At the sametime, through the 10-year Socio-Economic Development Strategy 2021 — 2030, theParty further emphasizes “the development of legal services and mechanisms forresolving disputes
Trang 1MINISTRY OF JUSTICE MINISTRY OF EDUCATION
AND TRAINING
HANOI LAW UNIVERSITY
Trang 2MINISTRY OF JUSTICE MINISTRY OF EDUCATION
AND TRAINING
HANOILAW UNIVERSITY
PHAN THI HA LINH
453310
ONLINE ALTERNATIVE DISPUTE RESOLUTION IN
COMMERCIAL CONTEXTS - REGULATORY
RECOMMENDATIONS FOR VIETNAM
Field of Study: Commercial Law
SUPERVISOR LL.M PHAN VU
BACHELOR’S THESIS
Hanoi — 2024
Trang 3I hereby assure that this fhess is my own work, theconclusions and datain thts Bachelor's the3 s are honest andreliable/
Approval of ŠLpervisor Author of the Thesis
Trang 4LIST OF ABBREVIATIONS
ADR Alternative Dispute Resolution
Al Artificial Intelligence
Decree No 13 Decree No 13/2023/ND-CP dated 17 April 2023 of
the Government on the Protection of Personal DataDecree No 22 Decree No 22/2017/ND-CP dated 24 February
2017 of the Government onC ommercial Mediation
HKIAC Hong Kong International Arbitration C entre
ICC International Chamber of Commerce
KCAB Korean Commercial Arbitration Board
LCA Law onCommercial Arbitration 2010 No
54/2010/QH12LPJ Act No 2019-222 of 23 March 2019 on
Programming 2018 —2022 and Reform for Justice
OADR Online Alternative Dispute Resolution
Protocol 2020 Protocol for International Arbitration 2020 issued
by the Intemational Council for CommercialArbitration, New York City Bar Association andInternational Institute for Conflict Prevention andResolution
TheUS The United States
Trang 5TABLE OF CONTENT
CHAPTER 1 OVERVIEW OF ONLINE ALTERNATIVE DISPUTE RESOLUTION IN COMMERCIAL CONTEXTS S 1.1 Overview of Alternative Dispute Resolution in Commercial Contexts 5
1.1.1 Definition and Roles of Commercial Dispute Resolution 5
1.1.2 Altemative Dispute Resolution in Commercial Contezts 7
12 Overview of Online Alternative Dispute Resolution 10
1.2.1 Definition of Online Altemative Dispute Resolution 10
1.2.2 Characteristics of Online Altemative Dispute Resolution 11
1.2.3 Roles of Online Altemative Dispute Resolution 13
1.2.4 Historical Development of Online Altemative Dispute Resolution 14 13 Overview of Online Alternative Dispute Resolution Law 16
1.3.1 Nature of Online Altemative Dispute Resolution Law 16
1.3.2 Structure of Online Altemative Dispute Resolution Law 17
1.3.3 Factors Affecting Online Altemative Dispute Resolution Law 1.4 International Experiences on Online Alternative Dispute Resolution 1.4.1 International Experiences in the Legal Recognition of Online Altemative Dispute Resolution s- Seo 1D) 1.4.2 International Experiences in Legal Electronic Technology Related to Online Altemative Dispute R.esolution -cc eters 20 CHAPTER 2 ONLINE ALTERNATIVE DISPUTE RESOLUTION LAW IN COMMERCIAL CONTEXTS AND ITS ENFORCEMENT IN Bi 10 Us 01), Petree pean cee tee eae eee ee nee ere eee eee eer ee 35 2.1 Online Alternative Disp ute Resolution Law in Vietnam
Trang 62.11 General Regulations on Legal Electronic Technology Related to
Online Altemative Dispute Resolution sec 25
2.1.2 Specific Regulations on Online Commercial Mediation and Online Cũimmirolal.ATDHSHOB áccccc6se004608 8A atte Se 2.2 Enforcement of Online Alternative Dispute Resolution Law in Vietnam
38
2.2.1 Achievements in the Enforcement of Online Altemative Dispute Resolution Law in Vietnam
2.2.2 Limitations and Challenges in the Enforcement of Online Altemative
Dispute Resolution Law in Vietnam - seo 40 2.2.3 Causes of the Limitations and Challenges in the Enforcement of Online Altemative Dispute Resolution Law in Vietnam 41
CHAPTER 3 RECOMMENDATIONS FOR IMPROVING ONLINE
DISPUTE RESOLUTION LAW IN COMMERCIAL CONTEXTS AND ITS
3.1 Guiding Viewpoints for Improving Online Dispute Resolution Law in
3.2 Directions for Improving Online Dispute Resolution Law in Vietnam 46 3.3 Recommendations for Improving Online Dispute Resolution Law in
3.3.1 Recognizing Online Altemative Dispute Resolution in Legal
Mu cm , 3.3.2 Affirming Legal Admissibility of Electronic Evidence 48 3.3.3 Improving Usage of Electronic Signature and Digital Signature 49 3.34 Establishing Data Privacy, Technological and Technical Standards
for Online Altemative Dispute Resolution 13.3.5 Amending and Supplementing Regulations on Online Commercial
Mediation and Online Commercial Arbitratton 23
Trang 73.4 Recommendations to Improve the Enforcement of Online Alternative Dispute Resolution Law im Vietnam 54
3.4.1 Raising Awareness of Online Alternative Dispute Resolution 54 3.4.2 Training Specialized Expertise for Online Altemative Dispute NRE SOMI OD Sus6240181G 000002053 GGA3k,saagsio4fetoiiuBiuoagigbakckigess 3.4.3 Improving the Technological and Technical Infrastructure 56
CONCLUSION
BIBLIOGRAPHY
58
Trang 81 Necessity of the Research
As the Fourth Industrial Revolution unfolds, robust technologicaladvancements have brought about the exponential growth of world commerce and anunprecedented surge in the quantity and complexity of commercial conflicts Thisphenomenon underscores a rising need for innovative, adaptive and efficientmechanisms in the dispute resolution realm Within this context, strengtheningalternative dispute resolution (“ADR”) mechanisms stands as one of the central goals
of Vietnam in the coming time, exemplified in the Communist Party of Vietnam’sEvaluation Report on the Results of Implementing the Socio-economic DevelopmentTasks for the 2016 — 2020 Period and the Orientations and Tasks for Socio-economicDevelopment for the 2021 — 2025 Period at its 13th National Congress At the sametime, through the 10-year Socio-Economic Development Strategy 2021 — 2030, theParty further emphasizes “the development of legal services and mechanisms forresolving disputes outside of court; enhancement of the efficiency and shorten thetime for dispute resolution and enforcement of judgments,” as well as “rapid andsustainable development based primarily on science and technology, innovation, anddigital transformation.”
Online altemative dispute resolution (*OADR”) mechanism thus emerges as
a promising solution for resolving commercial disputes OADR leverages digitaltechnologies to facilitate remote communication and virtual hearings betweendisputents in order for them to resolve disputes without the need for physical presence
V arious jurisdictions across the world are also establishing OADR platforms, havingrecogmzed their potential to enhance access to justice, streamline legal processes, andpromote a more efficient resolution of disputes in the Digital Age These factors urgeVietnam to embrace this trend and invest in the development and implementation ofOADR mechanisms In this effort, the thesis aims to delve into both theoretical andpractical aspects of OADR to unravel its pivotal role in modern dispute resolutionmechanisms, and how our regulatory framework and enforcement regime may adapt
to the increasing demand to implement OADR in Vietnam
Trang 9In Vietnam, as far as 2016, the Multilateral Trade Assistance Project hasplayed an active role in evaluating the OADR system in Vietnam and conductingcomparative studies the European Union The research of Ha Cong Anh Bao andLeHang My Hanh (2017) later delves into the characteristics of OADR and assesses thepros and cons of applying OADR in Vietnam Duong Quynh Hoa (2020) emphasizesthe need for OADR and evaluates relevant statutes from the perspective of consumertights protection In 2023, Phan Chi Hieu and Nguyen Van Cuong devised acomprehensive analysis of OADR law and regulatory recommendations forincorporating technology into mediation, arbitration and litigation procedures.
Nevertheless, it is noteworthy that the existing literature predominantlyconcentrates on the dynamics of OADR in addressing consumer disputes arising out
of the thriving e-commerce backdrop, with limited attention on its application inwithin business interactions and commercial disputes By building upon thisfoundation, the thesis provides a systematic research into the potential of OADR tofacilitate business-to-business dispute resolution, thereby fostering fair and efficient
dispute resolution.
