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

Comments on the regulations of Vietnam and other countries laws on the resolution of commercial disputes through Negotiation .... The specific originof each resolution method can be foun

NGO THANH HANG

453628

A COMPARATIVE ANALYSIS OF

COMMERCIAL DISPUTE RESOLUTION

IN VIETNAM AND OTHER COUNTRIES

GRADUATION THESIS

NGO THANH HANG

453628

A COMPARATIVE ANALYSIS OF

COMMERCIAL DISPUTES RESOLUTION

IN VIETNAM AND OTHER COUNTRIES

Major: Comparative Law

GRADUATION THESIS

SUPERVISOR Prof=NNGUYEN TOAN THANG

STATUTORY DECLARATION

J with iis, declare that I have written the subnitied

Bachelor's Thesis independenily The conclusions and data

in the Bachelor's Thesis are truthful and reliable./

Confirmation of supervisor Author of Bachelor's Thesis

Prof Nguyen Toan Thang Ngo Thanh Hang

ACKNOWLEDGEMENTSWith the culmination of my graduation thesis, I express my sincere appreciation tothose who have been instrumental in the realisation of this research and throughout myacademic journey.

I want to express my gratitude to my thesis stpervisor, Professor Nguyen ToanThang for his kind acceptance in supervising my thesis, for his patience in helping mewith the draft of my thesis and for giving me insightfid comments His immense knowledge

of Comparative Law has significantly shaped this stidy.

I would like to thank the professors, lechwers and library staff of Hanoi LawUniversity for their enthusiastic mentorship and insightfid lessons during my study I angrateful for being promptly provided the necessary information regarding the thesis bythe Comparative Law Institute, Hanoi Law University, which motivated me to completethe thesis on time Without their help I would encounter many difficulties in implementing

my thesis research I gemanely appreciate Prof Dao Le Thu and Prof Pham Quy Dat forinspiring me in the Comparative Law field since my first year of college I also thankProf Do Thi Anh Hong who was incredibly supportive from my graduation thesis

preparation to the submission day.

I am grateful to my family, friends and colleagues who have encouraged and supported me during my study and thesis completion To my family, I am indebted for

their endless love, encouragement and understanding I am deeply thamkftl to my friendsand colleagues for their companionship and the countless discussions that enriched myknowledge of the subject matter

This thesis would not have been possible without the collective efforts andencoimagement of all those mentioned and many others who have touched my academicJourney in various ways Thank you for your invaluable contributions /,

Ngo Thanh Hang

Hanoi Law University, 2023

LIST OF ABBREVIATIONS

ADR : Alternative dispute resolution

CDR : Commercial dispute resolution

eg exempli gratia (for example)

etc et cetera (and so forth)

1.6 id est (that is)

Pp (pp) page (pages)

para paragraph

UNCITRAL : United Nations Commission on International

Trade LawVMC : Vietnam Mediation C enter

VIAC Vietnam Inténational Arbitration C enter

VIMC : Vietnam International Commercial

Mediation C enter

TABLE OF CONTENTSACKNOWLEDGEMENTS

2.1.1 Sources of lav on commercial dispute resolution in Vietnam 1721.2 Sources of lav on commercial dispute resolution in other countries 182.1.3 Comments on sources of law on commercial dispute resolution in

Vietnam and other GGDĐĐHTES:sse‹coizocsoiciatoivDd6csosincgidggfiseteenssagiosaassaLe2.2 The regulations of Vietnam and other countries laws on the resolution of

commercial: disputes through the COUEE - - 60026 -i.S0 0002018161650 LD

2.2.1 The regulations of Vietnam on the resolution of commercial disputes throughthe Court a9

2.2.2 The regulations of other countries on the resolution of commercial disputesABLOUEH the GGUEĂ:: sang csccstic tho Hi hg0480740018608054E0E502Gk200808181140161gg035300gg3gsa220/21272.2.3 Comments on the regulations of Vietnam and other countries laws on the

resolution of commercial disputes through the Courf 242.3 The regulations of Vietnam and other countries laws on the resolution of

commercial disputes through N egotiatiơn son TỔ

2.3.1 The regulations of Vietnam ơn the resolution of commercial disputes throughWie Got at ott ices aE

2.3.2 The regulations of other countries on the resolution of commercial disputestfigbETiNö6EGH01600221926040261007010060445608300510610) ee aie 12092.3.3 Comments on the regulations of Vietnam and other countries laws on the

resolution of commercial disputes through Negotiation ee) |2.4 The regulations of Vietnam and other countries laws on the resolution of

commercial disputes through Mediatiơn ái

2.4.1, The regulations of Vietnam on the resolution of commercial disputes throughMSGSHGE1120171020122xa0niavartctiSebltuofltrlgiaueqesg@aseiidltgigaeatapaaca22.4.2 The regulations of other countries on the resolution of commercial disputesthrough Mediation „.382.4.3 Comments on the regulations of Vietnam and other countries laws on the

resolution of commercial disputes through Mediatiơn 0

2.5 The regulations of Vietnam and other countries laws on the resolution of

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2.5.1 The regulations of Vietnam on the resolution of arbitrations through

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2.5.2 The regulations of other countries on the resolution of arbitrations through

(Ar tit ation sii ae

2.5.3 Comments on the regulations of Vietnam and other countries laws on the

resolution of dispute resolution through Arbitration eee ccccccccccec 46Conclusion for CHIĐ T2-;oascicceccentogiog GbtNGifi GA 086108105i88G1310.36030016sgxgpuagssao TT

CHAPTER 3 IMPLICATIONS TO IMPROVE VIETNAMESE LAW ON

3.1 Development trend of non-court methods of settling commercial business disputes

48

3.1.1 Online commercial business dispute resolution (ODR) 483.1.2 Arbitration —C onciliation taechartism à 223.2 Some specific implications to improve Vietnamese law on on the resolution of

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CONCLUSIONREFERENCES

Ni Necessity of the Research

In recent years, Vietnam has earned recognition for its consistent and robusteconomic growth within the region and globally The Government of Vietnam is activelyworking to create a business-friendly environment, making commitments to supportinvestors and businesses for long-term, sustainable growth One crucial aspect of thiseffort is improving the legal framework for resolving commercial disputes Ì

Over the past 15 years, there has been an increasing need for Vietnamese businesses and their partners to look for dispute resolution forums as Vietnam strives for integration

with global trade The enactment of key legislative instruments such as the CivilProcedure Code 2015, the Commercial Arbitration Law 2010, and Decree 22/2017/ND-

CP on commercial mediation signifies the operationalisation of strategic reforms outlined

in Resolution No 49-NQ/TW, dated June 2, 2005 This resolution, issued by the PartyCentral Committee, outlines a comprehensive strategy for reforming the judicial sectoruntil 2020, which encourages resolving disputes through negotiation, mediation, andarbitration, with court support Simultaneously, following the spirit of the Decision1268/QD-TTg in 2019 approving the "Proposal on perfecting the law on contracts andsettling contract disputes by commercial arbitration and commercial mediation"promulgated by the Prime Minister which pointed out that determining the direction toimprove the lay on contracts, the law on settling contract disputes by commercial

arbitration and commercial mediation in the direction of unity, synchronisation, ensuring enforcement to be a key goal.

