chenges The State hes graduallyinstitutionalize dispute settlement to enswe maximum business enlitied selfdetermination sights. The settlement of trede disputes is built in the following todirections:

Firct, the State pesforms its role in setting disputes by establishing economic couts‘within the people's court system to heer economic cases

Second socielize commercial dispute settlement activities, create conditions for thedisputing parties to have fll sights in choosing the eppropriete form of dispute settlement,nd at the same time reduce the burden on public authorities by encouraging the patties tonegotiate, mediate when disputes arise and allow the establishment of erbitrtion centers,

concilistion, or other forms of non-governmental dispute resolution to settle disputes!”

‘Thus, setlement of commercial business disputes means that the disputing pasties,through eppropriste forms end procedures, solve problems to eliminate contradictions,

"aril 10) wn @) of he La en Commercial bination 2010

<small>va Thụ Homg Trinh C015), boss legal reform on t-fcaut chpuceerlement methods: Mase ofJirigradence, Fucuby of Last ~ Han National University p11</small>

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conflicts, and disagreements on economic interests to protec their legitimate sights andinterests, This is an arbitration process to clarify the legal rights end obligations of theposties, forcing the breaching party to fulfil its responsibilities to the eggieved party.Settlement in commercial business is matter determined by the disputing pastiesthemselves Thet is the partes to the dispute have the sight to choose the methods ofsettlement freely end the freedom to choose whether or not to perform all acts notprohibited by lew to concliste and resolve conflicts and disagreements of the pasties incommercial business disputes. or the freedom to express the will of the litigants inchoosing the competent authority to settle

Business and trade disputes have become en objective, inevitable market economyphenomenon. When commercial business disputes atise, it is necessary to resolve themtransparently end effectively and protect subjecty legitimate sights end interestsTherefore, the settlement of these disputes needs to meet several principles andrequirements as follows

Firctly, itis fast end convenient end does not limit or hinder commercial businesssctivities. The neture of commérciel business activities is to take place contimuously in øsequence. If the settlement is prolonged, it will effect the business activities of theentities, may be stopped, end the reputation and competitiveness in the market may bereduced... Therefore, prompt end timely settlement is the most basic requirement of thesubjects when disputes arise

Second, it isto estore and meintsin cooperetion and trust relations between pastiesin business and trade, When disputes aise, subjects are afraid of affecting their business

activities, so they want to have the most objective resolution method,

Thrd, it isto keep business secrets and the pasted reputations Trade secrets areuseful information needed to creete success for cơiein brands Competitors in themarketplace find many ways to access thet information. Therefore, any business or entitythet wants to survive for @ long time end be sustainable in the merket needs to protecttuade secrets, which is essential. In audtion, the parties reputation is also @ concem whensettling commercial business disputes because “commercial business activities are

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important and prestigious. If they lose prestige, it is difficult for that enterprise or

individual to develop in the market"

Lastly, it is economically less expensive, This is « necessary requirement thet anyentity needs because the purpose of the trader isto seek profit. The settlement of disputeshas partly effected the interests of the pasties. Therefore, rethucing costs in disputeresolution is one ofthe top priorities.

12. Historical develepment of commercial disp ute resolution mechanisms inVietnam

‘The breekthrough of the LCA in approaching the concept of "commercial activities"to intemational standards and legel practices hes paved the way for futher consideretionby other lege texts when addressing commercial areas.

‘Thus, it con be understood thet a commercial dispute is a conflict regarding thesights and obligetions of the pasties dusing the implementation of commercial ectvities

‘Throughout history, most Vietnamese have hed access to dispute resolution formsthet are more similar to court, Other then cout, interestingly, mediation (or form relating

to medietion) was used fairly early and became a norm Medition was the favoritealternative dispute resolution method in Vietnamese history, codified in the Héng ĐứcLew?