3 Scientific and Practical Significance of the Research
Scientifically, the thesis fills a critical gap in the existing literature by focusing
on the application of OADR mechanisms within commercial contexts By delvinginto the theoretical foundations af OADR and its relevance in traditional ADRmechanisms, the study advances our understanding of how technological
Trang 10advancements intersect with legal frameworks to reshape commercial disputeresolution processes.
Practically, the thesis offers actionable insights for policymakers, legalpractitioners and businessesin Vietnam by evaluating the enforcement of OADR law.Through a structured analysis of achievements and shortcomings, the study aims toprovide regulatory and implementation recommendations that can enhance theaccessibility and effectiveness of OADR in Vietnam Ultimately, the research wouldcontribute to the advocacy and development of more efficient and equitablemechanisms for resolving commercial conflicts in the Digital Age
4 Objectives of the Research
The primary objectives of the thesis are to provide insights into the theoreticalfoundation of OADR, assess the legal framework and practical implementation ofOADR in Vietnam, and propose regulatory recommendations to enhance theeffectiveness and accessibility of OADR in the Vietnamese context
To achieve such objectives, the thesis sets out specific tasks as follows:
- Researching fundamental theoretical issues related to ADR, OADR andOADR law, aswell as highlighting relevant international experiences,
- Analyzing and evaluating OADR legal framework and practicalimplementation to identify the achievements and shortcomings in theapplication of OADR law in Vietnam, while also pinpointing the reasons forthese limitations,
- Proposing feasible solutions to refine OADR law and enhance theeffectiveness of implementing OADR law in Vietnam
5 Subject and Scope of the Research
The research subjects are regulations related to OADR in settling commercialdisputes in Vietnam (particularly electronic data messages, electronic signature anddigital signature; data privacy, technological and technical requirements for OADRplatforms; regulations specific to online commercial mediation and onlinecommercial arbitration) and the implementation of such regulations, laws from otherjurisdictions concerning OADR (limited to 03 countries with reputable systems ofADR) to propose recommendations for improving the Vietnamese legal framework
on this matter
Trang 11The scope of research is limited to legal aspects of OADR in settlingcommercial disputes (i.e electronic technologies that facilitate OADR, onlinecommercial mediation and online commercial arbitration), the focal point of whichis
on the adaptability of our contemporary legal framework against unprecedentedproblems emerged from the multi-faceted influence of the Fourth IndustrialRevolution Due to the autonomous nature and the State’s limited interference inparties’ self-bargaiming, online negotiation is beyond the scope of this thesis
6 Research Methodologies
The research methodology employed in this study is predominantly qualitative,designed to provide a thorough understanding of the subject matter Initially, thethesis will conduct a thorough review of the Communist Party of Vietnam’sviewpoint on the F ourth Industrial Revolution as well as relevant literature on OADR.Afterward, the thesis will conduct a comparative study of OADR best practicesin theworld and their implications for Vietnam Consequently, the thesis will use thematicanalysis techniques to identify key themes, suitability and limitations of the currentregulations in order to address the research objectives effectively and craft feasiblesolutions for Vietnam
7 Outline of the Research
The thesis consists of an Introduction, Body, Conclusion and Bibliography inorder of appearance The thesis’ body comprises of three chapters:
- Chapter 1: Overview of Online Alternative Dispute ResolutioninC ommercialContexts
- Chapter 2: Online Alternative Dispute Resolution Law and Enforcement inCommercial Contexts in Vietnam
- Chapter 3: Recommendations to Improve Online Dispute Resolution Law andEnforcement in Commercial C ontexts in Vietnam
Trang 12CHAPTER 1 OVERVIEW OF ONLINE ALTERNATIVE DISPUTE
RESOLUTION IN COMMERCIAL CONTEXTS1.1 Overview of Alternative Disp ute Resolution in Commercial Contexts11.1 Definition and Roles of Commercial Dispute Resolution
The Fourth Industrial Revolution unfolded during the dawn of the 21* century,representing a major social, political, and economic shift in the way humans
experience and know the world around them.Ì In today’s dynamic business
environment, enterprises are empowered to form commercial relationships with otherentities to adapt, innovate, and thrive Whether motivated by collaboration for mutualgains or competition for market leadership, interactions bebveen businesses withvaried interests and expectations nevertheless harbor hidden risks of commercialdisputes
As a common occurrence in the corporate world, “commercial disputes”(occasionally used interchangeably with “business disputes”) are typically defined as
“conflicts, disagreements or controversies over the rights and obligations between
parties in the process of carrying out commercial activities.”? This includes, but is
not limited to, disputes arising from the buying or selling of goods and services,investment, commercial promotion and other activities conducted for profit-makingpurposes,> such as antitrust, contract, fiduciary duty, fraud, intellectual property,privacy, product liability, real estate, shareholder disputes, etc In this regardcommercial disputes effectively represent the profit-seeking goals of marketparticipants that are presumably hindered by the breaching party
In commercial conflicts, the central concerns of dealers are largely at stake,which prove to be highly damaging costly and time-consuming to individuals andorganizations directly involved By extension, disputes with high value mightthreaten the stability of commercial practices and the economy as a whole Such a
* Thoms Philbeck & Nicholas Davis (2019), The Forath Ixdutrial Revolution, Jounal of Intenutional Affazs, Vol 72,No 1,p 17
` Hanoi Law University (2018), Cotơsebook on Commercial Leow ~ Volime 2, Judicial Publishing Houst , Hanoi, pp 315 - 316.
This generalization is derived from the provisions of different jurisdictions (ie the U.S Code § 1532, Australia’s Income Tax Assessment Act 1936) as well as an extended interpretation of Vietnam’s Lav on Commerce 2005 on ‘commercial activities” which means, m pertinent pat, “activins for the prapose of generating profits, including sale and prachase of goods, provision of services, immestment, commercial Promotion and other activities condiucted for profit-making pirpase”.
Trang 13phenomenon necessitates effective methods to streamline dispute resolutionprocesses that enable parties to settle their differences with a fair solution In itsrelevance, commercial dispute resolution refers to “the process by which the involvedparties take necessary steps to settle commercial disputes to protect their legitimate
rights and interests.”*
Resolving commercial disputes plays a critical role in protecting parties’legitimate rights and interests, improving the business landscape of a nation andmaintaining legal order and social discipline:
First, for the disputing parties, successful conflict resolution is undoubtedlytheir paramount goal A fair and efficient resolution process helps mitigate losses andprotect the legitimate rights and interests of parties, thus will be the motivation forthem to push forward with their commercial activities On the contrary, having tosuffer adverse legal consequences will be an incentive for proprietors to comply withrecogmzed commercial and legal standards Moreover, parties can preservecommercial relationships, as well as move past disruptions to save time and cost byutilizing efficient resolution methods, leading to overall unhindered businessactivities
Second, for the business environment, commercial dispute resolutionsignificantly contributes to its dynamics and openness By minimizing disruptions tocommercial transactions and promoting stability in contractual relationships, disputeresolutions play a pivotal role in promoting a sense of confidence and reliabilityamong business partners, encouraging them to engage in future collaborationswithout fear of unresolved issues looming over their interactions This enhances theoverall well-being of the economy, which in tum encourages business
entrepreneurship and attracts substantial investment.
Third, for the legal system, the resolution of commercial conflicts helpsreinforce the rule of law, and uphold the integrity of contractual agreements Effectivecommercial dispute resolution mechanisms ensure that disputes are resolvedaccording to established legal principles, precedents, and statutes By adhering to
4 Roy J Lewicki & Blair H Sheppard (1985), Choosing How to Intervene: Factors Affecting the Use af Process coud Outcome Control in Third Party Dispute Resohtion, Jounal of Occupational Behaviour, Vol 6,No 1,4 Special Issue on Negotiating in Organizations pp 49 — 52.
Trang 14legal procedures and principles, these mechanisms reaffirm the rule of law,demonstrating that no entity, regardless of its size or influence, is above the law Thisfosters a sense of trust in the legal system and provides assurance to businesses thattheir contractual rights will be protected and enforced.
