W8: LAW ON DISPUTE

RESOLUTION
Mai Nguyen Dung

Ho Chi Minh City, 2025

1
 Agenda
1. Introduction
2. Negotiation
3. Mediation and commercial mediation
4. Commercial arbitration
5. Court

2
A. GENERAL INTRODUCTION
OF COMMERCIAL BUSINESS
DISPUTES
1. Concept

Business and commercial disputes are disputes arising from disagree-

ments and disputes mainly for economic interests between economic
entities related to economic contracts or economic activities prescribed by
law, falling under the jurisdiction of economic jurisdiction.
2. Characteristics
ABOUT THE SUBJECTS: These are disputes arising between business
entities or related to business entities.
2. Characteristics
ABOUT CONTENT: Business disputes must arise from the business or
commercial activities.
2. Characteristics
ABOUT SETTLEMENT FORM: The resolution of business disputes can
be done in a variety of ways.
3. Categorize
- Disputes arising from business or trade activities among individuals and/
or organizations with business registration, which are all for the purpose
of profits.
- Disputes over intellectual property rights or technology transfers among
individuals or organizations, which are all for the purposes of profits.
- Disputes between persons who are not members of a company but
involve in transaction in transfer of capital holding and the company and/
or its members.
3. Categorize
- Disputes between a company and its members; disputes between a
limited liability company and its manager or between a joint-stock
company and members of its Board of Directors, its Director or its
General Director, or among members of a company regarding the
establishment, operation, dissolution, merge, consolidation, total
division, partial division, property transfer and/or organizational
transformation of the company.
- Other civil disputes relating to business or trade activities, except for
cases within the jurisdiction of other agencies and organizations as
prescribed by law.
4. The concept of dispute resolution
Settlement of business and commercial disputes means that the disputing
parties, through appropriate forms and procedures, settle disputes, and
disagreements over economic interests in order to protect legitimate rights
and interests.
5. Dispute settlement methods

Article 317.- Forms of resolution of disputes

1. Negotiations between the parties.
2. Conciliation (mediation) between the parties by a
body, organization or individual selected by the
parties to act as the conciliation mediator.
3. Resolution by the Arbitration or the Court.
4.
5. Dispute settlement methods
Negotiation
Non-
jurisdiction
Methods Mediation

Arbitration
Jurisdiction
Court
B. NEGOTIATION
1. Concept
Negotiation is a method of dispute settlement through which the disputing
parties discuss together, self-settlement, and resolve arising
disagreements to eliminate disputes without any assistance or judgment of
any third party.
2. Characteristics
- The disputing parties will reach an agreement to find a solution in a
voluntary and good faith spirit without the participation of a third party.
- When conducting negotiations, the parties can present their views, find
out the causes leading to the dispute and seek solutions to end the
dispute.
- In such cases of unsuccessful negotiation, the parties may continue to
choose other appropriate dispute resolution methods to resolve disputes
arising between them.
- The parties voluntarily implement the chosen dispute resolution option.
2. Characteristics
- There is no law governing the negotiating process.
- Advantages: secret, not publicizing the fastest results, less expensive,
proactive, eliminating redundant details, not harming the inherent
cooperation relationship between the parties.
- Disadvantage: depending on the goodwill and voluntariness of the
parties, the negotiation results do not prevent the parties from bringing
the dispute to the Tribunal.
- Result: negotiation records. What is the nature of this record?
- What kind of disputes is negotiation suitable for?
C. COMMERCIAL
MEDIATION
1. Concepts
Mediation is a form of dispute resolution through the participation of a
third party, acting as an intermediary to assist or persuade the disputing
parties to find solutions to end the disputes.
1. Concepts
Commercial mediation is a method of commercial dispute settlement
agreed upon by the parties and supported by a commercial mediator to act
as a mediator to resolve disputes according to Decree 22/2017/ND-CP.
4. Principles of dispute resolution
Article 4. Principles of dispute resolution through commercial mediation
1. Disputing parties shall participate in mediation on an entirely voluntary basis
and are equal in terms of rights and obligations.
2. Information relating to a mediation case shall be kept confidential, unless
otherwise agreed upon in writing by involved parties or otherwise prescribed by
law.
3. Mediation agreement contents must neither violate prohibitory provisions of
law nor contravene social morality, nor aim at shirking obligations nor infringe
upon rights of a third party.
6. Conditions for dispute resolution

Article 6. Conditions for dispute resolution through commercial mediation

A dispute shall be resolved through commercial mediation if involved parties so
agree. The parties may reach agreement on dispute resolution through mediation
before or after a dispute arises or at any time in the process of dispute resolution.

