Hoàn thiện pháp luật về hoà giải thương mại ở việt nam trong bối cảnh hội nhập kinh tế quốc tế tt tiếng anh

MINISTRY OF EDUCATION

MINISTRY OF JUSTICE

AND TRAINING
HANOI LAW UNIVERSITY
========&========
LÊ HƯƠNG GIANG

TOPIC
IMPROVING THE LAW ON COMMERCIAL MEDIATION
IN VIETNAM IN THE CONTEXT OF INTERNATIONAL
ECONOMIC INTERGRATION

Major:

Economic law

Code:

9 38 01 07

DOCTORAL THESIS OF LAW

HANOI - 2019


Thesis is completed at:
HANOI LAW UNIVERSITY

Supervisors:

1. Assoc.Prof.Dr. Dương Đăng Huệ
2. Dr. Đoàn Trung Kiên

Committee member (Opponent) 1:
Committee member (Opponent) 2:
Committee member (Opponent) 3:

Thesis is defensed with Doctoral thesis Committee organized at Hanoi
Law University, date
time
year

Available at:
1. National Library of Vietnam
2. Library of Hanoi Law University


 

2
 


LIST OF PUBLICATIONS RELATED TO DOCTORAL THESIS

No.
1.

Name of publication

Journal

Number/

Page

Year

number

Commercial mediation-

State

and 10

Prospect and proposal for

Law Review (342)/2016

33-38

building up the relevant law in Journal
Vietnam
2.

Some comments on Decree

Legislative

24 (352)/

No.22/2017/ND-CP of

Studies

12/2017

Government on commercial

Journal

45-52

mediation in Vietnam
3.

4.


 

German law on commercial

State

and 7

mediation and some legal

Law Review (363)/2018

advices for Vietnam

Journal

Evaluating current regulations Legal

9 (121) -

on commercial mediators in

Sciences

2018

Vietnam

Journal

3
 

24-34

30-36


INTRODUCTION OF THESIS
1. Necessary of the research

Currently, Vietnam is on the path of economic development and
integration. As a member of the World Trade Organization (WTO), signing newgeneration free trade agreements with a lot of comprehensive commitments,
Vietnam is playing the same game with developed countries around the world.
Therefore, our State is making the effort to create a dynamic and modern
economy, review and supplement the legal system for ensuring compatibility
with that development and integration. One of them is developing modern
commercial dispute resolutions such as arbitration and mediation. The policy in
promoting the use of alternative dispute resolutions (ADRs) is to reduce the
burden on the court system as well as to diversify business dispute resolutions
which is reflected in the Resolution No. 49-NQ/TW of the Politburo dated June
2, 2005 on the Judicial Reform Strategy to 2020: "Encourage the settlement of
some disputes through negotiation, mediation and arbitration; Courts support
them by recognizing that settlements".
Decree No. 22/2017/ ND-CP of the Government on commercial mediation
(hereinafter called Decree No.22/2017/ND-CP) is a new step to transform the
commitments with the WTO on the commercial mediation into national law.
Establishing the legal framework for commercial mediation also makes the
Vietnamese legal system more suitable with international law, such as the
UNCITRAL (United Nations Commission on International Trade Law) Model
Law on International commercial mediation (2002, amended 2018) (hereinafter
called UNCITRAL Model Law) and the laws of some other countries in the
world. Nevertheless, the further study and improvement of the law on
commercial mediation in Vietnam this period is suitable with the development
needs, the policy of improving the market economy in Vietnam and the trend of
international integration. For these reasons, Ph.D. candidate have chosen subject
for doctoral thesis: "Improving the law on commercial mediation in Vietnam in
the context of international economic integration".
2. Purposes and research tasks
The purpose of the thesis is to systematize and to deepen the theory of
commercial mediation; as well as to study and to evaluate the current status of

the law on commercial mediation in Vietnam; finally to contribute to improving
the law on commercial mediation in Vietnam.
To achieve the purpose of research, the task of the thesis is:
- Systematizing, studying and assessing legal opinions on commercial
mediation, conceptualizing, analyzing the legal characteristics of commercial
mediation, determining the factors governing the law of commercial mediation.


 

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trade awards associated with the context of international economic integration,
determining the form and content of legislation on commercial mediation;
- Synthesizing, analyzing and evaluating the advantages and disadvantages
of Vietnam's current legislation on commercial mediation and applying the lawcomparison methodology to make the evaluation on current regulations of
Vietnam with some of the outstanding regulations of the typical countries on
commercial mediation such as Germany, Singapore, Australia and the
international regulations of UNCITRAL Model Law;
- Based on the orientations for improving the law, this thesis provides
general solutions and specific solutions to improve the law on commercial
mediation in Vietnam, and give recommendations following the policy
guidelines of the Party and State, meeting the rules of mobilization of the market
economy and the reality demands in Vietnam in the current period.
3. Objects and scope of research
The objects of the research: Legal opinions on commercial mediation
including opinions of scientists at both national and international level in
published scientific works; current regulations on commercial mediation of

Vietnam, some provisions on UNCITRAL Model Law and some typical
countries on this field.
For the requirements of capacity, the thesis would be limited in the scope of
research:
In terms of research space, thesis focuses on the research on Vietnamese
law. Some international laws and regulations of other countries are only for
reference and comparative assessment in order to make the lessons for the
improvement of Vietnamese law, including the UNCITRAL Model Law,
national legislation of Germany, Australia, Singapore and some other countries;
In terms of research time, the thesis studies the socio-economic context,
Vietnamese law since the Sixth Party Congress (1986) to now, focusing on the
period of international integration.
In terms of research content, the thesis only deals with mediation in the
field of commerce; conciliation and mediation in other fields such as civil and
labor would not be covered in thesis. This thesis also deals with commercial
mediation as an independent resolution for commercial dispute cases governed
by Decree 22/2017/ND-CP.
4. Research methodology
To achieve the purpose of research, the thesis apply a combination of many
research methodologies:
- Methodology of collecting information from researches in scientific works
related to commercial mediation at both national level and international level.
Then using the law-comparison methodology to determine the problems that