Naturally, parties to a dispute want their interests maximized and expenseskept to a minimum While disputants may engage in a fair and constructivenegotiation to work out an agreeable solution, it is not inconceivable that they mightresort to more underhanded and unethical measures to skew the odds in their favor.Therefore, most legal systems in the world now provide various official approachesfor settling conflicts and disagreements between business parties, which could be
broadly categorized into two main types: either in court through litigation or outside
of court via ADR mechanisms
1.1.2 Alternative Dispute Resolution in Commercial Contexts
1121 The Need for Alternative Dispute Resolution in Commercial Contexts
‘With the constant increase of commercial disputes in both quantity and value,non-traditional dispute resolution (hence the term “alternative dispute resolution’)has been widely accepted as a more proficient system to save time and costs, alleviatethe workload for courts and help disputants escape legal rigidity associated withlitigation:
First, ADR allows parties to maintain autonomy over the resolution process
In contrast to litigation, where the parties are subject to rigid procedures and theoutcomes are ultimately determined by judges or juries, ADR empowers parties totailor their resolution procedures to the specific needs of the dispute, as well asactively participate in crafting mutually acceptable solutions This collaborative andflexible approach instills in disputants a sense of greater control over the proceduresand outcome of the dispute
Second, ADR offers a more expeditious and cost-effective means of resolvingdisputes compared to litigation Court proceedings can be lengthy and subject todelays due to crowded claims, procedural complexities, and prolonged appealsprocesses In contrast, ADR proceedings can be scheduled more quickly, andgenerally save the parties from court-related administrative and legal fees By thesame token, there exists no appellate recourse for dissatisfied party in ADR
Trang 15mechanisms For example, there exists no appellate procedure for arbitration sincethe arbitral award is final and binding upon the parties, and is effective from the date
of issuance.‘ Thus, ADR is particularly advantageous for businesses seeking tominimize disruptions to their operations and conserve resources
Third, ADR offers parties greater privacy and confidentiality Courtproceedings are a matter of public record, with hearings and filings readily a to thegeneral public In contrast, ADR proceedings can be conducted privately, thusprotecting sensitive business information, personal details, and reputations frompublic scrutiny Furthermore, this confidentiality can encourage parties to engagemore openly and candidly in discussions, leading to more productive negotiations andpotentially preserving relationships
1.1.2.2 Forms of Alternative Dispute ResolutionPrimary ADR methods in resolving commercial conflicts include negotiation,
mediation and arbitration,’ whose characteristics are respectively:
Negotiatiow is a flexible and adaptive procedure that revolves solely around
parties without any intervention from a third person.’ Business dealers often prioritize
making discussions, exchanges and bargaining to efficiently settle their differenceswhile attempting to secure favorable terms, or reestablish contractual relationships.Key characteristics of commercial negotiation lie in its simple and voluntary nature,allowing parties to engage in open dialogue to safeguard their interests without beingsubject to any rigid regulatory framework However, lacking in enforcementmechanism and mandatory implementation, the execution of negotiation results isentirely dependent on the parties’ good faith and might be susceptible to potentialabuses
Commercial mediation is en informal dispute resolution process widelyutilized in business settings, offering a collaborative and non-adversarial approach toresolving conflicts In commercial mediation, an impartial third party known as the
“mediator” would facilitate communication and negotiation between disputingparties with the aim of reaching a mutually agreeable resolution As the mediator only
* Clause 5 Article 61 of the Law on Commercial Arbitration 2010
* Pursuant to Article 317 of Viemam’s Commercial Law 2005, there are 04 forms of dispute resolition mechanisms namely negotiation nw diation, arbitration and cout litigation.
ˆ Hanoi Lay University (2018), td,p 321.
Trang 16assists in identifying common interests and generating creative solutions, participantsretain utmost control over the decision-making, making the process entirely voluntary.This method is often favored for its time and cost- effectiveness, allowing businesses
to maintain relationships and preserve confidentiality while reaching an outcometailored to their specific circumstances That said, the enforceability of successful
mediation outcomes is up for debate Š
Commercial arbitration is generally defined as “the reference of a dispute to
an impartial (third) person chosen by the parties to the dispute who agree in advance
to abide by the arbitrator's award issued after a hearing at which both parties have
an opportunity to be heard.”® The initiation of commercial arbitration proceedings isdependent on the parties’ agreement to arbitrate, wherein they submit their conflicts
to an impartial third party so-called the “arbitrator(s)”, who would render a final and.binding award that could be enforced by the court Commercial arbitration is often aprevalent choice for resolving complex business disputes due to its autonomousnature, confidentiality and efficiency in comparison with court litigation, which helpsdisputents tailor arbitration procedures to their specific needs including the selection
of arbitrators, the language of proceedings, and the rules governing the arbitration
Overall, the choice between ADRs rests on factors such as the nature of thedispute, desired outcomes and the preferences of the involved parties so that theycould select the approach that best aligns with their specific needs and circumstances
In practice, the parties might consider the combination of different ADRs, forinstance, the parties may stipulate in their contracts that any dispute arising out of or
in connection with such contracts will be settled in an amicable manner first andforemost, and only in the event of failure will they resort to a judicial method ofsettlement, which may be arbitration or recourse to the State justice system
* In Viemam, Decree No 22/2017/ND-CP dated 24 February 2017 of the Government on Commercial
‘Mediation and the Civil Procedhe Code 2015 doth steulate that & successful commuercialimediation outcome could be recognized by the cout on request of either or both parties Meanwthile ,the Law on Exforcement of Civil Judgments 2008 does not have any direct regulations on the procedures for auplamenting the court's decision om the recognition amd enforcement of conmnercial mediation documents For this reason, the enforceability of successful commer ia] mediation outcomes remains con hisive
? Bryan A Gamer & Henry Campbell Black (2004), Black's Law Dictioncay (£* ed), Thomson/West, St.Paul,
Mimesota,p 321
Trang 171.2 Overview of Online Alternative Dispute Resolution
12.1 Definition of Ouline Alternative Dispute Resolution
With the recent surge in the quantity and complexity of domestic andinternational commercial disputes amidst the Fourth Industrial Revolution, there is acontinued emphasis on streamlining ADR processes to improve efficiency andeffectiveness to alleviate the burden for national courts More importantly, this bears
a significant relevance to the emergence of “online alternative dispute resolution.”
By allowing for remotely submitted documents, virtual hearings and renderingelectronic dispute resolution outcomes, OADR provides businesses with a speedy,convenient and economical means of settling their conflicts, especially in cases wherethe parties are geographically distant or disputes arise from the sharing economypractices.10
On a literal level, the concept “online alternative dispute resolution” representsthe combination of modem technology (online) with the current ADR techniques,commonly known as the ADR process carried out by combining the informationprocessing powers of computers with the networked communication facilities of the
Internet.!! Other common definition in contemporary legal scholarship also attribute
OADR to the utilization of information technology to carry out ADR” Moreover,
OADR initially served virtually-originated disputes only such as e-commercepurchases or digital service agreements However, with the globalization ofcommerce and the advent of cross-border transactions, OADR has extended its reach
to traditional commercial conflicts, gradually eliminating the need for face-to-face
sessions l3
It is also worth noting that the term OADR and “online dispute resolution” aresometimes used interchangeably, and synonymous with “electronic ADR,” “onlineADR” and “Internet Dispute Resolution” For the purpose of the thesis, all the
1° Amy J Sđlun‡z,Lola Akin Ojelabi & John Zelemikow (2022), Researching Ontine Dispute Resolution to Expeont Access to Justice, Ohio State Legal Studies Research Paper No 680, pp 269 - 301.
§ Julia Hams (2009), Cross-Border Internet Dispute Resolution, Cambridge University Press, Engiand,p.75.
Farah C (2005), Crinical Analysis of Online Disprite Resolution: Optimist, Realist axd The Bewildered,
Computer Telecommamications Law Review No 11(4),pp 123 - 128.
© Duang Quynh Hoa 2020), Online Dispute Resoltion in Viemcm, Legislative Studies Jounal, Vol 19(419),p gM
“ Karolina Mania (2015), Online aisprate resolution: The funae of justice, Intemational Comparative
Iwispradence ,pp Tổ ~ 77
Trang 18above would fall under the term OADR In summary, within this research, “onlinealternative dispute resolution” is defined as “the alternative dispute resolutionprocess carried out by combining the information processing powers of computerswith the networked communication facilities of the Internet.”
12.2 Characteristics of Ouline Alternative Dispute Resolution
Serving as a different shade of ADR, OADR embodies the core characteristics
of ADR while integrating technological advancements to enhance its efficiency andaccessibility Like traditional ADR, OADR prioritizes the principles of voluntariness,fairness, impartiality, efficiency, confidentiality and flexibility in resolving disputesoutside of formal court proceedings With this in mind, OADR shall ensure: () anexpedited process that would neither restrict nor hinder other aspects of the disputants’commercial activities, (ii) the enhancement of a sense of cooperation and trustbetween parties to maintain or restore business relationships, (iii) the degree ofconfidentiality necessary to protect businesses’ trade secrets and reputation, (iv) cost-
efficiency.
Nonetheless, it is contemplated that OADR may be as different from ADR asADR is from litigation in court,!® since there are 04 major distinctions between thetwo modes, namely (i) the assistance of technology, (ii) the position of technology as
a party to the dispute resolution process, (iii) informality, and (iv) confidentiality.