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

! Article 2.1L of The Resohttion No 49-NQ/TW dated Ame 2, 2005 of the Politburo on the Judicial Refonm Strategy

to 2020

explore and enhance various avenues for commercial dispute resolution Several methods

have been introduced and acknowledged, including negotiation, arbitration, and

mediation

While economic development suggests a higher likelihood of disputes, an effectiveresolution mechanism is imperative to mitigate potential disruptions The introduction andrecognition of diverse dispute-resolution methods, both domestically and internationally,underscore the necessity for a nuanced understanding of these mechanisms Research onthe law of Vietnam and some countries around the world on commercial disputeresolution methods from a comparative perspective aims to analyze, find lessons learned,

and solutions for Vietnam Furthermore, although comparative jurisprudence is a crucial research trend and has wide application in the construction and completion of the law in

recent years, there is very little comparative research have an broad overview oncommercial dispute settlement in Vietnam and other nations

In light of these considerations, "A Comparative Analysis of Commercial DisputeResolution in Vietnam and Other Conutries” was chosen as the topic for my graduationthesis

2 Literature review

2.1 Foreign publications

In the world, many research works exist on different aspects of commercial dispute

resolution, expressed through various forms, such as monographs, articles published inscientific journals, books, audio, video, etc

Regarding the theoretical issue of commercial dispute and commercial dispute

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

reader with a clear overview of the complexities of an international sale transactionthrough informed analysis of case law, legislation, and international conventions andrules

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

3 Came I.,4& Stone, P (2017), ternational Bade Leow, Taylor & Francis Grow.

* Campbell Dennis (2010), Intemational dispute resobttion, The Comparative Lae Yearbook of bernational

Business Volume 314 Special Issue , Khwver Law International.

development of conflict settlement from ancient times to the 19003! The specific origin

of each resolution method can be found in many articles, such as Hubert Lister Parker

Baron Parker of Waddington (1959)” in "The History and Development of Commercial

Arbitration", which comprehensively discussed commercial arbitration history and what

are its differences compared to arbitration in other field or Joseph Barrett (2004)° with “A

history of alternative dispute resolution: The story of a political, social, and culturalmovement”

On the other hand, studies on the law on commercial arbitration in specificjurisdictions will bring certain legal values to the Thesis Some of the examples are

included Embassy of the United States (2001), "Alternative Dispute Resolution Rules of

Wisconsin of United States 1997°” Courts and Tribunals Judiciary (2023) in “The

Business and Property Courts of England & Wales: The Commercial Couwt Guide”,

Robert A Baruch Bush & Joseph P Folger (1994)° in “The Promise of Mediation

Responding to C onflict Through Empowerment and Recognition”

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

2.2 Domestic publications

‘RALSTON, 7 H (1926),A BRIEF HISTORY OF INTERNATIONAL DISPUTES Advocate of Peace through

Justice ,88(8), 487-497 , ht sAvun jstor ong/stable/2066 1353

* Hubert Lister Parker baron Parker of Waddington (1959), The History coxl Development of Commercial Arbitration, Magnes Press, United Kingdom.

^ Barrett, J T.,& Barrett, J (2004), Ahistory of altermative dispute xesohttion: The story of a political, social, and culnral movement.

¡ Embassy of the Unuted States (2001), “ARemutive Dispute Resobttion Rules of Wiscosm of United States 1997",

tp Jvvietrame se viemam usembassy gov, date 2/7/2001.

* Courts and Trials Judiciary (2023), The Brusiness cond Property Corats of Engicoxi & Wales The Commercial

Corot Giaide, Exventh Edtion.

” Robert A Baruch Bush & Joseph P Folger (1994), The Promize of Mediation: Responting to Conflict Through

Empowerment and Recognition Jossey -Bass Publishers , San Francisco.

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

method or overview of commercial disputes, such as Duong Nguyệt Nga (2007)! and

Phan Chi Hiéu (2006)! analyses the concept of business and commercial disputes,

methods of resolving business and commercial disputes (negotiation, arbitration andcourt) and make several recommendations to improve the law on these methods

“Settlement of economic disputes using negotiation and conciliation" by Tran Ngoc

Dung (2004); “Perfecting the law on commercial reconciliation in Vietnam in the context

of international economic integration” by Le Huong Giang (2019), "Settlement of commercial disputes by arbitration - Operation practices of commercial arbitration centers

in Hanoi city", by Đỗ V an Dai (2018) 2, Ma Hong Nhung (2010) The above-mentioned

works mainly covered general aspects of CDR methods, and there were in-depth studies

on applying these methods in practical cases However, the trend of the above settlementmethods is changing clearly when the legal framework and the form of dispute settlementare becoming more and more advanced Therefore, the above studies have not synthesizedand updated most accurately about methods of resolving commercial disputes andpractices in Vietnam

Most of the comparative research on Vietnam's dispute resolution only focuses onone or two methods, mostly with Laos Saisamone Voravongsa (2017)! and Singha

Neghiamchaleun (201 zs compare the legislation of Vietnam on commercial arbitration to

`? Dương Nguyệt Nga (2007), * ac _ phương thức, gai quyết tranh chấp kh doanh, tương mãi theo pháp hiất Việt Nem trong điều kiên kinh tệ hội nhập kmh tì quốc te”, People's % Coat Journal Qo 16/2007), Vietnam.

'! Bhan Chi Eiêu (2006), “Thue trạng pháp lật giãi quyết tanh chấp kinh doanh ở Việt Nam”, State & Lae

ine (No 12/2006), Viemam.

"Do Văn Dai (2018), Pháp luật trong tài Tường mee Vist Nam - Ban cn và Đình luận 2 bain cop, Vitam.