Ít should be noted thet resolving disputes under the influence of family, reletives,end friends, using customs end relationships to reduce disputes, and hoping to find «solution when a dispute arises hes been a familier form in Vietnamese society from very

easly, However, twas rerely done outside of « familial context

Officielly, arbitration as a widely recognized institution for the resolution ofindividual disputes appeared much leter in the nineteenth century because the easliest

<small>'Ngyynn Max Linh 2015), Setiemant of commercial đit by ebinaion- Practical operation of coumercieeebiranon comers Hanot Mase of Xekerudmec, Hanoi Law Unaversay,p 10</small>

Tả Ma Tea, Về Thị Nex (2008), Giác or fi si nhà mabe và pháp de Hật Non, Hanoi Law Uae,Cingemhinda Phhhberp 28 4

Hing Đức Lae: Lice Hing Đức,œr Quấ: Dads Hi Lair so call Lf Dd inh luật mm athe 19

ˆ Phun Duy Nghia 2009), Pip ude mong i Hệt Nen: Quá inh phic in và ác vấn al đất ng, kcee

<small>“độc febonlw com va Bao. raobiwp.a ưng ti-œ-vt han gạt hú tiết vi-ce-t de ate</small>

sax day nghie>, VIBOnline st accessed: 28° tbrmay.2033,< TT gi 2

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document found is @ decision of The Seigon Cowt of Appeal on 8® July 1989, which

recognized an agreement on the selection of a foreigner as an arbitrator in «lend dispute

inthe case of Dương Thị Lành v. Tố Văn Tras *

Vietnam fell under French domination and absorbed the French civil and

commercial legal system.2 A mumber of progressive Civil and Civil Procedure Codes

‘were promulgeted in three regions of Vietnam atthe end of the 19% century and the first

3 decades of the 20% century. Besides the traditional judicial system, commercial courts

hhave been established in mejor cities in Vietnam (Hanoi Hei Phong Da Nang, andSaigon). Commercial dispute rules are elreedy part of complex Civil Procedure Codes

from this period

because the French clonilsts controlled most ofthe industry and commerce, with only afew Chinese acting à brokers in the distribution sector, while most Vieinamese only‘worked us famiers, cafimisn, of Vendort. They have no chance t know the concept of

commercial dispute or conduct commercial dispute in any wey27Aftsr gaining

independence, Vietnam elininates French colonil legacies inciuding the lege systemand commercial dipute, Although existing under the colonil era private agreements oncomm ciel dispute and enforcement of arbitral avards became absent, To setle csputesbehveen sate owned enterprises and other Socialist entities, an “economic commercial

dispute" system was established by Decree 20, dated 14% April 1960. This was modeled

onthe economic lew ofthe former Soviet Union and hay been established from discts

and provinces to the central government 56 The name of this model can be confusing, but

in reality, “economic commercial dispute” is not commercial dispute TM It was a state

` BẾ Văn Đụ G00, Zin no a omg en cide nh & Hộ Demin ci pháp

<small>Jounal Pry Be</small>

= Ng thợ Coe C016), ự i cgi phe Pp ti ad ít Em, Nec Lip thấp Joma,

<small>trin-tongabtmeng navamsa aces 280 ny 2023p?</small>

am Dey Ngũ (008), ipranate 61s pa© Raum Day NGS 2009), upranate 61s pu 3

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administrative agency to settle disputes between state-owned enterprises. In service ofrelations with the socialist blo, the Foreign Trade Commercial dispute Committee (Uy

ban Trọng tit Ngoại thương) and the Maritime Commercial dispute Committee (Ủy ban

Trong tài Hàng hãi) were established in 1963 and 1964 39 These two orgenizetions only

really operated since 1989, when forsign trade relations began to develop with other

countries, outside of the socialist block 3! In March 1993, the above two Commercial

dispute Committee merged to become Vietnam Intemational Commercial dispute

Ta 1994, Decree 116 of the Government was issued allowing the establishment of“Commercial Commercial dispute Centers! This isthe first signl that Vietnam start torecognize the type of commercial dispute in the sense that the world were using, Thesuccess af Decree No, 116/CP wes very limite, if not to say it was a failure to introduce

&modern commercial dispute system? Besides the Vietnam International Commercial,

dispute Center, there are 5 other commercial commercial dispute centers established inHanoi, Bac Ninh, end Ho Chi Minh City, whose practical activities are very limited

“Noticeably, in 1995, Vietnam acceded to the New York Convention (or the United.

Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards) 35

This marked the changes inthe Vietnamese system to develop commercial dispute.

To replace the above Deere, the National Assembly Standing Committe issued

the Ordinance on Commercial dispute 2003 *5 Implementing this Ordinance, the mumber

of commercial commercial dispute centers hes increased from 5 to 8, of which theVietnam International Commercial dispute Center is sill the most important commercialdispute center in Vietnam, with a cestload of about 20 cases per yeer.