First, OADR's utilization of technology to leverage information managementand communication tools makes it a compelling option, offering partiesunprecedented convenience in engaging with the resolution process Howeverstraightforward the concept of OADR might suggest, simple use of online processeslike the sending and receiving of emails does not amount to OADR Instead, it
requires the creation of a “virtual environment” to solve disputes.’ In the OADR
model, the Internet or web-based technologies (i.e online server, websites, chatrooms,voice over Internet protocol) shall assist the information management andcommunication of all or part of the proceedings, from the submission and exchange
'* Hanoi Law University (2018), id,pp 317 - 319
'* Mohamed S Abde] Abdel Wahab than Katsh & Daniel Rainey (2012), Ondbae Dispute Resolution: Theory coud Practice , Eleven International Publishing, the Netherlands ,p 32.
© Blun Katsh & Jet Rifkin (2001), Online Dispute Resolution: Resolving Conflicts in Cyberspace ,
Jossey-Bass,U.S.,p 17
Trang 19of documents, parties’ negotiation, settlement sessions to the deliberation of
outcomes.
Secoud, OADR platforms can take on an active role and either act as the
“fourth party” or the “third party” in commercial dispute resolution On the one hand,the presence of technology itself has been named as the “fourth party”, in addition tothe two disputing parties and third party neutrals (arbitrator, mediator, negotiator) As
a matter of fact, the fourth party is used by third party as a tool for assisting theorgenization and exchanging information On the other hand the OADR platformitself can be the “third party” if it facilitates the negotiation of disputants without theneed for a human intermediary In the case of automated negotiation, one party needsonly submit their claim on the platform, set the preferred solution and the platformwould direct it to the other side to see if they are amenable to the suggestion, or make
a counteroffer accordingly Platforms assisted by artificial intelligence (“AI”) canprocess information to produce a solution that best caters to the interests of bothparties, namely blind bidding or agreement monitoring Some authors suggest it isnecessary to think also of a “fifth party” as the service providers who deliver andproduce the fourth party technology lŠ
Third, the digital nature of OADR platforms lends itself to a more relaxed andinformal setting where participants can engage in the resolution process from thecomfort of their own environments Unlike traditional face-to-face proceedings,OADR proceedings may unfold asynchronously, allowing parties to participate attheir own convenience and pace This asynchronous nature affords individuals theinvaluable opportunity to carefully reflect on their positions, review information, andconsider potential solutions before engaging in decisions Such flexibility empowersparties to approach the resolution process with a sense of autonomy and deliberation,ultimately fostering a more constructive and thoughtful ex change of ideas Overall,the relaxed and asynchronous nature of OADR proceedings contributes to a moreaccessible, inclusive, and participant-centered approach to dispute resolution in thedigital age
Fourth, confidentiality is a fundamental aspect of OADR, safeguarding the
“ Davide Camezo, Paulo Novais, Francisco Andrade , Jolm Zelemikow & José Neves (2014), Ontine ctspute
resolution: on entificial intelligence perspective, Axt#xcinl Intelligence Review Vol 41@),p 214
Trang 20privacy and integrity of the resolution process By default, OADR proceedings areconducted with a high degree of confidentiality, being commenced in an onlineenvironment where the dispute resolution process is susceptible to cyberattacks andunauthorized access if data is mishandled Therefore, the conduct of OADR has totake into account the ADR institutions’ rules on data privacy, as well as relevantstatutes of the seat of arbitration when applicable This confidentiality serves to instilltrust and promote open communication between disputing parties, encouraging them
to freely express their concerns and explore potential resolutions without fear ofundue exposure
1.2.3 Roles of Ouline Alternative Dispute Resolution
First, for the disputing parties, OADR promotes access to justice by providingindividuals and businesses with accessible, affordable, and convenient means ofresolving disputes without the need for lengthy and costly litigation For the lessresourceful such as small and medium enterprises, or disadvantaged parties who arebased in geographically distant areas and/or faced with mobility or disability issues,pursuing a case under a traditional court of law might be out of their reach due togeographical or financial constraints Additionally, some OADR platforms enableparties to discuss asynchronously (i.e communication can take place either in real-time or delayed), accommodating diverse schedules and time zones, as well as giving
them time to think more thoroughly before making any decision.” As a saying goes:
“Justice delayed is justice denied,” expansion of access to justice for marginalizedparties is among the more perceivable roles of OADR
Second, for the business environment, one of the effects of OADR isminimizing disruptions to commercial transactions and fostering stability in
contractual relationships, thereby stimulating business innovation and attracting
capital By providing a digital space where conflicts can be addressed efficientlywithout the need for extensive travel or time-consuming procedures and parties mayconveniently access and review information, OADR helps the disputants escape theexcessively lengthy and costly proceedings to allocate their financial and personnel
'* Bn Katsh (2006), Online Dispute Resolution: Some Implications Have Emergence Of Law in Cyber Space, Lex Electromica, Vol 10, issue 3 Reference: hrtps:/hrvny lex-ele ctronica argfiles/sites/103/10-3 katsh pat, accessed on 16/03/2024
Trang 21capacities to other activities that benefit the businesses Though businesses may incurinitial expenses to modernize and implement the latest technological advancements,aswell asto employ high-quality labor to navigate this novel landscape, nevertheless,benefits in the long run and the spreading effect of this development should offsetpreliminary costs and help to enhance efficiency and competitiveness in the market.
Third, for the legal system, the integration of technology into disputeresolution processes requires a reevaluation of existing legal frameworks to ensurethey are adequately suitable to address the complexities of online interactions Thisinvolves updating regulations to recognize and accommodate OADR mechanisms,clarifying the provisions for authentication of electronic communications, validation
of digital signatures, and mechanisms for enforcing OADR decisions in traditionallegal systems, inter alia F or instance, in order to be consistent with fair process rights,the OADR process must guarantee the integrity of the information transferred duringthe proceedings in order to ensure that the contents of a record have not been altered,that a file or program has been entirely transmitted, and that data really is the data
thatitis claimed to be.” Or in the wake of rapid Al developments that can potentially
affect the integrity of virtual hearing (i.e the deep fake technology), the problem ofidentity authentication of participants is up for debate Embracing these changesrepresents a fundamental shift in how the legal system approaches dispute resolutionand the importance of innovation, accessibility, and fairness in addressing conflicts
in the Digital Age In return, when businesses confide in OADR to settle conflicts, itwill foster positive changes to the current legal framework in order to evolve andintegrate technological advancements into formal processes, thereby promotingadherence to the rule of law in a more cost-effective and transparent way
1.2.4 Historical Development of Ouline Alternative Dispute Resolution
The earliest use of OADR dates back to as far as the 1990s with the expansion
of the World Wide Web and e-commerce platforms Prior to this, commercialdisputes on the virtual environment were few and fer between as the Internet had onlybeen used by very limited numbers for fairly limited purposes.?! Despite initial
*° Hatham A Haloush (2008), The Anthenticity of Online Alternative Dispute Resolution Proceedings , Jounal
of Intentional Arbitration, Vohme 25, Issue 3,pp.355 -364.
`! Mohamed S Abdel Abdel Wahab, Bun Katsh é: Daniel Rainey (2012), sbid,p 23
Trang 22skepticism towards the need and potential of OADR, the growing online populationwitnessed the more frequent occurrence of disputes fueled by the network’s rapidcommunication and information processing capabilities 1996 marks the first OADRmodel: the Virtual Magistrate project was established to offer online arbitrationsystem to resolve defamation matters? This phenomenon soon captured the attention
of the academia, as the idea of OADR was further advanced by Professor Ethan Katshvia a series of publications of VirtualC ourthouse, followed by significant attempts to
adopt OADR programs into operations of various institutions 33
Then came the milestone in the development of OADR — the launch of eBayDispute Resolution C enter which provides a fast-track OADR system for low-valuehigh volume transactional disputes between buyers and sellers, which was the first ofits kind In this system, eBay first asks both buyers and sellers to diagnose theircomplaint, suggest a preferred resolution and communicate with each other directly,
if no agreements are reached, the dispute would be referred to the ResolutionServicesteam who will then evaluate the claims and make a decision about who is right and
who is wrong” This innovation continues to be the world’s most successful OADR
model that has found its way into legislative movements” and resolved an estimated
60 million disputes between small traders every year 26
In 2016, with the United Nations’ recognition of OADR as a viable solution
to the lack of access to effective justice, the United Nations Commission onInternational Trade Law adopted the Technical Notes on Online Dispute Resolution
to assist States, in particular developing countries and States whose economies are intransition, OADR administrators, OADR platforms, neutrals, and the parties to