!3 Mi Hong Nhưng (2010), Cơ zở lý luần và 0ụe tiễn của việc hoàn thiển pháp luật về trong tài thương mại ở Vist

Nam ,LLB Bachelor Thesis, supervised by LLM Đoàn Trưng Kiền, Hanoi Law University, Hanoi, Vetum

!4 Saisamone Voravangsa (2017), Thỏa thin tong tài trong gid quyết tranht chấp thương ti - Ão+ámjt pháp luật

ctia mse CHDCND Lào với pháp luật của nước CHYHCN Điệt Nem , Master Thesis, supervised by Prof Nguyễn,

Vin Ty, Hanoi Lavy University, Hmoi, Vira.

ông Sngha Nghamchalem (2013), Gigi quất tranh chấp thương mại bằng trong tài - So sánh pháp thuật Hệt Nam với phép luật của Cộng hòa dan chui nhén đấm Lào, Master Thesis, supervised by Prof Nguyễn Vin Tuyển, Hmoi LawUniversity, Hanoi, Veta.

that of Laos Similarly, Sonevilay Phetsakhone (2020) and Phoungeun Cheleulath

(2019) compare the legislation of Vietnam on commercial mediation to that of Laos.Thus, most research on commercial dispute resolution in Vietnam has not given a detailedcomparative perspective between Vietnam and other countries other than Laos

As a result, the study “A Comparative analysis of Commercial Dispute Resolution

in Vietuam and other Conutries” does not coincide with prior studies and becomes acompletely novel study

3 Significance of the research

Scientifically, the thesis summarizes all methods of resolving commercial businessdisputes currently applied in Vietnam based on analysis and evaluation of concepts,characteristics, and effectiveness of negotiation, mediation, arbitration, and court Itcontributes to the completion of the civil theory system in Vietnamese legal scienceassociated with the current requirements of international integration of our country Theresearch results of the Thesis serve to equip in-depth knowledge for practical officersworking at law enforcement agencies At the same time, it will be an essential referencefor researchers, legal teaching individuals, research candidates, graduate students, andstudents majoring in dispute resolution at legal education institutions in Vietnam

In practical terms, the research results of the thesis will contribute to building and

completing the concept of commercial dispute in the legal system and are associated withthe requirements of building a Socialist Rule-of-Law State and the judicial reform process

in Vietnam The thesis contributes several recommendations to improve the effectiveness

of settling commercial business disputes in Vietnam based on today’s latest analysis,evaluation, and update It will be valuable reference material for (i) lawmakers andcompetent authorities in completing the Vietnamese regulations on commercial disputesand (1) enterprises seeking dispute resolution methods

4 Research goals and objectives

The research topic aims to clarify the concept of commercial arbitration and to

‘© Phoungem Chakulth (2019), Hoa gidi trong gãi quyết tranh chấp thương mại theo pháp mật Lio và Việt Nam.

qhưới góc độ so sinh, Master Thesis, supervised by Prof Dong Ngoc Ba, Hoi Lew University, Hanoi, Vietruma.

synthesize and analyze related regulations in the current Vietnamese legal system.Moreover, from the comparative law perspective, the Thesis evaluates the regulations ofVietnamese lew on commercial dispute resolution and some foreign laws to find suitablesolutions Last but not least, the Thesis provides several recommendations to meet theneeds and deal with current and expected shortcomings regarding commercial arbitration

in Vietnamese law, especially in the context of Vietnam's trade integration with the world

$i; Research subject and range

The Thesis has two main research objectives The Thesis initially studies theoreticalissues on commercial dispute resolution, including its history, concept, and definition.Subsequently, the Thesis focuses on 4 main resolution methods, including Negotiation,Mediation, Arbitration, andC ourt, along with the laws of other countries and Vietnam

Since the topic aims to compare and evaluate the laws of some countries oncommercial dispute settlement, the Thesis belongs to the field of comparative law Withthe object being types of commercial dispute resolution, the Thesis focuses on analyzingthe civil and commercial law on this issue In addition, the Thesis researches commercialdispute resolution methods in Vietnam and other countries The thesis course alsoproposes some initial solutions to solve the inadequacies of current laws and

complementary measures to promote the development of commercial dispute resolution methods in Vietnam in the coming time.

6 Research methodologies and methods

6.1 Methodologies

To carry out the above-mentioned objectives, the Thesis resorts to Leninism research methodology, dialectical materialism, and the policies of theCommunist Party of Vietnam and the State on a socialist-oriented market economy,

Marxism-democracy promotion, and Socialist Rule-of-Law State.

6.2 Research method

The study also used a variety of research methods

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

method used in this Thesis to clarify the lav on commercial dispute resolution.

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

Third, a systematic method is used to sequence and find consistency amongcommon commercial dispute resolution legislation issues

Fourth, the jurisprudence comparison method is critical to analyze and compare thelews on commercial dispute resolution methods in Vietnam and other countries forimplications to complete the law

Te Structure of the Research

In addition to the Preface, Conclusion, and References, the Thesis comprises threeChapters:

Chapter 1: Theoretical issues of commercial dispute resolution,

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

Chapter 3: Implications to improve Vietnamese law on commercial disputeresolution

CHAPTERITHEORETICAL ISSUES OF COMMERCIAL DISPUTE RESOLUTION

1.1 Concept of commercial disp utes and commercial disp ute resolution

1.1.1 Definitions of Commercial Disp ute

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

struggle over something that does not belong to either party.!” In other words, a dispute is

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

Commercial disputes were first mentioned in the 1997 Commercial Law However,according to this law, a commercial dispute arises from a contract's non-performance orimproper performance in commercial activities The concept of commercial disputes andcommercial activities under the 1997 Commercial Law eliminated many disputes that

were not considered commercial disputes However, they could be considered as such ina contemporary context This created conflicts of lay between national law and

international conventions

The 2005 Commercial Law defines the concept of commercial activities as activities

to generate profits, including the sale and purchase of goods, provision of services,investment, commercial promotion, and other activities for profit Under this concept,

“commercial activities” have been expanded to include any activity for profit Thisapproach is consistent with the recently passed 2020 Law on Enterprises

Law on Commercial Arbitration or legal documents on commercial mediation alsodoes not directly define commercial disputes However, the concept of “commercialactivities” can be understood in a broad sense, which has created similarities in theconcept of “commercial activities" and "commercial disputes” of Vietnamese law with the

general standards of law and international practice According to the LCA, commercial

activities involve one or more commercial acts by individuals or business entities,

including purchasing goods, providing services, distnibuting representing, acting as

" Hoang Phê (2020), Từ điển Tiếng Wiét, Hong Đức Publishing.

commercial agents, etc."® The breakthrough of the LCA in approaching the concept of