‘The 2003 Ordinance continues to be unsuccessful in promoting and developing a

<small>Carl Conifer Leg Diveinution and Bà töen Cordtsben (2013) upranot 65.28</small>

“un 0020), agranete63.pe 3

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<small>` Cage Comelfer Legal Dssgnati sụt Eảm-toơn Coordin C013) cipranote 66,9. 3T</small>

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12 ie to, bos hac Bip 3 Joa 368).

Soya NG 411 CTN of27 Sepunber 1995 of ese of he Sate Prmmgatnghe Ordaunce othe

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modern commercial dispute system in Vietnem”” As a result, the 2010 Lew on

Commercial Commercial dispute was promulgatd 3 In 2014, Resolution

01/2014/NQ-HDTP on Instructions for Implementation of some Provision of the Lew On CommercialCommercial dispute was issued by the Supreme People's Cout Council of Justices. The2010 Law and 2014 Resolution is now the main legal basis for commercial commercialdispute activities in Vietnam

13. Notable legal systems in other countries on commercial disp uteresolution

Every country in the world but two Palau and Saint Kitts end Nevis) hes legislationơn commercial dispute, and out of them, only one that does not have legislation ơn.commercial dispute resolution (the most recent entity to become @ country, South Sudan,

solely have lew on employment commercial dispute” Furthermore, there are currently

172 State Parties to the Convention on the Recognition and Enforcement of ForeignAsbitral Awards or the 1958 New York Convention

Legislation based on the UNCITRAL Model Lew on International Commercial

dispute resolution hes been adopted in 86 States in @ total of 119 jusisthctions The

‘Model Law is designed to assist States in reforming and modemnizing their laws on theubitral procedure to consider the pasticular features end needs of intermstionalcommercial disputes. It covers all stages of the asbitral process from the commercialdispute agreement, the composition and jurisdiction of the arbitral tribunal, end the extentof cout intervention through to the recognition and enforcement of the erbitral award Itteflects worldwide consensus on key aspects of international commercial dispute practicehaving been accepted by States of all regions and the different legal or economic systems

of the world!

<small>Cantal Cumedfor La gal Disenuaution and ation Coordination (2013) sipanote 66,9. 32</small>

© Bhan Hay Hang (2008), Ya cia toc eng hoa động eng ta, oa học hap W Jounal, 346) pp. 22-4

<small>© Aeens Law LLC 2019), Commercial Caumatea] gute access a <ups awn tanatins)- cones]</small>

spe tte comlcemnercialigpte-eof-sord> Intemational Comercial dispute Atomuy, st accessed

<small>21st Faun 2023</small>

<small>Sted Nations Commision ơn “timation Thử Lụy (2073), UNCITRAL,access a ins dimcinalam org/entetsconmerca dig node conmerca_ commercial disp su,"heemutienal Canmrcia đøpMe Atray, last accessed 21 Fray 2013</small>

ted Ngione Conmion on bdemubenal Bade Ly (2023) 0gnø net 79

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The UNCITRAL Commercial dispute Rules provide a comprehensive set ofprocedural rules upon which parties may agree for the conduct of arbitral proceedingsarising out of their commercial relationship and are widely used in ad hoc commercialdisputes as well as administered commercial disputes. The Rules cover all aspects of theeubitral process, providing e model commercial dispute clause, setting out proceduralrules regarding the eppointment of arbitrators and the conduct of arbitral proceedings, and

establishing rules in relation to the form, effect, end interpretation of the evard? The

UNCITRAL Commercial dispute Rules are the most populer commercial dispute rules to

bbe used for sử học commercial dispute #?

There are a handful of jurisdictions reputable for their commercial dispute system,namely Englend, Singapore, Hong Kong, Frence, end Switzerlend, Common betweenthese jurisdictions is their comprehensive legal system for commercial dispute, Out ofthese five jurisdictions, England end France stood out As discussed, Englend heseguably hed the longest history of commercial dispute resolution, as pointed out byWolaver (1934), with trade gid’ board of commercial dispute resolving disputes between

members as early as the 12% century.“ Meamhile, France wes the pioneer of commercial

dispute and alternative dispute resolution in modem times; the Intemational Chamber ofthe Commerce Arbitrel Cout, established in Pasis, celebrates its centennial this yeer

Comparing Vietnamese lew with the comprehensive and rich history of England andFrance's commercial dispute legideion system (coincidently, each is a pioneer ofcommon lew and civil lex) would greatly benefit Vietnam in its effort to perfect itscommercial dispute legislation

‘As such, this Thesis will research the commercial dispute rules in commercialdispute legislation in England and France end compare them to Vietnamese Lew.