 

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have been resolved, the direction of scientific issues should continue to be
studied.
- Methodology of dialectical materialist methodology to find the
independence and the relationship between commercial mediation and other
modes of dispute settlement.
- Methodology of systematizing and synthesizing, analyzing legal concepts
to solve the problem of commercial mediation theory.
- Methodology of analyzing, collating and comparing in law to make the
comment on the current status of commercial mediation law in Vietnam.
- Methodology of interpretation, inductive and prediction to make proposals
and solutions to improve the law on commercial mediation in Vietnam.
Among the above methods, the methodology of systematizing, analyzing
and comparison of law is used primarily and throughout most of the content of
the thesis.
5. Research results and new contributions of the thesis
Based on the selection of the results of previous studies on commercial
mediation, the thesis has some new scientific contributions:
Firstly, the thesis uses the methodology of systematization and analysis to
deepen some of the theoretical issues including the concepts and legal
characteristics of commercial mediation, the concept of law on commercial
mediation, formulation process, form and content of commercial mediation law
in Vietnam.
Secondly, the thesis uses the method of collecting information and
analyzing and collating to clarify the role of commercial mediation and the
elements affecting to commercial mediation in the context of economic
integration, and show how the current international economic integration in
Vietnam have the demands and challenges for commercial mediation;
Thirdly, the thesis uses the analytical method to provide comments on
current Vietnamese legislation in Decree 22/2017/ND-CP and Chapter XXXIII

of the Vietnamese Civil Procedure Code (2015) on the issue of commercial
mediators, the organization of commercial mediation, the settlement of disputes
and the management and support of the State for commercial mediation;
Fourthly, use the comparative law methodology to clarify the degree of
integration of Vietnam's commercial mediation legislation with the UNCITRAL
Model Law and the laws of some countries such as Germany, Singapore, and
Australia;
Fifthly, the thesis analyzes the orientations for improving the law on
commercial mediation in Vietnam to ensure that it is considered as an effective
tool for traders. The thesis also give a number of solutions to improve the form


 

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and content of legislation on commercial mediation that are suitable for the
context of international economic integration in Vietnam at present.
6. Structure of thesis
Apart from the introductory part, the literature review, conclusions, list of
references and appendices, the main contents of the thesis are divided into three
chapters with the following specific contents:
Chapter 1: Theoretical issues on commercial mediation and law on
commercial mediation
Chapter 2: Current status of Vietnamese law on commercial mediation
Chapter 3: Orientations and solutions for improving the law on commercial
mediation in Vietnam

 

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LITERATURE REVIEW
1. Evaluation of national and international scientific publications on issues
related to the topic
1.1. Evaluation of theoretical studies on commercial mediation
Firstly, in terms of the concept of "commercial mediation", there is no
scientific work in Vietnam to systematize the concept in domestic and foreign
projects. In addition, there is much debate between using terms "conciliation"
and "mediation". Thus, Ph.D. student has found that the further studies of the
concept of "commercial mediation" on the basis of systematization and synthesis
of the results of published research is necessary.
Secondly, in terms of the legal characteristics of "commercial mediation",
although many previous studies have identified the characteristics of commercial
mediation, however, Ph.D. student has found that it was not yet completed.
Authors in previous writings have mostly pointed to the basic principles of
dispute resolution through commercial mediation, but have not yet fully
addressed other legal characteristics such as nature, subjects, purposes, and
procedures of commercial mediation.
Thirdly, in terms of classification of "commercial mediation”, Ph.D. student
has found that there is no in depth research on this issue. Although, in some
journals, some authors have suggested ways of mediation, but mainly giving
information, without distinguishing the types of commercial mediation according
to specific criteria.
1.2. Evaluation of research on theoretical issues on commercial mediation

law
Theoretical issues on commercial mediation law are not really addressed by
Vietnamese and international scholars. Major studies have explored the
experience of some countries on commercial mediation. Some issues have been
controversial such as conferences, seminars, but not yet clarified by scholars such
as the concept of commercial mediation law, the regulatory elements of
commercial mediation in the context of international economic integration, the
legal structure of commercial mediation.
1.3. Evaluation of research on the current legal status of commercial
mediation law
Studies on the current status of commercial mediation law in Vietnam are
mainly aimed at identifying the lack of legal framework for commercial
mediation and the recommendation for Decree 22/2017/ND-CP. In the current
context, Decree 22/2017 / ND-CP has been issued; further studies is necessary.
These international studies on commercial mediation are also valuable sources of
reference for the Ph.D. candidate in comparing the law and the lessons learned
for Vietnam in the process of improving commercial mediation law.


