Tiểu Luận Thuật Ngữ Nhóm 2.Docx

MINISTRY OF INDUSTRY AND TRADE INDUSTRIAL UNIVERSITY OF HO CHI MINH CITY GROUP 2 PROS & CONS OF EACH RESOLUTION OF COMMERCIAL DISPUTE (ESSAY) HO CHI MINH CITY, 2023 MINISTRY OF INDUSTRY AND TRADE TRƯỜ[.]

MINISTRY OF INDUSTRY AND TRADE INDUSTRIAL UNIVERSITY OF HO CHI MINH CITY

MINISTRY OF INDUSTRY AND TRADE TRƯỜNG ĐẠI HỌC CÔNG NGHIỆP TP HỒ CHÍ MINH

PROS & CONS OF EACH RESOLUTION OF

COMMERCIAL DISPUTE

SUBJECT ESSAYS SPECIALIZED TERMINOLOGY ECONOMIC LAW

Instructors: Nguyen Thanh Minh ChanhSection Classes: DHLKT18A

Group: 2

HO CHI MINH CITY, 2023

LIST OF GROUP 2 MEMBERS SEQUENCE

NUMBER FULL NAME STUDENT ID CLASS

1 Tô Ngọc Phương Trinh 22650021 DHLKT18A

2 Nguyễn Tống Hoàng Giang 22691811 DHLKT18A

1

TABLE OF CONTENTS

CHAPTER I: GENERAL OVERVIEW OF METHODS OF COMMERCIAL

DISPUTE RESOLUTION THROUGH COMMERCIAL ARBITRATION AND

DISPUTE RESOLUTION THROUGH COURTS 4

1.1 Commercial dispute 4

1.1.1 The concept of commercial activities 4

1.1.2 Commercial dispute concept 4

1.2 Commercial dispute resolution 4

1.2.1 Negotiation between parties 4

1.2.2 Conciliation between the parties 4

1.2.3 Dispute settlement by commercial arbitration 4

1.2.4 Settlement of disputes by Court 4

1.3 Commercial Arbitration 4

1.3.1 Concept 4

1.3.2 Arbitration's authority to settle disputes 4

1.3.3 Dispute settlement procedures by commercial arbitration 4

1.3.4 Effect of judgment 4

1.3.5 Ensuring the enforcement of the ruling 4

1.3.6 The remaining factors 4

1.3.6.1 Expense 4

1.3.6.2 Time 4

1.3.6.3 Location 4

1.4 Court 4

1.4.1 Concept 4

1.4.2 Authority of the Court 4

1.4.2.1 What is authority? 4

1.4.2.2 What is the authority of the Court? 4

1.4.2.3 Authority of the court 4

1.4.3 Court Procedures 4

1.4.4 Validation of the Court 4

1.4.5 Execution of the Court's judgment 4

1.4.6 Other factors 4

CHAPTER II: ISSUES SURROUNDING THE CHOICE OF TRADE DISPUTE RESOLUTION METHOD 4

2

2.1 Comparison of commercial dispute resolution methods between courts and

arbitration 4

2.1.1 Alike 4

2.1.2 Difference 5

2.2 The role of arbitrators and courts in practice 7

2.2.1 The role of commercial arbitration 7

2.2.2 Role of the court 8

CHAPTER III: SOME RECOMMENDATIONS TO IMPROVE THE EFFICIENCY OF COMMERCIAL DISPUTE SETTLEMENT BY COMMERCIAL ARBITRATION AND COURTS 10

3.1 Solutions to complete the law on settlement of commercial disputes by commercial arbitration 10

3.2 Solutions to improve the law on the competence of courts in settling business and commercial disputes 11

3.2.1 It is necessary to amend the legislative approach to the authority of courts in the direction of exclusion 11

3.2.2 The litigant's right to freely choose the court 11

3.2.3 Recognizing the People's Court's right to interpret laws in settling business and commercial disputes 12

3.2.4 Complete the law on the model and organizational structure of the court 12

3.2.5 Raise the qualifications and capacity of judges and assessors in settling commercial business disputes 12

3

CHAPTER I: GENERAL OVERVIEW OF METHODS OF COMMERCIAL DISPUTE RESOLUTION THROUGH COMMERCIAL ARBITRATION AND

DISPUTE RESOLUTION THROUGH COURTS 1.1 Commercial dispute

1.1.1 The concept of commercial activities

Following Article 3 of the 2005 Commercial Law1, which stipulates thatcommercial activities are activities for profit-making purposes, including purchaseand sale of goods, provision of services, investment, trade promotion and otheractivities for other profit-making purposes

1.1.2 Commercial dispute concept

Commercial disputes are conflicts or disagreements between two parties thatcooperate on rights and obligations during commercial business activities

1.2 Commercial dispute resolution

1.2.1 Negotiation between parties

The form of dispute settlement by negotiation between the parties can beunderstood as a form of dispute settlement through the parties voluntarily discussing,agreeing, self-arranged, and resolved arising disagreements to eliminate disputes.without the assistance or judgment of any third party

The outcome of the dispute settlement method by negotiation between theparties will depend on the agreement of the parties involved

1.2.2 Conciliation between the parties

Mediation is a form of dispute settlement between parties by an agency,organization or individual chosen by the parties to act as a mediator

In Clause 1, Article 3 of Decree No 22/2017/ND-CP2, the specific concept is

defined as follows: “Commercial mediation is a method of commercial dispute

resolution agreed upon by the parties and approved by a commercial mediator Acting as a mediator to assist in the settlement of disputes as prescribed in this Decree”.