OADR proceedings in developing and using OADR systems 2” Moreover, OADR
2 Molumed S Abdel Abdel Wahab, tun Katsh & Danie] Raney (2012), id.
» Nikita Vacrevu (2018), Online Disprate Resolution Mecheotsm: Expeasion of Alternate Dispute Resolution
Mechonsm in DuŠa Reference: https:/Megaldesire alemnute- dispute-resohition-me dụanien- ndia/H_ fant, accessed on 15/03/2024
com/oniine-dispute-resolution-mechanismexpansion-“Louis F Del Duca, Colin Rule & Katyn Rimpfel (2014), e#@w De Facto Low Value High Volume Resolution Process: Lessons cad Best Practices for ODR Systems Designers, Vohme 6 Yesrbook on Arbiration and Mediation, pp 206 — 207
2m the United Kingdom’s Civil Justice Council’s report on Online Disprate Resolution for Low Value Civil
Cleams - Online Dispite Resolution Advisory Group (2015), eBay was mchnded as an example of a working online dispute resohition system Reference: Mrtps;/Artrw judiciary ukhyp-contentfuploads/2015/02/Online- Dispute-Resolution-Final- Web- Version| péf , accessed on 15/03/2024
** Louis F Del Duca, Colin Rule & Kathryn Rimpfel (2014), id,p 205.
"https Jamcitral um org/evtextsionline dispute , accessed on 19/03/2024
Trang 23truly gained momentum during the COVID-19 crisis, particularly for internationaltrade, urging businesses to convenve virtually to resolve commercial disputes in dueprocess, ultimately bringing about a fundamental shift in the modern system designfor commercial dispute resolution All in all, the trajectory of OADR from the 1990s
to its global recognition and adoption in various sectors underscores its pivotal role
in modernizing the dispute resolution scene
13 Overview of Online Alternative Dispute Resolution Law
1.3.1 Nature of Outline Alternative Dispute Resolution Law
As established, OADR gives rise to several novel legal issues associated withthe integration of emerging technology into the justice department If left unregulated,the arbitrary use of OADR would potentially violate the State’s principles offundamental justice and overall fairness of dispute resolution practices, which wouldnot only infringe upon the rights and interests of business parties’ but also thenormalcy of the commerce landscape and integrity of the legal system as a whole.Therefore, as the State’s primary regulating tool, OADR law proves to be of utmostimportance in the regulation and promotion of OADR practices
OADR lew is a collection of legal norms that regulate the social relationsarising in the process of resolving commercial disputes by virtual ADR In broadterms, OADR law encompasses many interdependent legal factors that operate inharmony and interact closely with each other, including institutions, legal regulationsand execution mechanisms to ensure the conduct of a certain function on OADRplatforms, or the State’s governance of OADR
On the one hand, OADR law provides a regulatory framework for proceedingwith dispute resolution processes remotely in order to maintain order and stabilitywithin society It sets out legal standards, procedures, and guidelines that govern theuse of online platforms for resolving disputes, which fills in the gap in the currentlegislative landscape that leaves emerging technologies untouched This thusenhances the transparency and fairness of OADR practices On the other hand,OADR lew plays a crucial role in protecting the rights and interests of partiesengaging in OADR It provides safeguards against potential abuses or misconduct,fostering trust and confidence in the integrity of OADR mechanisms Additionally,OADR law serves to uphold the principles of justice and equity in the digital realm,
Trang 24in addition to promoting legal predictability and instilling confidence in traders.
1.3.2 Structure of Ouline Alternative Dispute Resolution Law
There are two sides to OADR law: formal structure and material structure
The formal structure of OADR law refers to the sources of lay governing thepractice of OADR on the basis of traditional ADR First is international treaties andconventions that Vietnam is a member of, such as the United Nations Convention onthe Recognition and Enforcement of F oreign Arbitral Awards which govems aspectsrelevant to international commercial arbitration Second is domestic statutesincluding the Constitution, codes, laws and guiding instruments (i.e Civil ProcedureCode, Commercial Law, Law on Commercial Arbitration, Decree on CommercialMediation, etc), providing mandatory rules that have an overarching effect in thefield of ADR and OADR like the principles, subjects and procedures for resolvingcommercial disputes by alternative means Third is case laws, although theirapplication in Vietnam is selective and for the purpose of reference rather thancompulsory Fourth is customs that elign with the expectations and norms specific tothe parties’ industry, for example, geographically distant parties in international
‘business have the opportunity to commence online arbitration instead of a face meeting to minimize the timespan and costs associated with this traditionalmethod
face-to-The material structure of OADR law is the set of norms that establish corelegal principles, doctrines and specific provisions in connection with commercialactivities, transactions and digital resolution processes It governs substantive mattersrelated to the types of commercial disputes, forms of OADR and applicablerequirements; initiation of OADR; selection of the third party neutral, subjects ofOADR; relevant rights and obligations of participants of the dispute resolutionprocesses, data privacy, authentication of electronic communications, statute oflimitations, burden of proof for electronic evidence; recognition and enforcement ofOADR outcomes, etc As OADR manifests an inherent change to the nature ofdispute resolution from paper-based to online-based, there must be direct regulations
on (4) electronic technology relevant to OADR, (ii) online commercial mediation and(1đ online commercial arbitration, which solidify the legal standing of OADR toconventionally administered cases
Trang 2513.3 Factors Affecting Ouline Alternative Dispute Resolution Law
EnforcementFirst is the ideology and perspective of the Communist Party of Vietnam onjudicial reforms and specifically the application of technological breakthroughs andpromotion of ADR practices The laws of ow country are the result ofinstitutionalizing the ideology and perspective of the Communist Party of Vietnam.Therefore, the Party's viewpoint on judicial reforms andOADR serves as the guidingprinciple for the state in constructing, amending and enhancing the legal framework
of OADR The Communist Party of Vietnam affirmed the need to “encourage of-court disprite resolution mechanisms”** and to utilize “rapid and sustainabledevelopment primarily based on scientific technology, innovation and digitaltransformation”, which paves the way for the institutionalization of OADR legal
out-system.
Second is the level and trend of socio-economic development in Vietnam Thelegal system, when constructed, enacted, and implemented, must always be in linewith the socio-economic situation of the country at that time As an emergingeconomy that is determined to harness the full potential of the Fourth IndustrialRevolution, Vietnam’s goal is to renmovate the justice system that caters to thedem and of streamlining dispute resolution
Third is the current legal framework on ADR and the prospect of interpretingsuch regulations to include OADR It is impractical to anticipate the multifacetedpossibilities that come with the development of OADR technologies to compile intospecific regulations For this reason, OADR law has to have a certain degree ofopenness and flexibility, so that it will be compatible with existing laws as well asinternational norms on OADR
Fourth is the capacity of legal actorsin OADR The primary and most crucialactor is the State When assessing the capacity of the State, it'snot just about its ability
to enact legal documents and policies to promote OADR but also about evaluatingthe State's management capacity, reflected in the quality and effectiveness of its
** Documents of the 13'" National Congress of the Commumust Party of Vietnam.
** Resohition No $2-NQ/TW dated 27 September 2019 of the Politburo on Policies for Active Participation in
the Fourth Industral Revolution
Trang 26governance system Moreover, it is not only the State but also businesses operating
in the market that are affected by OADR law Legalizing OADR models will establish
a long-term vision for the development of commercial dispute resolution, however,how these regulations are materialized and utilized depends largely on the capabilities
of legal entities Regardless of how favorable the legal framework and mechanismsare, if businesses do not innovate their operational mindset, and lag behinddevelopment trends, the newly enacted regulations will not achieve their intendedeffect
14 International Experiences on Online Alternative Dispute Resolution
Law
141 International Experiences in the Legal Recognition of Ouline
Alternative Dispute ResolutionFrance is one of the nations that specifically recognizes OADR in domesticlegal instruments Within the framework of Act No 2019-222 of 23 March 2019 onProgramming 2018 — 2022 and Reform for Justice (“LPJ’), the need for simplifyingcivil procedures and specifically, the promotion of the ADR culture, have culminated
in Article 4, which in pertinent part reads:
“41 Nahwal or legal persons offering whether paid or not, an onlineconciliation or mediation service [ ] are subject to obligations relating to theprotection of personal data and tữÌess agreed by the parties, confidentiality Theonline service provides detailed information on the terms and conditions under whichthe amicable resolution is achieved
42 Natural or legal persons offering whether paid or not am onlinearbitration service are subject to obligations relating to the protection of personaldata and tmÌess agreed by the parties, confidentiality The online service providesdetailed information on the terms and conditions under which the arbitration isrendered
The arbitral award may be rendered in electronic form, unless one of theparties objects.”