 

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1.4. Evaluation of researches on solutions to improve the law on commercial
mediation in Vietnam
Legal scientists have also expressed their opinion on the need to improve
the law of dispute resolution in a market economy. Some researchers have given
different views on the development of a law on commercial mediation. Some

authors also made specific recommendations on the content of legislation. In
addition, some proposals emphasize the support of the State to commercial
mediation so that this method is more developed. However, Ph.D. candidate find
it necessary to continue to make more suggestions on general solutions in
lawmaking as well as others to promote commercial mediation development in
Vietnam. Proposals to complete the law in previous doctoral thesis, scientific
projects was without the appearance of Decree No. 22/2017/ND-CP. A number
of later journals have offered valuable references and practical applications, the
thesis will continue to inherit the results of that researches and develop further
arguments.
2. The issue needed to be solved by the thesis
Firstly, continuing to systematize and deepen the concept and legal
characteristics of commercial mediation.
Secondly, analyzing the role of commercial mediation in the context of
international economic integration.
Thirdly, analyzing theoretical issues on commercial mediation law.
Fourthly, analyzing and evaluating the current status of commercial
mediation law in Vietnam.
Fifthly, the thesis would point out the requirements and solutions to
improve the commercial mediation law in the context of international economic
integration in Vietnam.
3. Research questions, research hypotheses, expected research results
3.1. Research question 1: What is commercial mediation in Vietnam?
Research hypothesis: Commercial mediation is an independent, out-of-court
dispute resolution process based on the principle of free will in business and
commercial relations.
Study results: This research question is expected to solve in Chapter 1. The
thesis will systematize and analyze the concept of commercial mediation and the
four legal characteristics of nature, subject, purpose and procedure to clarify the
independence, out-of-court and free will of commercial mediation.

3.2. Research question 2: Which type of intervention that State should apply
to commercial mediation in the context of international economic
integration in Vietnam?
Research hypothesis: The law should be adjusted with the type of
recommendations and supporting, should not use administrative measures.


 

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Expected results: The research questions are addressed in Chapter 1 and
Chapter 2, based on the nature of commercial mediation, the form and content of
commercial mediation legislation in order to make the explanation for research
hypothesis.
3.3. Research question 3: Does the current law in Vietnam on commercial
mediation respect the nature of commercial mediation, meet the practical
needs and requirements of suitability in the context of international
economic integration?
Research hypothesis: The law on commercial mediation in Vietnam
respects the nature of commercial mediation but it is not sufficient; is able to
meet a part of practical needs and the suitability requirements of legal documents
system in the context of international economic integration.
Expected results: Analyze and prove two factors: (i) The current law
respects the nature of commercial mediation but does not clearly distinguish
mediation with arbitration; (ii) The current law meets the need for recognition of
commercial mediation, the establishment of commercial mediation subjects, the
establishment of a mediation procedure and the recognition of the State for the

results of mediation, however, there are still some points that are incompatible
with international legal trends as well as the laws of some developed countries.
3.4. Research question 4: What should the State do to improve the law to
ensure the development of commercial mediation model in Vietnam?
Research hypothesis: The government's promulgation of policies and
legislation on commercial mediation should be based on practical requirements
and consideration of integration factors, respecting the basic principles of the
commercial mediation as well.
Expected research results: The research question is expected to solve
throughout the thesis. The thesis provides and demonstrates the issues that the
State should do: (i) Proposing general solutions for the promulgation of Laws
and policies promoting development of commercial mediation; (ii) Proposals for
the development, supplementation or modification of detailed legal provisions on
commercial mediation.
CONCLUSION OF LITERATURE REVIEW


 

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CHAPTER 1: THEORETICAL ISSUES ON COMMERCIAL
MEDIATION AND LAW ON COMMERCIAL MEDIATION
1.1. Theoretical issues on commercial mediation
1.1.1. Concept and legal characteristics of commercial mediation
1.1.1.1. Concept of commercial mediation
From an academic perspective: The concept of mediation has long been
used to reflect the settlement of disputes between parties in a spirit of goodwill,

with the involvement of third parties. In Vietnam, as well as in the world,
scholars have largely proposed the concept of " mediation " without introducing
the concept of "commercial mediation".
From a legal perspective: Similarly to the concepts that scholars have
developed, the laws of some countries such as Germany, the United States, and
Singapore have mostly only the concept of "mediation" which is exist in legal
documents regulating the mediation relationship in general, not just the
mediation of commercial disputes. Differently with the other countries, the
provisions on mediation in a general law on mediation, Vietnam regulates
"commercial mediation" in a Government decree adjusting commercial
mediation relations, so the definition refers directly to the term "commercial
mediation”.
The concept of mediation in relation to conciliation: Ph.D. students suppose
that there is not necessarily a distinction between mediation and conciliation,
which may be called mediation in common. However, in conciliation, the parties
may use different methods of mediation depending on the need and willingness
to settle the dispute, the extent of the mediator's involvement is therefore
different. .
From the above analyzes, commercial mediation could be understood as
follows: Commercial mediation is a independent method of resolving commercial
or business disputes, whereby the disputes of parties would be conducted by a
neutral third party (called commercial mediator) chosen by the parties in a
procedure with principles of voluntary, confidential; commercial mediators
support and help disputed parties reach a settlement with a consensus opinion on
the basis of self determination.
1.1.1.2. Legal characteristics of commercial mediation
Firstly, in nature, commercial mediation is independent, alternative and outof-court which is use to resolve business and commercial disputes.
Secondly, there is always at least one commercial mediator conducting the
mediation case.
Thirdly, the purpose of using commercial mediation is that the parties wish

to obtain a consensus settlement on the basis of self-determination.