<small>`2 Ute Ngiene Conssrien on Bdzmubonal Dade Le (2023) siprancte 79</small>

© Uruted Neins Commasion on International Tade Le (2022), UNCTTRAL Censsvrcal dispue Pls, access

<small>sc cups Iinciralun agfenteaslconmaarial dips inode Do Conmoercl commercial ptelsums> stsccered:2let Fbruary 2023</small>

<small>‘ye ar of Egan and therefore ts conmercn dispute lo, ism ffect forthe jasc of Boghnd, As,sud rtm Helen, ire ofthe font comtries within the Usted ng</small>

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Conclusion for Chap ter 1

Ta Chapter 1 of the Thesis, the historical background and concept of commercialdispute resolution are provided, including the definition and cheractesistics ofthe method,‘After thet, the chapter compares the differences between commercial dispute and courtend identifies UNCITRAL Model Law, Commercial đieputs Ries, end the lew of France

end England as good comparstive subjects to benefit the research,

‘The theoretical issues in Chapter 1 of this Thesis form the basis for the analysis ofcurrent regulstions in Vietnem and other countries in Chapter 2 and the proposal for newegulstions on commercial dispute resolution in Chapter 3

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2.1. Sources of law on commercial disp ute resolution in Vietnam.

As discussed above in the historical section, Decree 116/CP, dated 5 September1994, was Vietnem's first attempt to go st modern and up-to-standerd commercial disputeIn 1995, Vietnam escended to the New York Convention. Accession to the Conventioneens thet any erbitral averd in eny country thet is a Contracting Party to which oneperty to the ewerd is located in Vietnam or whose property is located in Vietnem may berecognized by the Stete of Vietnam for acceptance and enforcement protectionConversely, any Vietnamese arbitral award may be recognized and enforcesble in anyConvention member country.

‘To ensue the legal basis for the operation of commercial dispute resolution centersinstead of economic commercial dispute, on 25 February 2003, the Netionel AssemblyStending Committee issued the Ordinance on Commercial Commerciel dispute, effectivefrom 1 July 2003. However, Vietnam joined the World Trade Orgenizetion just shorlysfter with more pressure on the not perfected Ordinance

On the basis of overcoming the limitetions of the 2003 Ordinance on Commercialdispute, on 17 June 2010, the Netional Assembly of Vietnam spproved the Lew onCommercial Commercial dispute, It includes 13 chapters and 82 articles: The new lawtakes effect from 1 January 2011 and repleces the 2003 Ordinance on CommercialCommercial dispute, which expired on the seme day.

Ta 2014, the 2010 Law was supplemented and clasified by an important document,Resolution 01/2014. Resolution 01/2014 is considered to contain many new and updatedregulations in line with international practice as well es the Model Lew, redhcing some ofthe erroneous interpretetions of commercial law by some courts and helping significantlyimprove the court's support for commercial disputes.

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In French lew, most reguletions, even the most basic of commercial dispute, arerooted in adjudication practice. French courts have made most of the important rules andcase lov on commercial dispute, especially on interostonal commercial dispute

Sources of Commercial Dispute Resolution Law in England

Commercial disputes seated in England, Weles, or Norther Ireland are governed bythe Commercial dispute Act 1996 ("English Commercial dispute Act"), Although theCommercial dispute Act is comprehensive, it dots not codify all elements of Englishcommercial dispte lew, some of which ae found in the common law. The Act is beingreviewed for update in 2023

2.13, Comments on sources of law on commercial disp ute resolution in‘Vietnam and other countries

Most counties including Vietnam, have + high-level lege! document to governcommerciel commercial dispute, In Vietnam, there ere Laws, in England, they havesimiler-level Acts It i rave thet « country governs the field with a document thet is lowerthan the low we have in France's case, However, it should be noted thatthe French Decree(consolidated into a law) on commercial disputes is very comprehensive; it includes 85content articles and 3 more articles compared to the Viemamese lew. Commercialdisputes ee taken very sexiousty by legistetors worldwide

Furthesmore, it can be observed that, in other counties their commercial dispute

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system goes beyond commercial dispute resolution and regulates commercial dispute inother fields, In Vietnam, non-stete administered commercial dispute (which is whet isinternationally considered to be commercial dispute in the context of this research) is onlylimited and confined to a small piece of a lerge picture

‘Similar to other countries, Vietnam is @ Party to the Convention on the Recognitionend Enforcement of Foreign Avbitrel Awards and actively incorporates some of itsprovisions into the Law and Resolution 01/2014

Dissimiler to other counties like France or the United Kingdom, for example,commercial dispute resolution in Vietnem is rarely based on case lew end instead reliesnly on the Jeter of the legislation.