“commercial activities” to international standards and legal practices has paved the wayfor further consideration by other legal texts when addressing commercial areas

Thus, it can be understood that a commercial dispute is a conflict regarding thetights and obligations of the parties during the implementation of commercial activities

1.1.2 Commercial disp utes resolution

In general, commercial dispute resolution is the selection of forms and appropriateforms that resolve conflicts of interest between parties However, depending on each stage

of economic and social development, the level of law enforcement and the influence ofculture on different countries will develop different modes of dispute settlement Today,under the influence of the market economy and international economic integration,countries worldwide have widely recognized and applied forms such as negotiation,mediation, arbitration, courts, etc

In a market economy, with the diversity and complexity of trade relations, the

concept of dispute settlement undergoes radical changes The State has gradually institutionalized dispute settlement to ensure maximum business entities self-

determination rights The settlement of trade disputes is built in the following two

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

Thus, settlement of commercial business disputes means that the disputing parties,

through appropriate forms and procedures, solve problems to eliminate contradictions,

'* Article 2(1) and (2) of the Lavy on Commercial Arbitration 2010.

!* Vụ Thi Hoang Trinh (2018), Viemamese legal reform on out-of-covnt dispute settlement methods: Master of

SJorisprudence , Faculty of Law — Hanoi National University,p.11.

conflicts, and disagreements on economic interests to protect their legitimate rights andinterests This is an arbitration process to clarify the legal rights and obligations of theparties, forcing the breaching party to fulfill its responsibilities to the aggrieved party.Settlement in commercial business is a matter determined by the disputing partiesthemselves That is, the parties to the dispute have the right to choose the methods ofsettlement freely and the freedom to choose whether or not to perform all acts notprohibited by law to conciliate and resolve conflicts and disagreements of the parties incommercial business disputes or the freedom to express the will of the litigants inchoosing the competent authority to settle

Business and trade disputes have become an objective, inevitable market economy phenomenon When commercial business disputes arise, it is necessary to resolve them transparently and effectively and protect subjects legitimate rights and interests.

Therefore, the settlement of these disputes needs to meet several principles andrequirements as follows:

Firstly, it is fast and convenient and does not limit or hinder commercial businessactivities The nature of commercial business activities is to take place continuously in asequence If the settlement is prolonged, it will affect the business activities of theentities, may be stopped, and the reputation and competitiveness in the market may bereduced Therefore, prompt and timely settlement is the most basic requirement of thesubjects when disputes arise

Second, it is to restore and maintain cooperation and trust relations between parties

in business and trade When disputes arise, subjects are afraid of affecting their business

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

Third, it is to keep business secrets and the parties reputations Trade secrets areuseful information needed to create success for certain brands Competitors in the

marketplace find many ways to access that information Therefore, any business or entity

that wants to survive for a long time and be sustainable in the market needs to protecttrade secrets, which is essential In addition, the parties reputation is also a concern whensettling commercial business disputes because “commercial business activities are

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

individual to develop in the market" 2

Lastly, it is economically less expensive This is a necessary requirement that anyentity needs because the purpose of the trader is to seek profit The settlement of disputeshas partly affected the interests of the parties Therefore, reducing costs in disputeresolution is one of the top priorities

1.2 Historical development of commercial disp ute resolution mechanisms in

VietnamThe breakthrough of the LCA in approaching the concept of “commercial activities"

to international standards and legal practices has paved the way for further consideration

by other legal texts when addressing commercial areas

Thus, it can be understood that a commercial dispute is a conflict regarding the

tights and obligations of the parties during the implementation of commercial activities.

Throughout history, most Vietnamese have had access to dispute resolution forms

that are more similar to court Other than court, interestingly, mediation (or form relating

to mediation) was used fairly early and became a nommw 2Í Mediation was the favorite alternative dispute resolution method in Vietnamese history, codified in the Hong Đức Law”

It should be noted that resolving disputes under the influence of family, relatives,and friends, using customs and relationships to reduce disputes, and hoping to find asolution when a dispute arises has been a familiar form in Vietnamese society from very

early However, it was rarely done outside of a familial context?

Officially, arbitration as a widely recognized institution for the resolution ofindividual disputes appeared much later in the nineteenth century because the earliest

? Nguyên Manh Linh (2015), Settlement of commercial cispites by cabitration - Practical operation of commercial

q@pbitration centers in Hanoi, Master of Jurisprudence , Hanoi Law University,p.10.

*! Lê Minh Tim, Vũ Thị Nga (2006), Giáo trừnh lich sit nhà nước và pháp luật Piệt Nan , Hanoi Law University,

Cổng an nhân din Publishing,p 255

* Hong Đức Law: Luật Hong Đức or Quốc THêu Hinh Luật or also called LỆ THậu Hinh Luật, written nthe 15" century x

*! Phạm Duy Nghia (2008), Pháp luật mong tài ở Việt Nam: Quá trình phát triển và các vấn để đặt ra,access at:

®ftps:/#ibonline com vn/bao _cao jpháap- hut-trong-tai-o-viet-nam-

qua-trinh-phat-trien-va-cac-van-de-dat-ra-ts-phan-day-nghia>, VTBOnline., last accessed: 28" February 2023,s I,para 1

document found is a decision of The Saigon Court of Appeal on 8“ July 1989, which

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

inthe case of Dương Thi Lành v V6 Van Thu.*

Vietnam fell under French domination and absorbed the French civil and

commercial legal system.” A number of progressive Civil and Civil Procedure Codes

were promulgated in three regions of Vietnam at the end of the 19" century and the first

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

have been established in major cities in Vietnam (Hanoi, Hai Phong Da Nang andSaigon) Commercial dispute rules are already part of complex Civil Procedure Codes

from this period.