 

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Fourthly, commercial mediation has a more flexible, friendly and
confidential dispute resolution procedure with parties at a higher level than the
arbitration and the court.
1.1.2. Classification of commercial mediation
1.1.2.1. In terms of the form of commercial mediation
Statutory commercial mediation: A form of dispute settlement in a
commercial mediation organization and in accordance with the mediation rules of
that organization. In Vietnam, where the parties choose this mode of commercial
mediation, the parties may choose a commercial mediation center or arbitration
center registered commercial mediation.
Ad-hoc commercial mediation: A form of dispute settlement by commercial
mediator(s) chosen by the parties and that mediator(s) conduct the case
independently and not under the mediation center control.
1.1.2.2. In terms of mediation method
The classification of mediation by method is with the purpose to know how
mediators conduct the cases. The types of mediation referred to below are not
transferable to the law. Some mediation methods are settlement mediation,
facilitative mediation, evaluative mediation and transformative mediation. The
classification of mediation according to this criterion mainly exists only in
academia and practical as well. The law does not contain provisions on mediation
methods under this criterion. From a research perspective, this classification is

necessary to clarify the role and extent of mediator interventions in the dispute.
However, from a legal point of view, the classification of commercial mediation
of this type does not very meaningful.
1.1.3. The role of commercial mediation in the current context of
international economic integration in Vietnam
Firstly, commercial mediation contributes to improving the level of
business freedom in the Vietnamese market.
Secondly, commercial mediation reduces the burden on the court system.
Thirdly, commercial mediation is a tool to help the State implement the
policy of international economic integration and sustainable economic
development.
1.2. Theoretical issues on law on commercial mediation
1.2.1. The concept of law on trade conciliation
In the first level, the law on commercial mediation includes regulations on
commercial mediation directly and indirectly, which are stipulated in different
legal documents such as the Civil Code, Commercial Law, Investment Law,
Consumer Protection Law, Commercial Arbitration Law, Civil Procedure Code,
etc.


 

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The second level, the law on commercial mediation is a part of the
commercial and business law, which contains direct regulations governing the
relationship between the disputing parties in commercial mediation relationship,
the relationship between the mediators, mediation organizations with the parties

to the dispute and the State management toward commercial mediation. This is
also the approach to the concept of " the law on commercial mediation" in this
thesis.
The concept of law on commercial mediation could be understood as
follows: The law on commercial mediation is the total legal norm promulgated
or recognized by the State to regulate the relations of commercial mediation.
1.2.2. Process of formation the law on commercial mediation in Vietnam
The law on commercial mediation in Vietnam has a fledgling history,
which can be said to be rather late in comparison with other modes of dispute
resolution methods. Commercial dispute resolution procedures outside the courts
generally are only formed and developed when the economy moves to a market
economy. However, even in the first legal documents, when discussing the way
to settle civil and economic disputes, there is no existence of the model of
mediation. The Ordinance on Economic Contracts of the State Council No. 24LCT / HDNN8 dated 25 September 1989 referred to only in Article 7: "Disputes
arising from the performance of economic contracts shall be resolved by
negotiation between themselves or bring to economic arbitration." Ordinance of
the State Council No. 52-LCT / HDNN8 dated 07 May 1991 on civil contracts
does not mention measures to mediate disputes in the field of civil and
commercial business. The process of commercial law mediation is divided into
two major stages:
• Period from 1995 to 2015: There is no specific regulation on commercial
mediation. Mediation was first introduced in the Civil Code (1995) on the article
"Principles of Mediation", and then the Commercial Law (1997) also recognized
the mediation of commercial business disputes. Since then, legal documents in
the civil and commercial sector continue to recognize this model. Some of the
more specialized laws, such as the Investment Law, Consumer Protection Law
also have regulations on mediation. However, the general point of these legal
documents is that there is only formal recognition without specific provisions for
commercial mediation.
• Period from 2015 up to now: Phase with specific legal provisions on

commercial mediation (the National Assembly promulgates the Civil Code in
2015, the Government issued Decree No. 22/2017 / ND-CP). The first specific
content of the commercial law system is the Civil Procedure Code No. 92/2015/
QH13, which stipulates that "requirement for recognition of results of mediation
outside the court" is one of the civil requests falling under its jurisdiction at the


 

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Court (Article 27); the contents are concretized in Chapter XXXIII on procedures
for recognition of conciliation results outside courts (from Article 416 Article
419). Decree No. 22/2017/ND-CP dated February 24, 2017 on commercial
mediation promulgated following the Prime Minister's Decision No. 808/QDTTg of June 29 on the promulgation of an action plan to implement the overall
strategy for the development of the service sector of Vietnam by 2020. In order
to finalize the legal framework for commercial mediation in Viet Nam, on 26
February 2018, the Ministry of Justice promulgated Circular No. 02/2018/TTBTP issued and guided the use of some forms of organization and operation of
commercial mediation.
1.2.3. Factors controlling the law on commercial mediation in the context of
international economic integration
1.2.3.1. Orientation and policies of the Party
The policy of encouraging commercial mediation development is reflected
in Resolution No. 49-NQ/TW of the Politburo dated June 2, 2005 on the Judicial
Reform Strategy to 2020 on "encouraging the settlement some disputes through
negotiation, mediation, arbitration; The court shall issue a decision approving the
settlement"; Resolution No. 48-NQ/TW by the Politburo on May 24, 2005 on the
strategy for building and improving the Vietnamese legal system up to 2010,

orienting to 2020 also confirms the orientation for construction and improvement
the law in order for international integration, the State must "improve the law on
economic dispute resolution (arbitration, mediation) suitable with international
commercial practices." One of the factors facilitating the development of
mediation in Vietnam is the policy to develop and apply the case law in the court.
Specifically, Resolution No. 48-NQ/TW of the Ministry The guiding principle is
that "... the use of cases and customs (including international trade practices and
rules) and rules of professional associations...”
1.2.3.2. Traditional factors and social needs in the context of integration
The traditional factor is twofold: the adequate side is that Vietnamese
society is community-based, harmonious, combining and flexible, respecting
self-esteem; the inadequate side is in some of the features such as small business
practices, arbitrary habits; limited vision, short-term thinking, lack of linkage,
community; relationship-oriented, bureaucratic, dependence, lack of credibility.
The current social demand for trade mediation is quite large. Traders want a
more flexible method of dispute resolution than procedural ones, but the results
must still be valid.
1.2.3.3. The context of the integration economy
A number of factors such as the recognition of the market economy, the
expiration of the reserve-clause period as committed to the World Trade
Organization (WTO), regional integration (ASEAN), the signing of new