22. The regulations of Vietnam and other countries laws on the resolution ofcommercial disputes through the Court

2.2.1. The regulations of Vietnam on the resolution of commercial disputes‘through the Court

According to the 1992 Law on Orgenization of People's Cout (as amended andsupplemented in 1993, 1995), the cout system consists of the Supreme People's Cou,People's Cousts of provinces and cities under central authority, People's Couts ofisticts, towns, cities under provincial authority, Military cowts, end other courtsstipulated by laws. Under special circumstances, The National Assembly may set upSpecial Courts (Artide 2)

In tems of structure, epest from courts established under laws promulgated before1992, the Supreme People's Cowt and People's Cowts of provinces consist of EconomicCourts, Labor Couts, Administrative Courts, and other specialized courts, which theNational Assembly Stending Committee might establish in necessary circumstances

According to Article 16 of the Law on Orgenizetion of People's Courts 1992 (asamended and supplemented in 1993, 1995): "The manegement of provincial People'scourts in terms of the organization is in cherge of Minister of Ministry of Justice incooréknation with President of Supreme People's court."

According to the 1992 Constitution end detailed by the Law on Organization of

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People's Courts 1992 (as amended and supplemented in 1993, 1995), the President, President, and Judges of provincial People's courts and Military couts are eppointed,released from duty, dismissed by the President of State, not elected end revoked themandate by People's Council at the seme level as previously provided for by law.

Vice-Asticle 127 of the 1992 Constitution stipulates that: the “Supreme People's Coust,Provincial People's couts, Military courts end other courts established by lews arejudicial organs of the Socialist Republic of Vietnam." This means people's cowts areorgans exclusively exercising edjudicative function No other agencies but courts canperform this function.

‘The fonctions of the people's couts are detailed by the Law on Organization ofPeople's Courts 1992 (as amended and supplemented in 1993, 1995), whereby people'scourts ere competent orgens to try criminal, civil, family, economic, labor, administrativecases end to deal with other matters es stipulated by law.

‘The cout is considered a method of resolving disputes at an adjudication agency inthe name of state power, conducted according to strict and strict order and procedures,end the Court's judgment end decision on the dispute, if no voluntery compliance, will beenforced by state coercive power. Suppose dispute resolution by negotistion, condilistion,end the commercial dapute is characterized by respect forthe sight to an agreement or thewill ofthe participeting partes to make a decision In that case, the basic characteristicsof the dispute resolution procedure by the cout are through the operation of the judicialspparatus and in the name of stete power to make judgments thet force the patties to casryout their obligations, including using coercive power, Beceuse it is 8 State judicialagency, the cow's decision is highly coercive, so when one of the pasties does notcomply with the judgment, the Court's decision will be enforced

First, about the Cows juisdiction.According to the provisions of Clause 1, Asticle29 of the Civil Procedure Code, disputes falling under the Cows juisdiction are disputessrisng in business end commercial ectvities between individuals end organizations with‘business registration. together, and all heve profit purposes. According to the provisionsof current lew regarding the jurisdiction of Courts et all levels, testorial jurisdiction, and

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jwistiction of the Coust according to the plaintiffs choice, st should be noted: 3) DistictCourts have jurisdiction to xesolve cases. Resolve commercial disputes, it) If commercialactivites have Foreign elements, the resolution of commercial disputes does not fell underthe juristhotion ofthe District Court but under the jusisdiction of the Provincial C out

Second, the sight to sue for commercial disputes. According to current lew, when &commercial dispute occurs, one of the pesties has the sight to decide to initiate a lawsuit,cither personally or through œ legel representative, to initiate a Inwauit at « competentcout Request to protect ther legitimate sights end interests. The cout only eccepts andresolves commercial đieputes when there is @ petition from the pasties and only resolves‘within the scope of thet petition. If en individual participating in commercial activitiesbrings a lawsut in Cow, the individual must have full subject capacity (have full civillegel cepacity and civil ect capacity). Suppose en orgenizetion participating incommercil activities initiates « lawsuit in Cout to request resolution of a credit contractdispute. In thet case, the organizetion will pastcipete through its legal representative orlegelly authorized representative. Procedural