- Mediation agreement means an agreement between involved parties

on the resolution through mediation of disputes which are likely to
arise or have arisen.
7. Commercial mediation procedure

CHOOSE, APPOINT A RIGHTS AND

MEDIATION
COMMERCIAL OBLIGATIONS OF THE
AGREEMENT
MEDIATOR PARTIES

RECONIZE OF SUCCESSFUL
PROCEDURES
MEDIATION RESULT MEDIATION RESULT
8. Pros and cons of mediation
Pros Cons

- Procedural flexibility.
- Conversance. - Depends on the goodwill and
- Participation of the parties in the cooperation of the parties.
mediation process. - The parties may take advantage of
- Put people at the center. mediation to delay the obligation to
- Maintain relationship. perform.
- Confidentiality. - Cost is more expensive than
negotiation.
- The mediator will know how to make
the wills of the parties easy to meet.
D. COMMERCIAL
ARBITRATION
 Negotiation
Non-
jurisdiction
Methods Mediation

Arbitration
Jurisdiction
Court
1. Concept
Business dispute settlement by arbitration is a form of dispute settlement
through the activities of an arbitrator, as an independent third party, to end
the dispute by making an award binding on the parties that they must be
complied.
2. Elements

Private
jurisdiction

2 Core
Elements

The support of
the public
jurisdiction
3. Characteristics
- Arbitration is a form of dispute resolution voluntarily chosen by the
parties.
- Scope of arbitration’s dispute settlement jurisdiction.
- The dispute resolution mechanism by arbitration is a combination of two
elements of agreement and jurisdiction.
- The form of dispute resolution by arbitration ensures the right of self-
determination of the parties is very high.
- There is court support in arbitration proceedings.
- Arbitration does not carry state power.
- Arbitration excludes the jurisdiction of the courts.
4. Competence to settle disputes by arbitration

Article 2. Arbitration’s jurisdiction to settle disputes

1. Disputes among parties which arise from commercial activities.
2. Disputes among parties at least one of whom conducts commercial activities.
3. Other disputes among parties which are stipulated by law to be settled by
arbitration.
5. Forms of arbitration

Article 3. Interpretation of terms

6. Institutional arbitration means a form of dispute settlement at an arbitration
center under this Law and rules of proceedings of such arbitration center.
7. Ad hoc arbitration means a form of dispute settlement under this Law and the
order and procedures agreed by the parties.
6. Principles of dispute settlement by arbitration

Article 4. Principles of dispute settlement by arbitration

1. Arbitrators must respect the parties agreement if such agreement neither
breaches prohibitions nor contravenes social ethics.
2. Arbitrators must be independent, objective and impartial and shall observe law.
3. Disputing parties are equal in their rights and obligations. The arbitration
council shall create conditions for disputing parties to exercise their rights and
fulfill their obligations.
4. Dispute settlement by arbitration shall be conducted in private, unless
otherwise agreed by the parties.
5. Arbitral awards are final.
7. Conditions for dispute settlement by arbitration
Article 5. Conditions for dispute settlement by arbitration
1. A dispute shall be settled by arbitration if the parties have an arbitration agreement.
An arbitration agreement may be made either before or after a dispute arises.
2. When one of the parties being an individual to an arbitration agreement dies or
loses his/her act capacity, such arbitration agreement remains valid for his/her heir
or representative at law. unless otherwise agreed by the parties.
3. When one of the parties being an institution to an arbitration agreement has to
terminate its operation, goes bankrupt, or is dissolved, consolidated, merged,
divided, split up or reorganized, such arbitration agreement remains valid for an
institution that takes over the rights and obligations of the institution to such
arbitration agreement, unless otherwise agreed by the parties.
8. Arbitration agreement

- Arbitration agreement means an agreement between the parties to

settle by arbitration a dispute which may arise or has arisen.
- An arbitration agreement may be made in the form of an arbitral clause
in a contract or in the form of a separate agreement.
- An arbitration agreement must be in writing. The following forms of
agreement may also be regarded as written form …
- Note: The court refuses to accept if there is an arbitration
agreement.
8. Arbitration agreement
- Invalid arbitration agreements?
- What is the relationship between arbitration agreement and contract?
- Find the model arbitration clause of the Vietnam International Arbitration
Center (VIAC).