~ However, these rules did not seem to have much impact on Vietnamese society

because the French colonialists controlled most of the industry and commerce, with only afew Chinese acting as brokers in the distribution sector, while most Vietnamese only

worked as farmers, craftsmen, or vendors They have no chance to know the concept of

commercial dispute or conduct commercial dispute in any wayAfter gainingindependence, Vietnam eliminates French colonial legacies, including the legal system

and commercial dispute Although existing under the colonial era, private agreements on commercial dispute and enforcement of arbitral awards became absent To settle disputes

between state-owned enterprises and other Socialist entities, an “economic commercial

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

on the economic law of the former Soviet Union and has been established from districts

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

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

*t Đố Văn Dai (2008), Làm the nào để trọng tài là chế dua của doanh nghiệp ở Việt Nem , Nghiên com lập pháp

Joumal, February Issue

** Ngo Huy Cương (2016), Sie coh hướng của pháp hit Pháp tới luật tr ở Việt Nem , Nghiin cứu Lập pháp Jounal,

12G16),p.‡ :

**ViArb Saft (2021), Lich sit phát triển trong tà thương mai tại Việt Neo, access at: <https:Jiviarb xavlich-su-

phat-trừn-trong-tai-tmong-nva+tai-viet-nan/>, ViArb, last accessed: 28th February 2023 ,para.2

?' Pham Duy Nghia (2009), srmranote 61,5 I para 3

** Pham Duy Nghia (2009), sepranote 61,5 I para 3

administrative agency to settle disputes between state-owned enterprises.” In service of relations with the socialist bloc, the Foreign Trade Commercial dispute Committee (Uy ban Trọng tài Ngoại thương) and the Maritime Commercial dispute Committee (Uy ban Trong tài Hàng hãi) were established in 1963 and 1964 These two organizations only

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

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

dispute Committee merged to become Vietnam International Commercial dispute

Center?

In 1994, Decree 116 of the Government was issued, allowing the establishment of

"Commercial Commercial dispute Centers" This is the first signal that Vietnam start to recognize the type of commercial dispute in the sense that the world were using The success of Decree No 116/CP was very limited, if not to say it was a failure to introduce

a modern commercial dispute system 3Š Besides the Vietnam International Commercial

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

4N oticeably, in 1995, Vietnam acceded to the New York Convention (or the United

Nations C onvention on the Recognition and Enforcement of Foreign Arbitral Awards) 3

This marked the changes in the Vietnamese system to develop commercial dispute

To replace the above Decree, the National Assembly Standing Committee issued

the Ordinance on Commercial dispute 2003 5 Implementing this Ordinance, the number

of commercial commercial dispute centers has increased from 5 to 8, of which the

Vietnam International Commercial dispute Center is still the most important commercial dispute center in Vietnam, with a caseload of about 20 cases per year.

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

** Central Council for Legal Dissemmation and Education Coordination (2013) supranote 66,p 28

© ViArb (2021), sepranote 63,para 3

‘ Central Council for Legal Dissemiation and Education Coordination (2013) supranote 66,p 30

`3 Decision 204/TTg dated 28 March 1993 by the Prime Minister

`} Central Council for Legal Dissemmution and Education Coordzvation (2013) supranote 66,p 31

“Vii Ảnh Dương (2008), Tine riến áp doug Pháp lệnh Trọng tài thương mại tại Thong tâm rong tài hương mea

quốc tế Vist Nam, Khoa hoc Pháp lý Joumal, 3 (46).

` Order No 42-L.CTN of 27 September 1995 of the President of the State Pronmigating the Ordinance on the

Recognition and Exforcement of Foreign Arbiral Aovards mn Vierum

* Ordnance 08/2003/PL-UBTVQH

modern commercial dispute system in Vietnam?” As a result, the 2010 Law on

Commercial Commercial dispute was promulgated 3Š In 2014, Resolution

01/2014/NQ-HDTP on Instructions for Implementation of some Provision of the Law On CommercialCommercial dispute was issued by the Supreme People's Court Council of Justices The

2010 Law and 2014 Resolution is now the main legal basis for commercial commercialdispute activities in Vietnam

13 Notable legal systems in other countries on commercial disp ute

resolutionEvery country in the world but two (Palau and Saint Kitts and Nevis) has legislation

on commercial dispute, and out of them, only one that does not have legislation oncommercial dispute resolution (the most recent entity to become a country, South Sudan,solely have law on employment commercial dispute? Furthermore, there are currently

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

Legislation based on the UNCITRAL Model Law on International Commercial

dispute resolution has been adopted in 86 States in a total of 119 jurisdictions.” The

Model Law is designed to assist States in reforming and modemizing their laws on thearbitral procedure to consider the particular features and needs of internationalcommercial disputes It covers all stages of the arbitral process from the commercialdispute agreement, the composition and jurisdiction of the arbitral tribunal, and the extent

of court intervention through to the recognition and enforcement of the arbitral award Itreflects worldwide consensus on key aspects of international commercial dispute practicehaving been accepted by States of all regions and the different legal or economic systems

of the world *!

` Central Council for Legal Dissemination amd Education Coordination (2013) supranote 66,p 32

'* Phan Huy Hồng (2008), Yaa trò ciia toà dn trong hoat đông trong tài, Khoa học pháp lý Jounal, 3(46),pp 22- 3+

” Aceris Law LLC (2019), Commerc ial Commercial dispute , access at: <tttps-/Avvvr zitermational-commerc ia]

dispute- attomey.cona/commerc ial dispute -lawy-of-world/> , Intemational Commercial dispute Attomey, last accessed:

21st February 2023

® United Nations Commission on Intenutional Trade Lay (2023), UNCITRAL,

access at: <https-/Amcitralum org/ente xts/c ommerc ial dispute Anode law /commnercial_commerc ial dispute /status>, Intermtional Commercial dispute Attomey, last accessed: 21st February 2023.

“ United Nations Commission on International Trade Law (2023) supranote 79

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

establishing rules in relation to the form, effect, and interpretation of the award *? The UNCITRAL Commercial dispute Rules are the most popular commercial dispute rules to

be used for adhoc commercial dispute #3

There are a handful of jurisdictions reputable for their commercial dispute system, namely England Singapore, Hong Kong France, and Switzerland Common between these jurisdictions is their comprehensive legal system for commercial dispute Out of

these five jurisdictions, England and France stood out As discussed, England hasarguably had the longest history of commercial dispute resolution, as pointed out byWolaver (1934), with trade glds board of commercial dispute resolving disputes between

members as early as the 12" century Meanwhile, France was the pioneer of commercial

dispute and alternative dispute resolution in modern times; the International Chamber ofthe Commerce Arbitral Court, established in Paris, celebrates its centennial this year

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

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

© United Nations Commission on International Trade Law (2023) supranote 79

* United Nations Commission on International Trade Law (2022), UNCITRAL Commercial dispute Rules, access

at: <https JAmcitralm org/entexts/conmercial dispute mode Lav kommercial_conmercial dispute/stats>, last

accessed: 21st February 2023

“ The law of England, and therefore its commercial dispute law, is in effect for the Keisdxtion of Enghnd, Waks, and Northem Ireland, three of the four countries with the United Kingdom.