‘Third, ebout the Court's settlement đeadúne, According to the provisions of Point m,Clause 1, Ai de 29, and Clause 1, Article 179 of the Civil Procedure Code, the time limit,for prepasing for the first instance trial of commerciel disputes is two months from thedete of accepting the case, For cases of complex neture or due to objective obstacles, theChief Justice of the Coust may decide to extend the trial preperation time limit, but not‘more than one month, for credit contract disputes Resolving commercial disputes throughthe courts has major limitetions because the trial time is often longer then othercommercial dispute resolution methods. Cuxrent judicial procedures are often complexend time-consuming, including processing epplicetions, making decisions, and executingjudgments, The Cout's resolution at both first instance and appecl levels can lest up to 1

year In addition, even if the Cowt of Appeal makes a final decision, that decision canstill be reviewed at the cessation level due to the discretion of the Supreme Cowt. Nextre the difficulties of the judgment enforcement process related to handling securedassets In addition, choosing this method also has ceein disadvantages because cout

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procedures lack flexibility because they were previously prescsibed by lew.

2.2.2. The regulations of other countries on the resolution of commercialdisputes through the Court

The regulations of English law on the resolution of commercial disputes throughthe Const

Ta English la, the resolution of commercial disputes through the cowts isintricately govemed by a comprehensive set of regulations and legal principles. Thisfremework provides «structured mechanism for parties seeking reckess, upholds thesenclty of contrectual egeements, end promotes « fair end impedial dispensation of

‘The well-established cout structure is the foundation of commercial disputeresolution within the English legal system. English courts are hicrarchicelly organized,‘with the Supreme Coutt atthe apex, followed by the Cout of Appeal, the High Cour, and

various specialized tribunals This tiered structure ensues that disputes are det with

sppropriately, llowing muanced legel seesoning and expestise to be applied

One key regulation governing commercial dispute resolution is the Civil ProcedureRules (CPR). The CPR governs the contluct of litigetion in England and Weles, providinga set of rules thet parties must adhere to dusing cout proceedings. These rules encompassvarious espects, including the initiation of proceedings, case menegement, disclonwe ofevidence, and the conduct of trials The CPR promotes the efficient and cost-effectiveresolution of disputes while mainteining the objective of echieving justice

In the English legal system, the jurisdiction of the courts to heer commercil

disputes is defined by statutory end common law principles.” The Commescial Court, «

division of the Queen! Bench Division of the High Coust, handles complex commetcialcases, Its judges possess expertise in commercial matters, ensuring that individuals with «deep understanding of the inticacies involved adjudicate disputes. The principles ofequity end feioness underpin the regulstions governing commercial dispute resolution in

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English lew. The couts strive to interpret and enforce contrects thet align with the parte’intentions, emphasizing the sanctity of commercial agreements The doctrine of staredecisis ensues a degree of predictability and consistency in legal decisions, as lowercourts ere bound by the precedents set by higher courts. Cost management is another vitalspect xegulated by English law in resolving commercial disputes. The courts hay: theuthorty to control and ellocete costs inctsred during proceedings, promoting financial‘rensperency end preventing undue sconomie burden on the pasties. This aligns with the‘broader objective of ensuing access to justice while discowagng fivolous or‘uomeritorious tigation.

‘While the reguletions provide « robust framework for commercial dispute resolutionthrough the courts, the legal landscape isnot static. Ongoing reforms, such es those simedat digitizing cout procedures end enhancing the efficiency of case management,underscore the commitment of English law to edapt to evolvingnecds and chellenges.

The regulations of French on the resobution of commercial disputes through theCourt

‘The French legal system, deeply rooted in civil la traditions, provides acomprehensive structure for handling disputes, ensuing faimess, and upholding the ruleof law. The primary avenue for resolving commercial disputes in France is through the

judiciel system. French lew hes established œ specialized judicial framework forcommercial matters, known asthe commercial courts or "tibuoauz de commerce." Thesecouts play œ pivotal role in adjudiceting commercial transactions, contractual

reletionships, and business-related conflicts

‘The juisdiction of commercial courts extends to a wide say of commercialdisputes, encompassing issues such as breech of contract, payment defaults, businesstorts, and other conflicts that emerge within the reelm of commerce, These courts areequipped with judges who possess both legal knowledge and practical expesience incommercial matters, ensuing # specialized and efficient spproach to dispute resolution‘The Code of Commerce, a fundamental piece of legislation in French commercial lew,

patie 1224 Pench Coil Coat

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provides the stetutory foundation for the resolution of commercial disputes through thecourt system. It delinestes the powers, procedures, end jurisdiction of the commercialcourts, The procedural sules are designed to streamline the adjudicetion process andenhance the expeditious resolution of disputes, aligning with the needs of commercial

One distinctive feature of the French legal system is the presence of commercialjudges or "Juges consuleies" within the commercial cots These judges are businessprofessionals elected by their peers as past-time judges. Their inclusion brings a practicalend business-oriented perspective to resolving commercial disputes. This unique featuresllows those with industry knowledge to contribute to the decision-making process.