 

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generation agreements, becoming the 84th member of the Vienna Convention on

International Contracts for the International Sale of Goods (CISG).
1.2.4. Form and content of law on commercial mediation
1.2.4.1. Legal form of law on commercial mediation
In terms of the form of legal documents regulating the relations of commercial
mediation, Vietnam does not elaborate the specific Law on commercial
mediation, only the sub-law documents exist, including the Government's Decree
No. 22/2017/ND-CP on commercial mediation and Circular No.02/2018/TT-BTP
of the Ministry of Justice guiding the use of some forms of organization and
operation of commercial mediation. The legal document regulating commercial
mediation is included only legal documents that provide the basis for the
execution of commercial mediation, list commercial mediation as a means of
resolving disputes that may be selected by the disputed parties such as
Commercial Law, Investment Law, and Consumer Protection Law.
1.2.4.2. Legal content of law on commercial mediation
In the world, there are two tendencies to legislate mediation regulations: Generallevel (such as Europe, typically Germany), specific-level (such as Asia, typically
Singapore). Vietnam follows a specific-level model that includes groups of
regulation on commercial mediation such as subjects of mediation (mediators
and commercial mediation organizations); process of commercial mediation
(principle, competence, procedures and results); State management of
commercial mediation. The content of Vietnamese regulation on commercial
mediation is complex and contains many administrative provisions by the State.
CONCLUSION CHAPTER 1


 

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CHAPTER 2: CURRENT STATUS OF VIETNAMESE LAW ON
COMMERCIAL MEDIATION
2.1. Regulations on commercial mediators
2.1.1. Regulations on conditions for practicing commercial mediators
2.1.1.1. Standard requirements for practicing commercial mediators
Vietnamese law currently applies both quantitative and qualitative
standards to the practice of mediators. Concerning quantitative standards, the
mediator must be a person with full capacity for civil acts, hold a bachelor or
higher degree and have worked in the educated field at least 2 years. Qualitative
standards include good ethics, credibility, independence, impartiality, unbiased,
having mediation skills, legal knowledge, business practices, (Clause 1 of Article
7 of Decree No. 22/2017/ND-CP). Some prohibited cases: "Persons who are
currently being the arrestees, defendants, persons executing criminal sentences or
completely executed their sentences but not yet having their criminal records
remitted; persons who are being subjected to administrative sanctions to
compulsory education or compulsory rehabilitation establishments shall not be
allowed to act as a commercial mediator"(Clause 4, Article 7 of Decree No.
22/2017 / ND-CP). Commercial mediation centers may even set standards for
mediators that are higher than the standards above, but not allowed to be lower
standards (Clause 3, Article 7 of Decree 22/2017 / ND-CP). The application of
both quantitative and qualitative criteria to mediators practicing profession in
Vietnam is quite strict in comparison with the standards applied to commercial
arbitrators, this also reveal unclear about the policy of ensuring the quality of the
mediators in relation to the law of some other countries in the world.
2.1.1.2. Recognizing the status of commercial mediator
After fulfilling the prescribed standards of mediators, the commercial
mediators shall not automatically practice unless authority recognizes him or her.
In order to become a mediator, the persons qualified for mediator must be
accredited by the Department of Justice (for ad-hoc mediators) or the mediation
centers (for statutory mediators).

2.1.2. Regulations on the rights and obligations of commercial mediators
2.1.2.1. Rights and obligations of the mediator in terms of professional activities
As a professional mediator, he or she have rights as being protected of the
interests, participation in professional organizations, associations, to participate
in training activities. On the other hand, as a professional mediator engaged in
the dispute, he or she should also comply with the standards, rules and
procedures of mediation provided by the State, mediation centers (for statutory
mediators).


 

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2.1.2.2. Rights and obligations of commercial mediators in terms of dispute
resolution process
The mediator has the right to accept or refuse to conduct commercial
mediation activities, refuse to provide information relating to the dispute, unless
the parties agree in writing or in accordance with law, request the parties to
respect the three parties' agreement in the dispute settlement process; request the
parties to present truthfully details of the dispute, providing true information and
documents related to the dispute and making proposals for settling disputes.
During the process of mediation, the mediators shall be responsible for
carrying out mediation procedures as agreed by the parties or the mediation
center; if mediators knows the information about the incident and the clients are
not allowed to disclose, unless it is agreed in writing by the parties to the dispute;
mediators also must ensure an independent, impartial and fair roles in the process
of disputes.