The principles of dispute settlement by commercial mediation are specified in

Article 4 of Decree 22/2017/ND-CP3, specifically as follows:

(1) Disputing parties participating in mediation are completely voluntary andequal in terms of rights and obligations

4

(2) Information related to the mediation case must be kept confidential, unlessthe parties agree in writing or otherwise provided for by law.

(3) The content of the agreement does not violate the prohibition of the law,does not violate social ethics, does not shirk obligations, does not infringe on therights of a third party

1.2.3 Dispute settlement by commercial arbitration

Commercial arbitration is a method of dispute settlement agreed by the parties

and conducted in accordance with this Law (Clause 1, Article 3 of the Law on

Commercial Arbitration 2010)4

The principles of dispute settlement by commercial arbitration are specified in

Article 4 of the Law on Commercial Arbitration 20105 as follows:

(1) The arbitrator must respect the agreement of the parties if such agreementdoes not violate the prohibition and is contrary to social ethics

(2) Arbitrators must be independent, objective, impartial and comply with theprovisions of law

(3) The disputing parties are equal in terms of rights and obligations Thearbitration council has the responsibility to create conditions for them to performtheir rights and obligations

(4) Dispute settlement by commercial arbitration should be done publiclyunless the parties agree otherwise

(5) The arbitral award is final

1.2.4 Settlement of disputes by Court

Regarding the content of court dispute settlement, the provisions of Chapter

II of the 2015 Civil Procedure Code6 clearly state principles including:

(1) Comply with the law in civil proceedings

(2) The right to request the Court to protect legitimate rights and interests.(3) The right to decide and self-determination of the involved parties

(4) Equality in rights and obligations in civil proceedings

(5) Ensure the right to protect the legitimate interests of the involved parties.(6) Judges, people's jurors who hear civil cases, and judges who settle civilcases are independent and only obey the law

5

(7) The Court shall conduct trial in a timely, fair and public manner.

(8) Ensure impartiality and objectivity in civil proceedings

(9) Ensuring the first instance and appellate trial regime

(10) Ensuring the validity of court judgments and decisions

(11) Ensuring litigation in trial

However, according to the Law, there will be cases that are allowed to settlecommercial disputes under the authority of the Court For commercial disputes

falling under the authority of the Court, Article 30 of the Civil Procedure Code 20157

specifically provides as follows:

- Disputes arising in business and commercial activities between individualsand organizations that have business registration with each other for profit purposes

- Disputes over intellectual property rights, technology transfer betweenindividuals and organizations and all for profit purposes

- Disputes between people who are not members of the company but havetransactions on transfer of contributed capital with the company and members of thecompany

- Disputes between the company and its members, disputes between thecompany and the managers in the limited liability company or members of the Board

of Directors, the director or general director of the joint stock company, between themembers of the company with each other related to the establishment, operation,dissolution, merger, consolidation, separation, transfer of assets of the company,transformation of the form of the company

Other business and commercial disputes, except for cases falling within theauthority of other agencies or organizations as prescribed by law

1.3 Commercial Arbitration

1.3.1 Concept

Commercial Arbitration is a method of dispute settlement agreed upon by theparties and conducted by the Law on Commercial Arbitration 2010

1.3.2 Arbitration's authority to settle disputes

Firstly, disputes between parties arise from commercial activities

Secondly, disputes arise between parties in which at least one party hascommercial activities

6

Third, other disputes between the parties as prescribed by law shall beresolved by arbitration.