Conclusion for Chap ter 1

In Chapter 1 of the Thesis, the historical background and concept of commercialdispute resolution are provided, including the definition and characteristics of the method.After that, the chapter compares the differences between commercial dispute and cout

and identifies UNCITRAL Model Law, Commercial dispute Rules, and the law of France and England as good comparative subjects to benefit the research.

The theoretical issues in Chapter 1 of this Thesis form the basis for the analysis of

current regulations in Vietnam and other countries in Chapter 2 and the proposal for newregulations on commercial dispute resolution in Chapter 3

CHAPTER 2COMPARISON OF COMMERCIAL DISPUTE RESOLUTION METHODS

BETWEEN VIETNAM AND OTHER COUNTRIES2.1 Sources of law on commercial disp ute resolution in Vietnam and other

countries2.1.1 Sources of hw on commercial disp ute resolution in Vietnam

As discussed above in the historical section, Decree 116/CP, dated 5 September

1994, was Vietnam's first attempt to go at modern and up-to- standard commercial dispute

In 1995, Vietnam ascended to the New York Convention Accession to the Conventionmeans that any arbitral award in any country that is a Contracting Party to which oneparty to the award is located in Vietnam or whose property is located in Vietnam may berecognized by the State of Vietnam for acceptance and enforcement protection

Conversely, any Vietnamese arbitral avard may be recognized and enforceable in any Convention member country.

To ensure the legal basis for the operation of commercial dispute resolution centersinstead of economic commercial dispute, on 25 February 2003, the National AssemblyStanding Committee issued the Ordinance on Commercial Commercial dispute, effectivefrom 1 July 2003 However, Vietnam joined the World Trade Organization just shortlyafter with more pressure on the not perfected Ordinance

On the basis of overcoming the limitations of the 2003 Ordinance on Commercialdispute, on 17 June 2010, the National Assembly of Vietnam approved the Law onCommercial Commercial dispute It includes 13 chapters and 82 articles The new lawtakes effect from 1 January 2011 and replaces the 2003 Ordinance on CommercialCommercial dispute, which expired on the same day

In 2014, the 2010 Law was supplemented and clarified by an important document, Resolution 01/2014 Resolution 01/2014 is considered to contain many new and updated

regulations, in line with international practice as well as the Model Law, reducing some ofthe erroneous interpretations of commercial lav by some courts and helping significantlyimprove the court's support for commercial disputes

2.1.2 Sources of hw on commercial disp ute resolution in other countries

Sources of Commercial Dispute Resolution Law in France

France does not have an Commercial dispute Law In France, commercial dispute isconsidered a field of civil procedure governed by the France Decree issued in 1981 andhas not been amended until 2011 In 2011, Decree No 2011-48 of 13 Janmary 2011 wasissued by the Ministry of Justice and Civil Liberties, reforming commercial disputelegislation in France, with significant changes for the French commercial dispute system

to catch up with modern alternative dispute resolution methods and to prepare it for thedigitalized future The Decree is consolidated to be a part of the French Civil ProcedureCode

In French lew, most regulations, even the most basic of commercial dispute, arerooted in adjudication practice French courts have made most of the important rules andcase law on commercial dispute, especially on international commercial dispute

Sources of Commercial Dispute Resolution Law in England

Commercial disputes seated in England Wales, or Northern Ireland are governed bythe Commercial dispute Act 1996 ("English Commercial dispute Act") Although theCommercial dispute Act is comprehensive, it does not codify all elements of English

commercial dispute law, some of which are found in the common law The Act is being reviewed for update in 2023

2.1.3 Comments on sources of law on commercial disp ute resolution in

Vietnam and other countries

Most countries, including Vietnam, have a high-level legal document to govern

commercial commercial dispute In Vietnam, there are Laws, in England they havesimilar-level Acts It is rare that a country governs the field with a document that is lowerthan the law we have in France's case However, it should be noted that the French Decree(consolidated into a lay) on commercial disputes is very comprehensive; it includes 35content articles and 3 more articles compared to the Vietnamese lav Commercialdisputes are taken very seriously by legislators worldwide

Furthermore, it can be observed that, in other countries, their commercial dispute

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

Similar to other countries, Vietnam is a Party to the Convention on the Recognitionand Enforcement of Foreign Arbitral Awards and actively incorporates some of itsprovisions into the Law and Resolution 01/2014

Dissimilar to other countries like France or the United Kingdom, for example,commercial dispute resolution in Vietnam is rarely based on case law and instead relies

only on the letter of the legislation.

2.2 The regulations of Vietnam and other countries laws on the resolution of

commercial disp utes through the Court

2.2.1 The regulations of Vietnam on the resolution of commercial disp utes

through the Court

According to the 1992 Law on Organization of People's Court (as amended andsupplemented in 1993, 1995), the court system consists of the Supreme People's Court,People's Courts of provinces and cities under central authority, People's Courts ofdistricts, towns, cities under provincial authority, Military courts, and other courtsstipulated by laws Under special circumstances, The National Assembly may set upSpecial C ourts (Article 2)

In terms of structure, apart from courts established under laws promulgated before

1992, the Supreme People's Court and People's Courts of provinces consist of Economic Courts, Labor Courts, Administrative Courts, and other specialized courts, which the

National Assembly Standing Committee might establish in necessary circumstances

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

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

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

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

The functions of the people's courts are detailed by the Law on Orgenization of People's Courts 1992 (as amended and supplemented in 1993, 1995), whereby people's courts are competent organs to try criminal, civil, family, economic, labor, administrative

cases and to deal with other matters as stipulated by law

The court is considered a method of resolving disputes at an adjudication agency inthe name of state power, conducted according to strict and strict order and procedures,and the Court's judgment and decision on the dispute, if no voluntary compliance, will beenforced by state coercive power Suppose dispute resolution by negotiation, conciliation,and the commercial dispute is characterized by respect for the right to an agreement or thewill of the participating parties to make a decision In that case, the basic characteristics

of the dispute resolution procedure by the court are through the operation of the judicialapparatus and in the name of state power to make judgments that force the parties to carry

out their obligations, including using coercive power Because it is a State judicial

agency, the court's decision is highly coercive, so when one of the parties does notcomply with the judgment, the C ourt's decision will be enforced

First, about the Court's jurisdiction According to the provisions of Clause 1, Article

29 of the Civil Procedure Code, disputes falling under the Court's jurisdiction are disputesarising in business and commercial activities between individuals and organizations withbusiness registration together, and all have profit purposes According to the provisions

of current law regarding the jurisdiction of Courts at all levels, territorial jurisdiction, and

jurisdiction of the Court according to the plaintiff's choice, it should be noted: i) DistrictCourts have jurisdiction to resolve cases Resolve commercial disputes, ii) If commercialactivities have foreign elements, the resolution of commercial disputes does not fall underthe jurisdiction of the District C ourt but under the jurisdiction of the Provincial C ourt