2.2. Regulations on the commercial mediation organization
2.2.1.Regulations on the form of commercial mediation
Under the current regulations in Decree No.22/2017/ND-CP of the
Government, in Vietnam, commercial mediation organizations including
commercial mediation centers, commercial arbitration centers registered
commercial mediation operation. Foreign commercial mediation organizations
are only allowed to operate in Vietnam as branches and representative offices.
2.2.2. Regulations on the rights and obligations of commercial mediation
organizations
Mediation organizations have the right to provide mediation services, to
perform professional activities and the rights toward the mediators of their
organizations.
Mediation organizations have the obligations: Obligations toward the
disputed parties, obligations toward commercial mediators, other professional
obligations and some obligations for the State management activities.
2.2.3. Regulations on the establishment and termination of activities of
commercial mediation organizations
2.2.3.1. Establishing and terminating the operation of the mediation center
(i) Establishment of a mediation center through three steps: license to
establishment, registration, operation and information announcement.
(ii) Termination of operation of the mediation Center for the reasons: The
mediation center itself decides to terminate its operation; commercial mediation
centers are revoked their licenses.
2.2.3.2. Registering and terminating commercial mediation activities of the
arbitration center


 

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(i) Registration of commercial mediation operation by the arbitration center:
The arbitration centers shall be entitled to provide mediation services and
regulations on registering additional operation of mediation quite simple.
(ii) Termination of the commercial mediation operation of the arbitration
center for the reasons: The arbitration center terminates its operation in
accordance with the provisions of the commercial arbitration law; The arbitration
center terminates the operation of the commercial mediation activities according
to the center's charter; The arbitration center shall not conduct any commercial
mediation activities within 5 years as from the date the Ministry of Justice's
decision on supplementation of commercial mediation activities takes effect;
arbitration centers that commit acts of administrative violation have been
sanctioned for related to commercial mediation activities under the provisions of
law on administrative violations, which have been continue to violate.
2.1.4. Activities of foreign trade conciliatory organizations in Vietnam
In order to concretize Vietnam's commitment to open the mediation service
market, the Decree 22/2017/ND-CP stipulates the organizational structure of the
foreign mediation organization operated in Vietnam. Foreign commercial
mediation organizations would like to operate in Vietnam would meet two
conditions: (i) Having been established and operating legally in foreign countries,
respecting the Constitution and laws of Vietnam; (ii) Carrying out procedures for
representation in two forms, including branches and representative offices. Thus,
Vietnam has not yet recognized the presence of a legal entity by a foreign
mediation center in Vietnam at the moment.
2.3. Regulations on the operation of commercial mediation in commercial
dispute
2.3.1. Principle of operation of commercial mediation
- Voluntary

- Self-Determination
- Confidentiality
- Flexible and effective dispute resolution
- Neutrality, equality and impartial
2.3.2. Regulations on the competence of commercial mediation
The authority of commercial mediation is determined on the basis of two
factors: (i) Competence vested by the State (based on the scope of dispute
settlement in accordance with law); (ii) Competence delegated by the parties
(based on mediation agreement).
2.3.2.1. Competence in accordance with the law
The type of dispute must fall within the scope of dispute resolution by
commercial mediation. Article 2 of Decree 22/2017/NĐ-CP regulates the cases
that parties may use commercial mediation to settle their disputes, including: (i)


 

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disputes between parties arising from commercial activities; (ii) disputes between
parties in which at least one party has engaged in commercial activities; (iii)
Other disputes between the parties that are required by law to be resolved by
commercial mediation.
2.3.2.2. Competence delegated by the disputed parties
The basis of commercial mediation is the agreement by the parties on the
use of mediation in a commercial dispute. According to the current regulations,
the mediation agreement is an "agreement between the parties on the settlement
of disputes which may arise or have arisen by mediation" (Clause 2, Article 3 of

Decree No. 22/2017/ND- CP). Mediation agreements are voluntary, selective and
independent.
2.3.3. Regulations on the order and procedures of commercial mediation
After settling a legally mediation agreement, further steps for mediation are
initiated in the following order:
(i) The parties to the dispute shall select or nominate the mediator and
determine the order and procedures for mediation
(ii) Mediator(s) performs mediation case
(iii) End of mediation
2.3.4. Regulations on confidentiality in commercial mediation
Commercial mediation is a method of dispute settlement that is rooted in
the principle of free agreements, free will, and respect for the legitimate interests
of the parties. Therefore, the confidentiality regime in commercial mediation is
one of the core issues that need to pay much attention in commercial mediation.
In terms of subjects having a duty of confidentiality, including disputed
parties and commercial mediators.
In terms of confidentiality scopes, all information both during and after the
dispute resolution process in commercial mediation should be kept confidential.
Additionally, there are some exceptions of confidentiality regime.
2.3.5. Regulations on implementation of conciliation results
The outcome of the mediation may be a successful or unsuccessful dispute
resolution. In case of unsuccessful outcome, disputes between the parties have
not yet been settled, the parties may still proceed to re-mediate or continue using
other modes of dispute settlement. In case of successful mediation (in whole or
in part), the parties should seriously implement such agreements. According to
the provisions of the Civil Procedure Code (Chapter XXXIII), in order to have a
compulsory mediation settlement, the parties must request the court to issue a
decision recognizing the mediation results. In terms of procedure, pursuant to
Article 418 and Article 419 of the Civil Procedure Code (2015), applicants for
recognition of results of mediation must submit an application together with the

 

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document on the results of mediation to the court within 06 months from the date
the parties reach settlement.
2.4. Regulations on the role of the State in commercial mediation activities
2.4.1. State management of commercial mediation
Firstly, the Government assigns the unified management of commercial
mediation to the Ministry of Justice.
Secondly, the Government decentralizes the authority to the People's
Committees of provinces and cities directly under the Central Government to
manage commercial mediation in the locality.
2.4.2. State support for commercial mediation
The current regulation in Decree No. 22/2017 / ND-CP does not reflect the
role of state support in commercial mediation activities at local level, but only at
the central level. Accordingly, the Ministry of Justice is responsible for
implementation of measures to support and overall planning development of
commercial mediation activities throughout the country. The two basic support
contents assigned by the Government to the Ministry of Justice included the
support of information, networks and the development of mediation skills. In
addition, according to the provisions of the Civil Procedure Code (2015), the
court will recognize the mediation results outside the court when it meets the
conditions and follows the procedures. However, the current regulations on the
role of the State in mediation show that it is still administrative-oriented, with
little emphasis on supporting and promoting mediation. There are no regulations

on social-professional organizations in the field of commercial mediation.
CONCLUSION OF CHAPTER 2