Although no definition of OADR is apparent, the fact that such terms havemade their way into French legislation provides a solid legal basis for those who seek
to utilize OADR This is further reinforced through Decree No 2019-1089 dated 25
Trang 27October 2019 on the C ertification of Online Conciliation, Mediation and ArbitrationServices, which provides that online services are subject to audits by the certifyingbody Moreover, the French lawmakers take into account the concerns over dataprotection, thus stipulating that such online services cannot be based solely onalgorithmic or automated processing of personal data (Article 4.3 of the LPJ).
Comparably, the move to online arbitrations in the People's Republic ofChina is supported by Article 30 of the Proposed Draft Amendments to itsArbitration Law released by the Ministry of Justice on 30 July 2021 which providesthat: “Arbitration proceedings can be conducted online.” From these legislativemovements, various mediation and arbitration institutions worldwide are furtherempowered to renovate their operations by amending their OADR Rules and offeringonline services to cater to the rising demand of streamlining commercial đí sputes 3014.2 International Experiences in Legal Electronic Technology Related to
Outline Alternative Dispute Resolution1.42.1 Experiences in Electronic Data Message and Electronic SignatureWhen China revised its Civil Evidence Rules in 2019, new provisions ondisclosure and admissibility of electronic evidence in handling civil cases have been.promulgated which have connotations to the OADR realm Chinese legal practice toauthenticate electronic data includes (i) notarization, (4) authentication via timestamp,
or (iii) blockchain First the notarization of electronic evidence has beenimplemented in China since the 2000s to prove the originality, reliability or othercharacteristics of electronic evidence In light of recent technological developments,online notarization has also been adopted where the parties transfer the informationrelating to the transactions to the notary authority, then the notary assesses the
information and produces a digital notarial deed signed by the notary.3! Second
timestamp binds certain data to a particular time to record the date of existence of that
‘For mstance ,the London Court of Intemutional Arbitration issued the Mediation Rules 2020, Article 6 2 of which directly states that arbitrators may armge online arbitration sessions through conference calls, videoconference or using other conmumication chamels, depending on the parties’ preferences Similarly, Artich 4.1 of the Intemational Chamber of Commerce issued the Mediation Rules 2014 ,which asserts that m cases where there is no agreement among the parties on the verete for direct arbitration, the ICC center may decide the arbitration vemme and may fac iltate oniine meetings Appendix IV on Case Management Techniques
of the hiternational Chamber of Commerce ’s Arbiration Rules 2021 notes that onl communication using telephone or video conferencing is utilized where attendance m person isnot essential
`! Minyan Wang (2008), Slectromic Svidence in Cinna, Digital Evidence and Electron Signature Law
Review, Vol 5,pp 45 - S0
Trang 28data UniTrust Time Stamp Authority issues timestamps that are widely recognized
by courts at all levels? Third blockchain is an emerging technology where the list
of records (blocks) are linked and secured using cryptography and then recorded on
a decentralized peer-to-peer network, eliminating the prospect of modification by anymeans Regarding the use of blockchain as a medium to provide enhanced trust andsecurity in securing evidence, China recently perceived a judgment dated 28 June
2018 where the Hangzhou Internet Court ruled that in an intellectual dispute case,data stored on a third-party blockchain platform was sufficiently reliable and free
from interference that it could be relied upon and accepted by the court as evidence?
Similarly, in the United States (“U.S."), § 1913 of the Vermont Rules ofEvidence provides that: “A digital record electronically registered in a blockchainshall be self-authenticating [ ] if it is accompanied by a written declaration of aqualified person made wnder oath stating the qualification of the person to make thecertification and: (a) the date and time the record entered the blockchain; (b) thedate and time the record was received from the blockchain; (c) that the record wasmaintained in the blockchain as aregular conducted activity; and (d) that the recordwas made by the regularly conducted activity as a regular practice.” This signifiesChina’s and the US.’s progressive approach to utilizing blockchain technology toalleviate the burden of proof standards for disputants, which lays the groundwork forexpedited conduct af OADR
On another note, the level of integrating information technology into thedispute resolution process at international arbitration centers worldwide varies Forinstance, LCIA has amended its arbitration rules to allow for online hearings,electronic communication, the use of digital signatures for tribunal awards and
promote data security In contrast, some other arbitration centers such as the
Singapore International Arbitration Centre or the Hong Kong IntemationalAsbitration Centre ('HKIAC”) only implement or replace some stages with online
“https JAvvrvr china justice observer coma show-to-collect-evidence-from-atemet-and-socialmedia, accessed.
on 26/03/2024.
`' Hangzhou Huatai Yimei Culnre Media Co.,Ltd v Shenzhen Daotong Technology Development Co.,Ltd, Hangzhou Intemet Cout, Province of Zhejumg, People’s Republi of China, 27 Ame 2018.
“London Court of Intemational Arbitration (2020), Updates to the LCIA Arbitration Rules and the LCIA
Mediation Rules (2020) Reference: https cia org/icia-rules-wpdate-2020 aspx, accessed on 21/3/2022
Trang 291.4.2.2 Experiences on Data Privacy Requarements for Online Alternative
Dispute ResolutionFrom an international approach, most OADR platforms have implementedguidelines from accredited institutions to prevent unauthorized access to sensitiveinformation, the Protocol for International Arbitration 2020 issued by theInternational Council for Commercial Arbitration, New York City Bar Associationand International Institute for C onflict Prevention and Resolution (“Pre tocol 2020”).This Protocol recommends a case-by-case determination of a reasonable framework
to guide tribunals, parties, and administering institutions in considering whatinformation security measures to be applied (Principle 1) What specific informationsecurity measure to be selected shall be dependent on (i) the risk profile of thearbitration, (ii) the existing information security practices, infrastructure, andcapabilities of the parties; (iii) resource burden, (iv) proportionality of such measure
to the profile of the arbitration; (v) the efficiency of the arbitration process (Principle6)
Pursuant to Protocol 2020, when the stakeholders have assessed the currentsituation revolving around the case, they shall select appropriate measures for each
of the following categories when applicable: asset management, access control,encryption, communications security, physical and environmental security,operations security, information security incident management For example, two-factor authentication is usually a prominent choice to restrict access to onlyauthorized personnel, in which each participant obtains a unique ID associated withtheir user profile called a “token”, which has to be validated by a second factor/device
upon login (i.e on a phone or via e-mail).* Furthermore, there needs to be an action
plan to manage incidents such as fishing attacks, mail spams, and ransomwareattacks that occur on the virtual platform
1.4.2.3 Experiences in Technological and Technical Standards for Online
`* Nguyen Trung Nam (2021), Online Dispute Resolution in the Covid- 19 Sra: Potential & Limitations, Assessment of New Legs] Provisions — Facilitating Breakthroughs for Businesses m 2021, VIAC.
“ hits //arb#rationblog k huverarbitration c om/20 20/09/25 /onine cybersecurty-chumpions-in-the-covid- 19-ere-time-for-arbitral-nstitutions-to-embrace-odrs/, accessed ơn 26/03/2024
Trang 30-dispute-resohttion-platfamms-Alternative Dispute ResolutionThe technological and technical standards employed by various arbitrationcenters for settling online commercial disputes differ significantly For instance, theInternational Chamber of Commerce (“ICC”) advocates for mutual consent
regarding minimal technical specifications for online dispute resolution 37
Considering the matter of recording and filming during proceedings, parties areprohibited from recording or filming the hearing unless a request is made at least 48
hours in advance and approved by the arbitral tribunal 3Š Conversely, the KoreanCommercial Arbitration Board (“K CAB”) imposes stringent criteria concerning datatransmission speed, frame rate, and image quality that disputing parties must adhere
to Similarly, KCAB mandates that recording or filming during hearings is only
permissible with the tribunal's consent as per the Rules for Organizing OnlineConferences in Seoul International Arbitration In contrast, HKIAC does not
necessitate the consent of the tribunal andinstead emphasizes the parties autonomy.”
`' Intemational Court of Arbitration (2020), JCC Gidove Note on Possible Measines Aimed at Mitigating the 3ffects of the COVID- 19 Peoxiemic ,pp 7 -9
* Intentional Cơurt of Arbitration (2020), idid,p 11.