Second, the right to sue for commercial disputes According to current law, when acommercial dispute occurs, one of the parties has the right to decide to initiate a lawsuit,either personally or through a legal representative, to initiate a lawsuit at a competentcourt Request to protect their legitimate rights and interests The court only accepts andresolves commercial disputes when there is a petition from the parties and only resolves

within the scope of that petition If an individual participating in commercial activities brings a lewsuit in Court, the individual must have full subject capacity (have full civil legal capacity and civil act capacity) Suppose an organization participating in

commercial activities initiates a lawsuit in Court to request resolution of a credit contractdispute In that case, the organization will participate through its legal representative orlegally authorized representative Procedural

Third, about the C ourt's settlement deadline According to the provisions of Point m,Clause 1, Article 29, and Clause 1, Article 179 of the Civil Procedure Code, the time limitfor preparing for the first instance trial of commercial disputes is two months from thedate of accepting the case For cases of complex nature or due to objective obstacles, theChief Justice of the Court may decide to extend the trial preparation time limit, but notmore than one month, for credit contract disputes Resolving commercial disputes throughthe courts has major limitations because the trial time is often longer than other

commercial dispute resolution methods Current judicial procedures are often complex

and time-consuming, including processing applications, making decisions, and executingjudgments The Court's resolution at both first instance and appeal levels can last up to 1year In addition, even if the Court of Appeal makes a final decision, that decision canstill be reviewed at the cassation level due to the discretion of the Supreme Court Nextare the difficulties of the judgment enforcement process related to handling securedassets In addition, choosing this method also has certain disadvantages because court

procedures lack flexibility because they were previously prescribed by lew.

2.2.2 The regulations of other countries on the resolution of commercial

disputes through the Court

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

In English law, the resolution of commercial disputes through the courts isintricately governed by a comprehensive set of regulations and legal principles This

framework provides a structured mechanism for parties seeking redress, upholds the

sanctity of contractual agreements, and promotes a fair and impartial dispensation of

justice *

The well-established court structure is the foundation of commercial disputeresolution within the English legal system English courts are hierarchically organized,with the Supreme Court at the apex, followed by the Court of Appeal, the High C ourt, and

vatious specialized tribunals This tiered structure ensures that disputes are dealt with

appropriately, allowing nuanced legal reasoning and expertise to be applied

One key regulation governing commercial dispute resolution is the Civil ProcedureRules (CPR) The CPR governs the conduct of litigation in England and Wales, providing

a set of rules that parties must adhere to during court proceedings These rules encompassvarious aspects, including the initiation of proceedings, case management, disclosure ofevidence, and the conduct of trials The CPR promotes the efficient and cost-effectiveresolution of disputes while maintaining the objective of achieving justice

In the English legal system, the jurisdiction of the courts to hear commercial

disputes is defined by statutory and common law principles? The Commercial Court, a

division of the Queen's Bench Division of the High Court, handles complex commercialcases Its judges possess expertise in commercial matters, ensuring that individuals with adeep understanding of the intricacies involved adjudicate disputes The principles ofequity and fairness underpin the regulations governing commercial dispute resolution in

© Section 7, English Limitation Act 1980

© Section 10, English Limitation Act 1980

” Cy D [2007] EWCA Civ 1282

English lew The courts strive to interpret and enforce contracts that align with the partiesintentions, emphasizing the sanctity of commercial agreements The doctrine of staredecisis ensures a degree of predictability and consistency in legal decisions, as lowercourts are bound by the precedents set by higher courts Cost management is another vitalaspect regulated by English law in resolving commercial disputes The courts have theauthority to control and allocate costs incurred during proceedings, promoting financialtransparency and preventing undue economic burden on the parties This aligns with thebroader objective of ensuring access to justice while discouraging frivolous orunm eritorious litigation.

While the regulations provide a robust framework for commercial dispute resolution through the courts, the legal landscape is not static Ongoing reforms, such as those aimed

at digitizing court procedures and enhancing the efficiency of case management,

underscore the commitment of English law to adapt to evolving needs and challenges

The regulatious of French on the resolution of commercial disputes throngh theCourt

The French legal system, deeply rooted in civil law traditions, provides acomprehensive structure for handling disputes, ensuring fairness, and upholding the nile

of lav The primary avenue for resolving commercial disputes in France is through thejudicial system French law has established a specialized judicial framework forcommercial matters, known as the commercial courts or “tribunaux de commerce.“ Thesecourts play a pivotal role in adjudicating commercial transactions, contractual

relationships, and business-related conflicts.*®

The jurisdiction of commercial courts extends to a wide array of commercialdisputes, encompassing issues such as breach of contract, payment defaults, businesstorts, and other conflicts that emerge within the realm of commerce These courts areequipped with judges who possess both legal knowledge and practical experience in

commercial matters, ensuring a specialized and efficient approach to dispute resolution The Code of Commerce, a fundamental piece of legislation in French commercial law,

“ Article 1224 French Civil Code

provides the statutory foundation for the resolution of commercial disputes through thecourt system It delineates the powers, procedures, and jurisdiction of the commercialcourts The procedural rules are designed to streamline the adjudication process andenhance the expeditious resolution of disputes, aligning with the needs of commercial

actors.

One distinctive feature of the French legal system is the presence of commercialjudges or "uges consulaires" within the commercial courts These judges are businessprofessionals elected by their peers as part-time judges Their inclusion brings a practicaland business-oriented perspective to resolving commercial disputes This unique featureallows those with industry knowledge to contribute to the decision-making process

The procedural rules governing commercial disputes are established to balance rigor and efficiency The process typically involves submitting written arguments, ex changing

evidence, and oral pleadings The judges, assisted by clerks with legal expertise,meticulously examine the facts and legal arguments before deciding In addition to thecommercial courts, other specialized jurisdictions, such as the Paris Commercial C ourt forinternational disputes or the Administrative Tribunal for disputes involving publicentities, contribute to the nuanced landscape of commercial dispute resolution in France

While litigation through the courts remains a robust and reliable mechanism, Frenchlaw also acknowledges ADR methods Mediation and arbitration are encouraged, partiescan voluntarily opt for these mechanisms to resolve their disputes However, the courtsystem remains a cornerstone, especially when a binding and enforceable decision isimperative

2.2.3 Comments on the regulations of Vietnam and other countries’ hws on theresolution of commercial disp utes through the Court