 

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CHAPTER 3: ORIENTATION AND SOLUTIONS FOR IMPROVING
THE LAW ON COMMERCIAL MEDIATION IN VIETNAM
3.1. Orientation for improving the law of commercial mediation
3.1.1. Ensuring the implementation of the Party and State's guidelines and
policies on the judicial reform strategy and the improvement of the market
economy regime
The guidelines and policies of the Party and State are reflected in
documents such as the Politburo Resolution No. 49-NQ / TW dated June 2, 2005
on the judicial reform strategy to 2020; Resolution No. 48 / NQ-TW of the
Politburo dated May 24, 2005 on the strategy of building and perfecting the
Vietnamese legal system up to 2010 and orientations to 2020. The improvement
of the law on commercial mediation should ensure business freedom, the spirit of
encouraging the development of mediation and be supported by the Court and
relevant agencies. This is also a content that the Constitution of the Socialist
Republic of Vietnam (2013) has affirmed in the construction and improvement of
market economic institutions, regulating the economy on the basis of respecting
the laws of market (Article 52).
3.1.2. Ensuring the compliance with the requirements from the reality and
the trend of international economic integration
According to draft Decree on commercial mediation of Judicial Ministry

submitted to Government No.02/TTr-BTP dated January 26, 2016, the reality is
that businessmen doing business in Vietnam wish to resolve their disputes with
flexible and economical methods, in which commercial mediation is a good way
to meet this need. In addition, the development of law on commercial mediation
needs to meet the trend of integration, the development of law on commercial
mediation should contribute to ensuring the harmony in international economic
relations, studying the law of the UNCITRAL Model Law on international
commercial mediation and learning experiences of some developed countries on
the model of commercial mediation.
3.1.3. Ensuring the respect for the fundamental principles of commercial
mediation
The principles to be ensured are: Voluntariness, confidentiality, equality
and neutrality, efficiency and flexibility.
3.2. Solutions to improve law on commercial mediation in Vietnam
3.2.1. General solutions
3.2.1.1. Legislating Law on Mediation
In Vietnam, Decree 22/2017/ND-CP of the Government on commercial
mediation applies mainly to commercial disputes. Accordingly, in order for the
mediators or the mediation organizations operate the case, the dispute must arise
from commercial activities, if not, the case have to fall into the regulations that


 

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allow using mediation by the State. Therefore, non-commercial and nonregulated by specific law will not fall within the scope of application and
jurisdiction of the dispute resolution by commercial mediators under this Decree.

Vietnam should study the promulgation of a law on mediation. This law will be a
general legal document regulating mediation activities outside the court. This is a
common trend not only in Europe as Germany, but also in Asia, typically in
Singapore. Vietnam should have an itinerary for the legislation of the Law on
mediation with a scope including the mediation of disputes arising from social
activities, with the exception of specific administrative, criminal relations.
Accordingly, this Law will cover the scope of commercial mediation, family
marriage mediation, land disputes, civil and labor disputes, etc., if the parties
wish to use mediation services. In other words, the Law on Mediation will be the
legal document providing the legal basis for the mediators, determining the
standard mediation process and matters relating to the professional scope of these
service activities. In terms of content, the mediation law should cover three major
regulatory groups: Mediators and mediation organizations, dispute resolution by
mediation (which defines the principles of mediation, competence and process,
mediation results), the role of the State in the mediation activities (should pay
attention to specific support from the State for mediation activities).
3.2.1.2. Promulgating the law on sanctioning of administrative violations in line
with the regulations on commercial mediation
The provisions on sanctioning administrative violations in the field of
commercial mediation may also be prescribed in a general legal document on the
dealing with violations in the fields managed by the Ministry of Justice
(Currently, The Ministry of Justice is implementing the common content of
administrative sanctions in the field of commercial mediation in the Decree on
sanctioning administrative violations in the judicial area). The contents of the
regulations on administrative sanctions in commercial mediation activities should
clearly define the sanctioning competence, subjects of application of the
regulations, basis of sanctioning administrative, type of applied sanctions. In
particular, administrative measures need to be taken to ensure that the principles
of commercial mediation are respected by mediation organizations, mediators
and disputed parties. Penalties for mediators violating professional standards and

ethics, prohibited acts and obligations when conducting mediation activities
should be prescribed from the sanctioning level to the ban from professional
practice depending on the seriousness of the breach. The issue of sanctions
against mediation organizations, branches or representative offices of foreign
mediation organizations should closely follow their obligations in Decree
22/2017/ND-CP, avoiding lacking of penalties. The heaviest sanctions, such as
revocation of permits, forcible termination of operation of these establishments,


 

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especially violations of professional ethics, quality standards of mediation
services should be promulgated. State should focus on clearly defining and
imposing strict sanctions rather than on tightening standards of mediators and
mediation organizations, which would have a detrimental impact on these actors.
3.2.1.3. Develop a mechanism encouraging the courts connected to commercial
mediation
The development of conciliation at the court or at a mediation center
connected to court is a good solution for the parties to reach consensus
settlements. However, instead of investing in such centers, besides the Court,
Vietnam should focus on developing mediation center, which is same model with
Singapore. It should be assigned to a professional body other than the State’s
body responsible for the operation. To do that, the State needs to study and
transform the provisions into the Civil Procedure Code, in which judges need to
attempt to introduce and persuade the parties to use independent mediation
outside the courts to settle disputes.