‘The procedural rules governing commercial disputes ere established to balance sigorand efficiency. The process typically involves submitting written arguments, exchangingevidence, end oral pleadings. The judges, assisted by clerks with legel expettse,meticulously exemine the facts and legal arguments before deciding In adeltion to thecommercial courts, other specialized jurisdictions, such es the Paris Commercial Cotxt forinternational disputes or the Administrative Tribunal for disputes involving publicentities, contribute to the nuanced landscape of commercial dispute resolution in France

‘While litigetion through the courts remains robust and relisble mechanism, Frenchlaw also acknowledges ADR methods. Mediation and arbitrtion are encouraged; pastiescan voluntarily opt for these mechanisms to resolve their disputes. However, the coutsystem remains @ cornerstone, especially when a binding and enforceable decision is

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In Vietnam, the resolution of commercial disputes through the cout system isprimarily govemned by the Vietnamese Civil Procedure Code and the Commercial Lew‘The court system is well-esteblished, with a tered structure thet includes district cout,provincial courts, and the Supreme People's Court. The legel process is characterized byen inquistodel approach, where the cout actively investigates the case and gathersevidence. While this can expecite proceedings, it may also limit the adversesiel nature ofthe process

One notable feature is the emphesis on concilietion and medistion before coutproceedings. The law encourages perties to ettempt altsmative dispute resolution methods‘before resorting to litigation This reflects a commendable effost to promote efficiencyend emiceble resolutions, sligning with the giobd trend towards altemative disputeresolution mechanisms

Tuming to Frence, the French legel system, rooted in civil lay traditions,Significantly emphasizes written law and legel doctrine. Commercial disputes fall underthe jwistietion of specialized commercial courts, known as "tibuneux de commerce"These courts, composed of experienced business professionals, contribute to thespecialized nahvs of commercial litigation The French legel system also recognizes theimportance of elternative dispute resolution, with mediation geining prominence in recentyears. This reflects « pragmatic epprosch, allowing partes to explore non-adversasialavenues before entering the cout system.

In England, the resolution of commercial disputes is govemed by a sophisticatedlegal fremework, with the foundation laid by the common lew system. The cout system,including the Commercial Cout, showcases a sobust and edversaiel approach to disputeresolution The adversarial nsture of English litigation allows pasties to present their casesthoroughly, with extensive oral arguments and cross-examination. This contributes todeveloping « tích body of case lew, providing legel practitioners with valuableprecedents. The English legal system also embraces sltemetive dispute resclutionmethods, such as arbitration, often preferred for flexibility and confidentiality. TheArbitration Act of 1996 solidifies England's commitment to ebitration as œ viable

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sltemnative to cout proceedings

Comparing these jurisdictions it is evident thet Vietnam places a strong emphasiscon pre-litigation medistion, reflecting a proactive approach to dispute resolution. France,swith ite specialized commercial courts, combines civil lew principles with e recognition

of altemative methods. England, rooted in common lew treditions, showcases e robustadversesiel system complemented by a strong culture of arbitration

‘The regulstions on the resolution of commercial disputes through the cout systemin Vietnam, France, and England reflect the diverse legel traditions and approaches todispute resolution. Each jurisdiction hes strengths and areas for improvement, and «comparative analysis provides « valusble perspective for legel scholars end policymakersUnderstanding the nuances of these legel systems contributes to the ongoing globaliscourse on effective and fair dispute-resolution mechanisms

23. The regulations of Vietnam and other countries laws on the resolution ofcommercial disputes through Negotiation

23.1. The regulations of Vietnam on the resolution of commercial disp utesthrough Negotiation

Negotition is the first form applied to settle when a dispute between the partiesoccurs, especially used in the economic field, Instead of resorting to the intervention of «third pasty, such as the cout or commercial dispute, the pasties to the dispute will jointly

sgyee and discuss how to retolve the issues in dispute This method is cersied out on @

voluntary basis, goodwill ofthe pasties, not coerced by anything

Negotiation is the most common and common method of dispute resolution widelyspplied by the disputing pasties to settle all disputes arising in sociel life, especially incommercial activities. In other words, negotiation is « method of resolving disputesthrough the disputing pasties jointly discussing, self-medisting and resolving arisingdisagreements to eliminate disputes without the assistance or judgment of any third part.