Article 19. Independence of arbitration agreement

An arbitration agreement is entirely independent from the contract. Any
modification, extension, cancellation, invalidation or nonperformance of the
contract will not invalidate the arbitration agreement.
“Any dispute arising out of or in relation with this
contract shall be resolved by arbitration at the
Vietnam International Arbitration Centre (VIAC) in
accordance with its Rules of Arbitration”
 “Any dispute arising out of or in relation with this
contract shall be resolved by arbitration at the
Vietnam International Arbitration Centre (VIAC) in
accordance with its Rules of Arbitration. The parties
agree that any arbitration commenced pursuant to
this clause shall be conducted in accordance with
the Expedited procedure set out in Article 37 of the
VIAC Rules of Arbitration.”
Parties may wish to consider adding:
(a) the place of arbitration shall be [city and/or country].
(b) the governing law of the contract [is/shall be] the substantive law of
[ ].*
(c) the language to be used in the arbitral proceedings shall be [ ].**
Note:
* For disputes which involve a foreign element.
** For disputes which involve a foreign element or disputes in which at
least one party is an enterprise with foreign investment capital.
9. Arbitral award
Article 60. Principles of issuance of awards
1. The arbitration council shall issue an arbitral award on the basis of majority
vote.
2. In case a majority vote cannot be obtained, an arbitral award shall be issued
based on the opinion of the arbitration council’s chairman.

- Final value.
- Content, form and effect of the arbitral award.
- Cases of cancellation of arbitral award.
- About the implementation of arbitral award.
10. Pros and cons of arbitration

Pros Cons

- The procedure is convenient, fast, - High fees.

simple, flexible. - In the absence of an agreement, the
- Professionalism: chosen by the arbitrator has no jurisdiction.
parties to arbitrate, expertise in many - There are many cases that must go
different fields. through the Court, so it is necessary to
- Confidentiality. "go one step further".
- Not in the name of state power, - "One level of trial".
suitable for disputes with foreign - The award can still be reviewed by the
elements. Court.
E. COURT
1. Concept
Settlement of business and commercial disputes in court is a form of
dispute resolution through the operation of a state jurisdiction agency, in
the name of state power to issue a judgment forcing the parties to perform
the obligations, even by coercion.
2. Authority of
the People's
Court
Organization chart of the
People's Court in
Vietnam.
2. Authority of the People's Court
Criminal tribunals

Administrative
Economic tribunals
handling tribunals
Collegial
People’s Civil tribunals
People’s Criminal tribunals
Courts
Labor tribunals Courts of
People’s Civil tribunals
districts
Courts of Family and
provinces Family and
juvenile tribunals
juvenile tribunals

Administration
2. Authority of the People's Court

civil matters
Civil
lawsuits
civil cases

Type of Particular
Court Level
disputes Court
2. Authority of the People's Court

2.1. Authority of the People's Court

- Article 30. Business and/or trade disputes falling under the courts'
jurisdiction
- Article 31. Business or trade petitions falling under the courts' jurisdiction
2. Authority of the People's Court
2.2. Jurisdiction of the People's Court by Court level

Article 35. Jurisdiction of People’s Courts of districts

1. People's Courts of districts shall have the jurisdiction to settle according
to first-instance procedures the following disputes:
b) Disputes over business/trade activities prescribed in clause 1 Article 30
of this Code.
2. Authority of the People's Court
2.2. Jurisdiction of the People's Court by Court level

Article 37. Jurisdiction of People’s Courts of provinces

1. People's Courts of provinces shall have the jurisdiction to settle
according to first-instance procedures the following disputes:
a) Civil, marriage- and family-related, business, trade or labor disputes
prescribed in Articles 26, 28, 30 and 32 of this Code, except for disputes
falling under the jurisdiction of the district-level people's Courts as
provided for in Clause 1 and Clause 4 Article 35 of this Code.
2. Authority of the People's Court
2.2. Jurisdiction of the People's Court by Court level

- Appellate trial jurisdiction: immediate superior court.