3.2.1.4. Developing legal provisions on the combination between commercial
mediation and commercial arbitration
Currently in Vietnam, the Commercial Arbitration Law (2010) mentions
mediation in arbitral proceedings, arbitration organizations can also provide
independent mediation services and Decree 22/2017/ND -CP also noted that.
However, the model of commercial mediation combined with commercial
arbitration is still not fully recognized by Vietnamese law. The combined process
of commercial mediation and commercial arbitration can be combined in several
ways, including: Med-Arb, Arb-Med or Arb-Med-Arb, Co-Med-Arb,
MEDALOA. In order to be able to build such a mechanism, there is a need for
coordination between law making in the field of arbitration and mediation in a
uniform manner.
3.2.1.5. Establishing legal provisions on social organizations on commercial
mediation
State should have an incentive mechanism for the establishment of socialprofessional organizations as well as promulgate policies to promote the
operation of associations on commercial mediation in particular, alternative
dispute resolution in general. International cooperation and professional training
activities should also be assigned to these organizations to improve the
effectiveness, reduce the workload and the burden of expenditure of State.
3.2.2. Specific solutions
3.2.2.1. Regulations on commercial mediators
Firstly, amending the regulations on conditions for professional practice of
commercial mediators: Clarifying the standards on professional practice;


 

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supplementing some prohibited people to become commercial mediators;
removing the administrative procedure for ad-hoc mediators registration.
Secondly, it is necessary to supplement the regulations on training policies
to improve the quality of commercial mediators. Simultaneously with the
reduction of the standards of professional practice, the removal of administrative
procedures for the management of commercial mediators, Vietnam also needs to
issue regulations on training and granting the certification for mediators.
Certification is only to determine the amount of knowledge and skills that have
been accumulated by the mediators. The regulations on certificated mediators
should not exclude the un-certificated mediators’ right in providing mediation
services in the society. In this regard, Vietnam can learn from German,
Singaporean and Australian regulations.
Thirdly, the Ministry of Justice should be assigned to publish the list and
information of commercial mediators. Procedures for disclosing information
about mediators are necessary so that disputing parties could access this list, to
bring commercial mediation services closer to society. However, it should be
assigned to Ministry Justice to avoid duplication. The Ministry of Justice also
needs to develop a separate website to publish a list of commercial mediators as
well as to publish information relating to the management of commercial
mediation.
Fourthly, supplementing some rights and obligations of commercial
mediators. Concerning the rights of the mediators, the following rights should be
added: the payment of reasonable expenses and other expenses (if any) as
agreement; the requirement to the parties in providing the necessary information
and documents for the settlement of the dispute; the right to make suggestions
and opinions during the dispute settlement process so that the parties can consult
it to make the settlements; the right to engage in other activities not violate the
principles of commercial mediation for the purpose of settling disputes for the
parties.

Concerning obligations to commercial mediators, Decree 22/2017/ND-CP
should also provide more clarification on certain obligations relating to
confidentiality and dispute settlement. In order to ensure the principle of
confidentiality in mediation, the regulations should stipulate that commercial
mediators must protect the principle of confidentiality, not disclose information
about disputants and disputes (including information acquired during or from the
mediation process) with a third party, otherwise agreed upon by the parties or in
accordance with law. In addition, the law should clarify the mediator's obligation
to try and use the necessary measures without infringing upon the parties'
legitimate rights and interests to assist the parties in reaching the most optimal
dispute resolution results.


 

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3.2.2.2. Regulations on the organization of mediation
Firstly, supplementing the provisions on subjects who have rights to
establish mediation centers. Some subjects should be prohibited as civil servants,
judges, procurators, investigators, executors and employees of the People's
Courts, the People's Procuracy, the investigating and executing bodies.
Additionally, learning from Singapore's experience (for example, the SMC
Singapore Mediation Center is an organization affiliated with the Singapore
Academy of Law SAL), Vietnam should also recognize that the founders of the
mediation center could be organizations.
Secondly, simplification of administrative regulations in the establishment,
operation and termination of mediation organizations. At present, there are a lot

of administrative obligations of commercial mediation organization to the State.
As an organization that assists the parties in the resolution of disputes without
making any decision, the administrative procedures of the State governing the
mediation should be suitable.
Thirdly, supplementing some provisions on the rights and obligations of
commercial mediation organizations. In terms of rights: Right to accept or refuse
to conduct disputes; the right to terminate mediation activities in cases of
necessity or following rules of the center; the labor management's right to the
mediators of the center. Besides, it is necessary to add some basic obligations:
Conducting of disputes as agreed (contract); taking responsibility for
recommending and appointing mediators of their organizations to the parties
when requested, taking responsibility for the quality and standards of the
mediators; supporting the location of the dispute settlement and other activities
related to the dispute settlement process; compensating to customers if their
legitimate rights and interests are infringed upon in mediation process.
3.2.2.3. Regulations on mediation process
Firstly, broaden the competence to conduct disputes for commercial
mediation. Vietnam should learn from Malaysian Mediation Law (2012),
whereby the scope of dispute settlement is defined as any disputes, except for
certain types of disputes specified in the Law. To be consistent with the open
scope, the name of the law should be Law on mediation, not kust commercial
mediation.
Secondly, supplementing some principles of mediation, including:
- Self-determination Principle: The mediators respect the opinion and do
not make any decision on behalf of the parties without consensus.
- The principle of impartial and equality dispute resolution: The mediators
must be impartial, not take sides in the dispute and deal fairly with the parties;


 

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