1.3.3 Dispute settlement procedures by commercial arbitration

(1) Filing a lawsuit and accompanying documents

(2) Defendant defends himself

(3) Establishing the Arbitration Council Step

(4) Opening a dispute resolution session

(5) Reconciliation

1.3.4 Effect of judgment

Pursuant to article 60 of the Law on Commercial Arbitration 2010, the

principle of making an arbitral award has two provisions:

Firstly, if the majority of votes are not reached, the arbitral award shall bemade according to the opinion of the Chairman of the Arbitral Council

Secondly, the arbitral tribunal issues the arbitral award by majority vote

Thus, the arbitrator's award is the decision of the arbitral tribunal It resolvesthe entire content of the dispute as well as terminates the arbitration proceedings and

is decided by majority vote of the arbitral tribunal

1.3.5 Ensuring the enforcement of the ruling

- Right to request enforcement of an arbitral award

Upon the expiration of the time limit for enforcement of an arbitral award, ifthe award debtor does not voluntarily execute it and does not request annulment ofthe arbitral award as prescribed, the award debtor may the right to make a request to acompetent civil judgment enforcement agency

- Voluntary enforcement of the arbitral award

The State encourages the parties to wish to enforce the arbitral award

- Enforcement of the arbitral award

Financial judgments shall be enforced in accordance with the law on civiljudgment enforcement

1.3.6 The remaining factors

1.3.6.1 Expense

According to the provisions of Clause 1, Article 34 of the 2010 Commercial

Arbitration Law:

7

- Arbitration fees are revenues from the provision of arbitration services.Arbitration fees include:

- Arbitrator's remuneration, travel expenses and other expenses for Arbitrators

- Fees for expert consultation and other assistance at the request of the arbitraltribunal

Pursuant to Article 33 of the Law on Commercial Arbitration 2010, the

statute of limitations for initiating a lawsuit for dispute settlement by commercialarbitration is as follows: "Article 33 Statute of limitations for initiating arbitrationfor dispute settlement: "Unless otherwise provided by specialized law, the statute oflimitations for initiating a lawsuit according to arbitration procedures is 2 years fromthe time when lawful rights and interests are infringed"

Thus, unless otherwise provided for by specialized law, the statute oflimitations for initiating a lawsuit according to arbitration procedures is 2 years fromthe time when lawful rights and interests are infringed

1.3.6.3 Location

In international arbitrations, the determination of "Venue of Arbitration" isespecially important according to the laws of the country in which the arbitration islocated which will regularly govern the arbitral award procedures

The parties have favorable rights about the location of dispute settlement; incase of unfavorable circumstances, the arbitral tribunal shall decide The place ofdispute settlement may be within the Vietnamese territory or outside the Vietnameseterritory

Unless the parties have different disagreements, the arbitral tribunal may hold

a meeting at a place deemed suitable for the exchange of opinions among themembers of the arbitral tribunal testimonies, consult experts or conduct inspection ofgoods, property or other documents

8

1.4 Court

1.4.1 Concept

In clause 1, article 102 of the 2013 Constitutional Law, the concept of the

Court is explained as follows: "The People's Court is the judicial organ of the

Socialist Republic of Vietnam, exercising the judicial power".

The organizational structure of the People's Court includes:

- Supreme People's Court

- High People's Court

- People's Courts of provinces and centrally run cities

- People's Courts of rural districts, urban districts, towns, provincial cities andthe equivalent

1.4.2.2 What is the authority of the Court?

Authority of the court is determined in the nature of the case

Is the right of the court to consider and settle criminal cases, administrativecases, civil cases and other cases as prescribed by law

The outcome of the trial is the right to issue judgments and decisions whensettling that case

The court's final conclusion is enforceable in the state managementmechanism

1.4.2.3 Authority of the court

Firstly, authority by type of work

Secondly, authority of courts at all levels

Third, authority of courts by territory

1.4.3 Court Procedures

(1) File a petition

(2) Assign a judge to review the application

9

(3) Accept the case.

(4) Conduct mediation

(5) Prepare for trial

(6) Bring the case to trial at the first instance court

1.4.4 Validation of the Court

Can be divided into two types of court judgments: first-instance judgmentsand appellate judgments

First-instance level: According to Clause 2, Article 282 of the Civil

Procedure Code 20158, the first-instance judgment or parts of the first-instancejudgment that are not appealed or protested against according to appellate proceduresare effective legal force from the date of expiration of the time limit for appeals orprotests

In which, the time limit for appealing against the judgment of the first-instance

court is 15 days from the date of pronouncement (according to Clause 1, Article 273

of the Civil Procedure Code 2015)9

The time limit for protesting against the judgment of the first-instance court ofthe procuracies of the same level is 15 days, of the superior procuracies is 1 month

from the date of judgment pronouncement (according to Clause 1, Article 280 of the

Civil Procedure Code the 2015)10

Thus, after 30 days from the date of judgment If the judgment is not appealed

or protested against, the judgment takes legal effect

Appellate level: The appellate court's judgment takes legal effect from the date

of its pronouncement (Clause 6, Article 313 of the Civil Procedure Code 2015)11

1.4.5 Execution of the Court's judgment

Enforcement of a court's judgment is an act of voluntary execution of a courtjudgment by the disputing parties or an act of a competent state agency to compel thedisputing parties to perform the award according to a set of procedures order andprocedures prescribed by law The ultimate purpose of the Court's enforcementactivities is to ensure that in fact the contents of the Court's judgments must beimplemented, not the applicable legal documents or decisions operating as in theactivities of administrative agencies

10