‘Through negotistion, the settlement of disputes in business in general by the partiessitting down end negotiating is the expression of freedom of agreement and freedom of

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isposition of the disputing parties. The process of negotiating negotisdionsin business toresolve disputes can be cersied out in many ways: direct negotistion, indirect negotiation,end combining direct negotition with indirect negotiation

This method of dispute resolution is often chosen by the majority of traderswhenever a dispute arises because of the simplicity of the method, low cost, not being,bouad by complicated legal procedures, reputetion as well as the maximumconfidentislity in business, and the degree of herm to the cooperstion relationship‘between the pasties also low, even enhance mutual understending end cooperation aftersuccessful negotistion. With the definition stated above, the negotiation method has threemain characteristics as follows:

Firctly, this method of dispute settlement is implemented by the internal settlementmechanism (a seif.settlement mechanism) through the fect thet the disputing pesties meetto discuss end agree to sesolve axising disagreements by themselves without the presenceof a third party to assist or make a ruling. Conditions for negotisting «trade dispute: Firstof all, it must be considered setisfactorily: if « trade dispute occurs, the perties wish todliminate conflicts, overcome losses, continue to meintsin cooperative relations, and thepesties have the spiit of goodwill, eppeasement, respect and prestige for each other.

Secondly, the negotiation process between the parties is not bound by any legalprinciples or stereotypical provisions of the lew on dispute settlement procedures,Vietnam's lew only recognizes negotiation as e method of settling commercial disputes(Asticle 14 of the 2020 Investment Lew, Asticles 9 and 38 of the 2010 Lew onCommercial Commercial Dispute, Article 317 of the 2005 Commercial Law) without enyprovisions governing the mechenism for settling commercial disputes by negotietion.

Thirdly, the implementation of the negotisted results completely depends on thevoluntasiness of cach disputing party without any legal mechenism to enforce the partiedagreement in the negotiation process. Settling commercial disputes by negotiation methodis an expression of the disputing pestieg sight to freedom of agreement end disposition‘The pasties themselves propose solutions end compromise with each other according tothe order endl procedures chosen to resolve arising disagreements without the pesticipation

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or intervention of eny state agencies. Negotiation can be done in many ways such asdirect negotiation, indirect negotistion and e combination of both Each method ofnegotiation has cestain advantages and limitetions

‘Therefore, when negotiating to resolve conflicts in disputes, the partes need to haveviews, attitudes, will, goodwill and avereness to resolve conflicts well to avoidprolongation or stelsmate. When one or the disputing pasties lack understanding of thefield in depute, are not aware of their postion on the possibility of winning or losing ifthey have to pursue the case atthe jurisdiction or do not have the etitud: of cooperativeefforts lack goodwill and honesty inthe negotition process the possibility of success isvery slim, Negotistion goels end results are often not achieved In addition, the results ofnnegotitions are not guaranteed by institutions of state power, which can lead to abuse inthe negotiation process

Vietnam's lew only stops et secognizing negotistion as a method of settlingcommercial disputes (Article 14 of the 2020 Investment Law, Asticle 317 of the 2005Commercial Law...) without eny provisions governing the mechanism for settlingcommercial disputes by negotiation (including subjects, manner of proceedingtiming... However, in practice, negotiation can be conducted by two parties meeting tonegotiate or one pasty sending « complaint to the other end the other party responding tothe complaint

<small>- Negotiating by the two perties mectingis lso known as direct negotiation</small>

When a dispute arises, the two perties meet to agree and negotiate a settlement‘When meeting, both parties can express their intentions frankly, stete thei opinions, grasp

ond understend the aspirations of the other party and thus the parties cen resolve thedispute However, in forsign trade, negotieting by mecting is often costly and time-consuming, so the two sides often meet to negotiete gas with fevorable conditions end forcomplex, lage-vdlue disputes, On the other hand the two pasties can also meet tonegotiate after negotiting by complaint end responding to the complaint without reachingarent

<small>- Negotiate by complaint and respond to complaints</small>

</div>