Korean Conmurcial Arbitration Board (2020), Seord Protocol on Video Conferencing in Duternational
Arbitration Reference:
http /Ayvrty kcabintemational or krAser/Board/comm_ notice _view do 7BBS_NO=548&BD_NO=169&CUR
RENT_MENU_CODE=MENU0025&TOP_MENU_| CODE=MENUDO24, pp 3-4, 6 7, accessed on
23/3/2024
“Hong Kong Intemational Arbiration Centre (2020), HKIAC Gradelines for Vpnud Hearmgs Reference: lưtps./Ávww hkiac orgisites/def aut ies /ck_filebrowser/HKIAC% 20 Guidelmes% 20f0r% 20 Virtual 20He wri ngs_3 pdf, accessed on 23/3/2024
Trang 31SUMMARY OF CHAPTER 1Through studying theoretical issues on OADR and relevant law whileproviding insights on international experiences and best practices for onlinemediation and online arbitration, it can be observed that:
1 The concept of OADR has been around for a long time, following the advent
of the Internet and the resulting surge in the quantity and complexity of commercialdisputes Against this robust backdrop is the imperative to expedite the disputeresolution process with newfound innovations in OADR, especially for cross-borderbusiness parties OADR encompasses three major benefits for different actors in thedispute resolution process: promoting access to justice for disputants, minimizingdisruptions to the business landscape and evolutionizing the legal system
2 OADR has become the major goal of judicial reform not only in Vietnambut the majority of jurisdictions Accordingly, OADR law has been recognized as anindispensable and effective tool of the State which has an overarching effect oncommercial dispute resolution in virtual settings OADR law encompasses manyinterdependent legal factors such as institutions, legal regulations and executionmechanisms In Vietnam, OADR law is influenced by the Party's ideology, the leveland trend of socio-economic development; the current legal system; and the capacity
of various actors in OADR
3 The robust experience of establishing and implementing legal regulationspromoting OADR in many countries around the world provides us with valuablelessons in adopting our own stance on OADR
InChapter 2, the thesis will analyze the current situation of OADR law anditsenforcement in Vietnam, thereby evaluating the advantages, limitations, and causeswithin the current legal framework promoting OADR law in Vietnam
Trang 32CHAPTER 2 ONLINE ALTERNATIVE DISPUTE RESOLUTION LAW INCOMMERCIAL CONTEXTS AND ITS ENFORCEMENT IN VIETNAM2.1 Online Alternative Disp ute Resolution Law in Vietnam
2.1.1 General Regulations ou Legal Electronic Technology Related to Ouline
Alternative Dispute Resolution2.1.11 Electronic Data Message
In the context of the Fourth Industrial Revolution, most commercial dealingshave moved away from conventional paper-based documentation to technology-based standards, from initial communication to further negotiation, to contractconclusion For the sake of convemience, email services and other onlinecommunication platforms such as Messenger, WhatsApp, Telegram, etc have sprung
up to greatly facilitate the instantaneous exchange of information Under clause 3Asticle 95 of the Civil Procedure Code 2015, electronic data messages are “messagesexpressed in the form of electronic data exchanges, electronic documents, emails,telegraphs, telegrams, faxes, and similar forms as stipulated by the electronic
transactions law” The Law on Electronic Transactions 2005*! defines data messages
as information generated, sent, received, and stored by electrical, electronic, digital,magnetic, wireless transmission, optical, electromagnetic means or similartechnologies.” Although the Civil Procedure Code 2015 and the Law on ElectronicTransactions 2005 use two slightly different terms (“electronic data messages” and
“data messages”), based on the provisions, these two terms can be usedinterchangeably (consistently referred to in this thesis as “electronic data messages”).Based onthe definitions above, the majority of messages ex changed over the networkspace can be identified as electronic data messages
In the conduct of OADR, information sent and received between disputingparties, as well as between parties and OADR institutions, is predominantly in theform of electronic data messages Therefore, it is imperative for regulations to bringlegal value to electronic data messages in the way that it is equivalent to writtendocuments in cases required by law, i.e the existence of a written agreement toarbitrate in online arbitration Article 12 of the Law on Electronic Transactions 2005
* The Law on Electronic Transactions 2023 is due to come into force on 01 Rily 2024
Clauses 10 and 12 Article 4 of the Law on Electronic Transactions 2005.
Trang 33recogmzes this principle of equality between electronic messages and printeddocuments, the sole condition of which is that the information can be accessed andused for reference when necessary If it also meets the additional condition ofintegrity in content, the messages are simultaneously considered as originals (Article13)
With regard to the evidential value of electronic data messages, CivilProcedure Code 2015 acknowledges electronic data as one of the sources of evidence(clause 1 Article 94, clause 1 Article 97), therefore, electronic data message isregarded as a type of evidence Furthermore, under the Law on ElectronicTransactions 2005, electronic data message “shall not be demed evidential valuesolely on the grounds that it is an electronic data message” (clause 1 Article 14), andinstead, its authenticity should be determined based on: () the reliability of themethod of initiation, storage, or transmission of the electronic data message, (ii) themethod of ensuring and maintaining the integrity of the electronic data message; (iii)the method of identifying the initiator, and (iv) other relevant factors (clause 2 Article
As electronic evidence has not been clearly defined, it remains to be seen in case a
paper document is digitized and sent to the dispute resolution institution
electronically, can that document be considered electronic evidence?
Second, there are no regulations on the procedure for collecting electronicevidence, thus failing to address issues such as whether parties have the right toextract data on their own or must obtain confirmation from the data storage platform
In a defamation case, the plaintiff presented before the court a certificate confirmingthe existence of a libel on Facebook However, the Court rejected the lawsuit becausethe plaintiff failed to prove that the defendant was the creator and user of theFacebook account spreading the false information and the plaintiff could not provideevidence due to the absence of any mechanism to authenticate user information on
Trang 34Facebook !Š Therefore, specific regulations on the method, procedure, and process of
collecting electronic evidence are essential
Third, the principles for verifying and evaluating electronic evidence have notbeen established Although the Law on Electronic Transactions has provided somecriteria to determine the evidential value of electronic messages, these regulations arestill vague and open-ended Consequently, the dispute resolution body has widediscretion to determine, interpret, and apply evaluation standards it deems appropriate,resulting in inconsistency in handling electronic evidence in trial practice On anothernote, in light of the developm ent of blockchain and other emerging technologies thatexpedite the authentication of digital records with greater accuracy, Vietnam shouldconsider recognizing the use of blockchain in civil proceedings in order to relievedisputents of their burden of proof in certain cases
Fourth, there is no regulation on notarization or authentication regarding thecontent of electronic data messages which can lead to confusion in the use ofelectronic data messages, specifically in arbitration where foreign-languagedocuments must be translated into Vietnamese and the translation must be legallyauthenticated “ Pursuant to Article 2 Resolution No 04/2016/NQ-HDTP, electronicdata messages have the same legal value as the originals if they are signed usingelectronic signature, however, it places the parties at a significantly higher cost toobtain duly authenticated electronic signature, which will potentially hinder thesubmission of electronic evidence for dispute resolution processes
2112 Electronic Ñ\gnahze and Digital Signahre
Signatures are a common indicator of the intention of a party in a commercialtransaction, therefore, in certain cases, the signatures of the parties become arequirement for the validity of that transaction In the process of dispute resolution,the signatures of the parties have become legal requirements in many disputeresolution procedures and processes For example, “docianents on mediation
outcomes must bear the signatures of the parties and the commercial conciliator;"**
* Judgment No 735/2019/DS-PT dated 21 Angust 2019 on Compensation for Damages to Honor and Dignity
by the People's Cowt of Ho Chi Minh City.
*t Artk le 3, Article 70 of the Law on Commercial Arbitration 2010.
* Clause 3 Article 15 of Decree No 22/2017/ND-CP dated 24 Februay 2017 of the Goverment on
Commercial Mediation.
Trang 35or “when the parties agree on the resolution of the dispute, the Arbitral Tribumal shalldraw up a conciliation record with the signatures of the parties and the confirmation
of the Arbitrators,” “arbitral awards must be made in writing and have the signatures
of the Arbitrators.”
Facing new demands for improving the speediness of the dispute resolutionprocesses with the assistance of the latest technologies, Vietnam has adopted theconcepts of “electronic signature” under the Law on Electronic Transactions 2005and “digital signatures” under Decree No 130/2018/ND-CP dated 27 September
2018 of the Government specifying the implementation of the Law on ElectronicTransactions regarding digital signatures and digital signature authentication services.Accordingly, an electronic signature is created “in the form of words, letters, manbers,symbols, sounds, or other forms using electronic means, associated or combinedinalogical manner with electronic data messages, capable of identifying the signatory ofthe data message and confirming their approval of the content of the data message
being signed,”'? while a digital signature is “a form of electronic signature created
by transforming a data message using an asymmetric cryptography system, wherebythe recipient of the original data message and the signer 5 public key can accuratelydetermine: a) That the transformation mentioned above is created using the correctprivate key corresponding to the public key in the same key pair; b) The integrity ofthe content of the data message since the execution of the aforementioned
transformation.”** By a side-by-side comparison of the two statutory instruments, it
can also be seen that the requirements for ensuring the security of electronicsignatures have been met when using digital signatures and digital certificates.Therefore, the use of electronic signatures fulfills all legal requirements regardingsignatures in the dispute resolution process stipulated by relevant ADR laws
However, itisimportant to note that electronic signatures do not automaticallyhave legal validity since Article 24 of the Law on Electronic Transactions 2005 onlystipulates the legal value of electronic signatures in cases where “the law requares ađoctonenf to have a signatre” or “the law reqtdres a document to be stamped by an
4* Article 58 and Article 61 of the Law on Commercial Arbitration 2010.