- Statue of limitation?
2. Authority of the People's Court
2.3. Jurisdiction of the People's Court by territorial level
- The court where the defendants is headquartered or domiciled.
- The parties have the right to agree in writing to the court where the
plaintiff is located or domiciled.
- If the dispute is over real estate, the court where the real estate is
located will settle it.
- Note: Article 40. Jurisdiction of Courts selected by plaintiffs or
petitioners.
3. Civil procedures’ subjects
3.1. Civil proceeding authorities, proceeding officers
Article 46. Civil proceeding authorities, proceeding officers
1. The civil proceeding authorities include:
a) The Court;
b) The Procuracy.
2. The civil proceeding officers include:
a) The Chief Justices, Judges, People’s Jurors, ombudspersons and Court
clerks;
b) The Chairpersons of the Procuracies, the Procurators, the Inspectors.
3. Civil procedures’ subjects
3.2. Components of civil case lawsuits

Article 63. Panel for first-instance trial over civil lawsuits

The panel for first-instance trial over civil lawsuits shall be composed of
one Judge and two People’s Jurors, except for cases specified in Article
65 of this Code. In special cases, the first-instance trial panel may consist
of two Judges and three People’s Jurors.
Article 64. Panel for appellate trial over civil lawsuits
The panel for appellate trial over civil lawsuits shall be composed of three
Judges, except for cases specified in Article 65 of this Code.
3. Civil procedures’ subjects
3.3. Participants in civil lawsuits
- The involved parties in civil lawsuits are agencies, organizations and
individuals, including the plaintiffs, the defendants and the persons with
related interests and obligations.
- Other participants: (i) Defense counsels of involved parties' legitimate
rights and interests, (ii) Witnesses, (iii) Expert-witnesses, (iv)
Interpreters, (v) Representatives .
4. Basic principles
- The principles can be found in Chapter II of the CPC.
- Some notable principles:
Compliance with laws in civil procedures
Right to request Courts to protect legitimate rights and interests
Involved parties' right to decision-making and self-determination
Supply of evidences and proof in civil procedures
Equality in rights and obligations in civil procedures
Ensuring the involved parties' right to protect legitimate rights and interests
Mediation in civil procedures
4. Basic principles
- Some notable principles:
Judges, People’s Jurors are independent in adjudication of civil lawsuits and
settlement of civil matters and only comply with law
Prompt, equal and public trials by Courts
Ensuring impartiality and objectiveness in civil procedures
Following the two-level adjudication regime
Assurance of the effect of Courts' judgments and decisions
Spoken and written language used in civil procedures
Assurance of oral argument in adjudication
Assurance of the right to complaints and denunciations in civil procedures
5. Two-level adjudication regime

Cassation
Procedure
First-instance Appellate
procedures procedure
Reopening Procedure

For judgments that For judgments that

have not yet taken have taken legal
legal effect effect
6. First instance proceedings

INSTITUTION AND MEDIATION AND TRIAL FIRST-INSTANCE

ACCEPTANCE OF PREPARATION (Chapter COURT SESSION
CASES (Chapter XII) XIII) (Chapter XIV)
7. Appellate Procedures
Article 270. Nature of appellate trial
Appellate trial means the re-trial by the appellate Court of a case with the
first-instance court's judgment or decision having not yet taken legal effect
and being appealed against.
Article 293. Scope of appellate trial
The appellate Courts shall only review the parts of the first-instance
judgments/decisions, which are appealed against or related to the review
of the appealed contents.
7. Appellate Procedures

PREPARATION FOR AN APPELLATE TRIAL

APPEAL (Chapter XV) APPELLATE TRIAL PROCEDURES
(Chapter XVI) (Chapter XVII)
8. Simplified procedures

- Simplified procedures are procedures that are applied to resolve civil

lawsuits which fully satisfy conditions specified in this Code in simpler
procedures than common civil lawsuit resolution procedures to resolve
the cases quickly but still ensure the compliance with law (Art. 316 CPC).
- Apply conditions?
- The trial panel has only one judge.
9. Reviewing legally effective judgements
Article 325. Nature of cassation
Cassation means the review of courts' legally effective judgments or decisions,
which are appealed against when there are grounds specified in Article 326 of this
Code are satisfied.
Article 351. Nature of reopening procedures
Reopening means the review of legally effective judgments/decisions which are
appealed against due to the appearance of newly detected details which may
substantially change the contents of the judgments/decisions and about which the
Courts and involved parties did not know when the Courts rendered such
judgments or decisions.
11. Pros and cons of settling disputes by court
PROS “CONS”

- Coerciveness is high because this is - May be prolonged due to appeal,

an agency of the state apparatus. protest.
Stronger power. - Lack of flexibility due to multiple steps.
- Strict order and procedures. - Principles of open trial.
- Principle of open trial, for people's - Difficult to be recognized and enforced
supervision. in other countries.
- Low cost. - Problems with the application of the
law?
CONCLUSION
 Negotiation
Non-
jurisdiction
Methods Mediation

Arbitration
Jurisdiction
Court