*” Clause 1 Article 21 of the Lav on Electronic Transactions 2005
Clause 6 Article 3 of the Law on Ekctranic Transactions 2005
Trang 36authority or organization.” Thus, the use of electronic signatures must beimplemented according to the agreement of the parties involved in the transactionregarding whether or not to use electronic signatures and whether those electronic
signatures need to be authenticated.” For example, take a contract for the sales of
goods for example, without a provision explicitly allowing the use of electronicsignatures The legal consequence is that if a dispute arises, one party may contestthe legal validity of electronic signatures because the two parties have not agreed onthe use of electronic signatures in the conclusion of contract As a consequence, it isnecessary to reconsider and evaluate the principle of agreement among partiesregarding the use of electronic signatures
2.1.13 Technological and Technical Standards for Online Alternative
Dispute ResolutionThe emergence and widespread adoption of OADR are conditioned upon thedevelopment of technology for connecting and transmitting real-time textual, audio,and visual data, enabling parties involved in dispute resolution to conduct proceduresover the Internet Currently, our legal system does not specifically regulate thetechnological and technical requirements for OADR platforms, save for the provisiononly applicable to online courts: “technical, technological, operational, andmanagement requirements for ensuring the safety, security of information, and data
as prescribed by the Streme People's Court.”
However, deploying the technological and technical infrastructure is only agateway for the development of OADR In the context of the Fourth IndustrialRevolution, parties have increasingly stringent demands, requiring dispute resolutionprocesses to be faster, more convement, and cost-effective If the technological andtechnical qualityis compromised, it will not only impede the objectives of OADR butalso limit access to justice and the integrity of OADR outcomes (for example, if one
party cannot ensure the transmission line, they cannot adequately exercise their right
to self-defense) Therefore, to leverage the advantages of OADR activities, theminimum requirements should be regulated and standardizedin a legal document thathas a binding effect on various actors natiomvide, Thus, the following standards
** Clause 1 Article 23 of the Lavr on Electronic Transactions 2005
$* Clause 1 Article 5 of the Jomt Circular No 05/2021/TTLT- TAND TC-VKSNDTC-BCA-BQP-BTP.
Trang 37should be transposed into national lew:
First is ensuring the responsiveness of equipment, applications, andtransmission speed A limitation of OADR activities is that the quality of interactionbetween parties depends heavily on the quality of access devices, applications, andtransmission speed A survey showed that in virtual interaction environments, 75%
of respondents felt discomfort when latency exceeded 200ms (0.2 seconds) *!
Objectively evaluating the quality of verbal interaction between parties in disputeresolution during online meetings is always inferior to face-to-face sessions (due tothe inherent delay in information transmission over the Internet) This quality gap ininteraction can only be compensated by enhancing the quality of equipment,applications, and transmission speed to ensure that information is transmitted fully,stably, and almost instantaneously
Second is providing simple, convenient, and user-friendly platforms andsoftware for parties The platforms and software used for OADR vary widely inpractice For example, in the case of online arbitration, some institutions use onlinemeeting services provided by businesses such as Zoom, Skype, Microsoft Teams(e.g,International Chamber of Commerce, New York International Arbitration Centre,American Arbitration Association, Hong Kong International Arbitration Centre),while others develop their own online meeting technologies To encourage parties tochoose OADR and minimize technical risks and disruptions, platforms and softwareserving OADR should be simple, convenient, and user-friendly
Third is ensuring the cost-effectiveness of using technology The costs
incurred in the dispute resolution process (including dispute resolution, travel,
accommodation, etc.) are issues of particular concern to the parties, so the
competitive cost compared to traditional dispute resolution is also a strength that
needs to be exploited in OADR The goal of reducing dispute resolution costs byorganizing online sessions is feasible because, in the current stage, mainstreamtechnology is becoming increasingly affordable since it is widely believed thatOADR activities will save costs for the parties, especially in cross-border disputes
2.114 Data Privacy Requirements for Online Alternative Dispute Resolution
*! Andreas Silzle & Christi Borl (2007), Latency Armovance of Interactive Auditory Virtual Emvirorments.
Reference :]ttp Jpub de ga-alcusti de/DAGA_1999-2008/data Articles (003249 pa, accessed on 20/3/2022
Trang 38Compared to traditional dispute resolution, OADR processes introduce newdata privacy risks, such as information leakage, umvanted use of data, identity theft,cyberattacks, etc Inits broadest sense, data privacy is an umbrella term that governsboth data protection (the right to control access and process one’s personal data) anddata security (the practice of safeguarding data from unauthorized access, breaches,
or damage) Under Vietnamese law, aside from the general provisions in the CivilCode 2015, data protection is regulated under Decree No 13/2023/ND-CP dated 17April 2023 of the Government on the Protection of Personal Data (“Decree No 13”),whereas data security is regulated under the Law on Cybersecurity 2018, Law onCyberinformation Security 2015 and their respective guiding instruments
On the one hand protection of personal data refers to the protection ofelectronic information in the form of symbols, letters, numbers, images, sounds, or
equivalences associated with an individual or used to identify an individual.” In the
OADR contest, it is expected that the parties’ personal data will be collected andretained throughout proceedings for various purposes, including for theauthentication of their identity, which usually involves participants presenting validpersonal identification documents such asID cards, citizen identity cards, passports,
etc.*3 Personal data might also be collected for the purpose of statistics analysis and
improving the quality of services Given the sensitive nature of personal data, Decree
No 13 implies that personal data must be deleted after the appropriate period oncethe mediation or arbitration is completed (Article 16)
On the other hand cybersecurity means “asstaance that activities incyberspace do not harm national security, public order, the lawful rights andinterests of any organization or individual.” whereas cyberinformation securitymeans “the protection of information and information systems in cyberspace frombeing illegally accessed utilised disclosed interrupted altered or sabotaged in
order to ensure the integrity, confidentiality and usability of information”
** Clause 1 Article 2 of Decree No 13/2023/ND-CP dated 17 April 2023 of the Government on the Protection.
of Personal Data
» Joint Circular No 05/202 1/TTLT- TANDTC- VKSND TC-BCA-BQP-BIP dated 15 December 2021 of the
Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, the Maisuy of
Nasi Defense, mổ tit Manly a he on Detailed Regulations and Guidance for Orgmizing Online
S Clause 1 Article 2 of the Law on Cybersecurity 2018.
** Clause 1 Article 2 of the Law on Cyberinformation Security 2015
Trang 39Confidentiality stands as a cornerstone of ADR; thus, the OADR system shouldsecure personal and business data input from being shared to outsiders, as well asprevent them from hacking the system and obtaining non-public information, whetherthis is directly related to a dispute or not Aside from cyberattack risks to sabotagehearing sessions, the advancement of AI and deep learning technologiesin the FourthIndustrial Revolution has enabled users to impersonate others through real-time videomanipulation technology (so-called “deep fake technology’), which can lead tounauthorized individuals using such technologies to deceive the third party neutraland participate in dispute resolution sessions, which affects the integrity of thehearings and may influence the final outcomes For ex ample, if the mediation process
is conducted and negotiated by a person without the authority to represent, even ifthis person signs the mediation agreement, the agreement will not be enforceable.Essentially, impersonation is not merely an implementational issue but requiresadequate attention on a regulatory level As such, the principles of identification andthe handling of impersonation cases need to be uniformly regulated by law
2.1.2 Specific Regulations on Ouline Commercial Mediation and Ouline
Commercial Arbitration
2121 Specific Regations on Online Commercial Mediation
Commercial mediation is a method of resolving commercial disputes agreedupon by the parties, regulated under Decree No 22/2017/ND-CP dated 24 February
2017 of the Government on Commercial Mediation (“Decree No 22”) Pursuant toclause 1 Article 3, the parties will appoint a commercial mediator as an intermediary
to assist in resolving disputes in accordance with the lew Disputes within the scope
of commercial mediation include disputes bebveen parties arising from commercialactivities or disputes between parties where at least one of whom is engaged incommercial activities, or other disputes between parties that the law provides to be
resolved through commercial mediation Additionally, disputes can only be resolved
through commercial mediation if the parties agree to mediate (Article 6 of Decree No.22
The most obvious trend in the development of mediation in the context of theFourth Industrial Revolution is online mediation, particularly after the Covid-19pandemic which urged the preference of disputants to resolve their conflicts online