It is imperative to delve into an analysis of the regulations governing the resolution

of commercial disputes through the court system in Vietnam, France, and England Each

jurisdiction has a distinct legal framework, reflecting its unique historical, cultural, and legal evolution This comparative exploration aims to shed light on the strengths and

weaknesses of these systems and potentially provide insights for improvements

ko %

In Vietnam, the resolution of commercial disputes through the court system isprimarily governed by the Vietnamese Civil Procedure Code and the Commercial LawThe court system is well-established, with a tiered structure that includes district courts,provincial courts, and the Supreme People's Court The legal process is characterized by

an inquisitorial approach, where the court actively investigates the case and gathersevidence While this can expedite proceedings, it may also limit the adversarial nature ofthe process

One notable feature is the emphasis on conciliation and mediation before courtproceedings The law encourages parties to attempt alternative dispute resolution methods

before resorting to litigation This reflects a commendable effort to promote efficiency

and amicable resolutions, aligning with the global trend towards alternative disputeresolution mechanisms

Tuming to France, the French legal system, rooted in civil law traditions,significantly emphasizes written law and legal doctrine Commercial disputes fall underthe jurisdiction of specialized commercial courts, known as "tribunaux de commerce."These courts, composed of experienced business professionals, contribute to thespecialized nature of commercial litigation The French legal system also recognizes theimportance of alternative dispute resolution, with mediation gaining prominence in recentyears This reflects a pragmatic approach, allowing parties to explore non-adversarialavenues before entering the court system

In England, the resolution of commercial disputes is governed by a sophisticated

legal framework, with the foundation laid by the common law system The court system, including the Commercial Court, showcases a robust and adversarial approach to dispute

resolution The adversarial nature of English litigation allows parties to present their casesthoroughly, with extensive oral arguments and cross-examination This contributes todeveloping a rich body of case law, providing legal practitioners with valuableprecedents The English legal system also embraces alternative dispute resolutionmethods, such as arbitration, often preferred for flexibility and confidentiality TheArbitration Act of 1996 solidifies England's commitment to arbitration as a viable

alternative to court proceedings.

Comparing these jurisdictions, it is evident that Vietnam places a strong emphasis

on pre-litigation mediation, reflecting a proactive approach to dispute resolution France,with its specialized commercial courts, combines civil law principles with a recognition

of alternative methods England rooted in common law traditions, showcases a robustadversarial system complemented by a strong culture of arbitration

The regulations on the resolution of commercial disputes through the court system

in Vietnam, France, and England reflect the diverse legal traditions and approaches to

dispute resolution Each jurisdiction has strengths and areas for improvement, and a

comparative analysis provides a valuable perspective for legal scholars and policymakers Understanding the nuances of these legal systems contributes to the ongoing global discourse on effective and fair dispute-resolution mechanisms.

23 The regulations of Vietnam and other countries laws on the resolution of

commercial disp utes through Negotiation2.3.1 The regulations of Vietnam on the resolution of commercial disp utes

through Negotiation

Negotiation is the first form applied to settle when a dispute between the partiesoccurs, especially used in the economic field Instead of resorting to the intervention of athird party, such as the court or commercial dispute, the parties to the dispute will jointly

agree and discuss how to resolve the issues in dispute ' This method is carried out on &

voluntary basis, goodwill of the parties, not coerced by anything

Negotiation is the most common and common method of dispute resolution widely applied by the disputing parties to settle all disputes arising in social life, especially in

commercial activities In other words, negotiation is a method of resolving disputesthrough the disputing parties jointly discussing self-mediating and resolving arisingdisagreements to eliminate disputes without the assistance or judgment of any third party

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

+? Tran Ngoc Dưng (2004), "Giải quyết tranh chấp kanh tế theo phương thúc thương brong, hoa giải “, Jinispridence,

@1),p 10.

disposition of the disputing parties The process of negotiating negotiations in business toresolve disputes can be carried out in many ways: direct negotiation, indirect negotiation,and combining direct negotiation with indirect negotiation.

This method of dispute resolution is often chosen by the majority of traderswhenever a dispute arises because of the simplicity of the method low cost, not beingbound by complicated legal procedures, reputation as well as the maximumconfidentiality in business, and the degree of harm to the cooperation relationshipbetween the parties also low, even enhance mutual understanding and cooperation aftersuccessful negotiation With the definition stated above, the negotiation method has three

main characteristics as follows:

Firstly, this method of dispute settlement is implemented by the internal settlement mechanism (a self-settlement mechanism) through the fact that the disputing parties meet

to discuss and agree to resolve arising disagreements by themselves without the presence

of a third party to assist or make a ruling Conditions for negotiating a trade dispute: First

of all, it must be considered satisfactorily: if a trade dispute occurs, the parties wish toeliminate conflicts, overcome losses, continue to maintain cooperative relations, and theparties have the spirit of goodwill, appeasement, respect and prestige for each other

Secondly, the negotiation process between the parties is not bound by any legalPrinciples or stereotypical provisions of the law on dispute settlement procedures.Vietnam's law only recognizes negotiation as a method of settling commercial disputes(Article 14 of the 2020 Investment Law, Articles 9 and 38 of the 2010 Law on

Commercial Commercial Dispute, Article 317 of the 2005 Commercial Law) without any

provisions governing the mechanism for settling commercial disputes by negotiation

Thirdly, the implementation of the negotiated results completely depends on thevoluntariness of each disputing party without any legal mechanism to enforce the parties’agreement in the negotiation process Settling commercial disputes by negotiation method

is an expression of the disputing parties right to freedom of agreement and disposition.The parties themselves propose solutions and compromise with each other according tothe order and procedures chosen to resolve arising disagreements without the participation

or intervention of any state agencies Negotiation can be done in many ways such as:direct negotiation, indirect negotiation and a combination of both Each method ofnegotiation has certain advantages and limitations.

Therefore, when negotiating to resolve conflicts in disputes, the parties need to haveviews, attitudes, will, goodwill and awareness to resolve conflicts well to avoidprolongation or stalemate When one or the disputing parties lack understanding of thefield in dispute, are not aware of their position on the possibility of winning or losing ifthey have to pursue the case at the jurisdiction or do not have the attitude of cooperative

efforts, lack goochwill and honesty in the negotiation process, the possibility of success is very slim, Negotiation goals and results are often not achieved In addition, the results of negotiations are not guaranteed by institutions of state power, which can lead to abuse in

the negotiation process

Vietnam's law only stops at recognizing negotiation as a method of settling

commercial disputes (Article 14 of the 2020 Investment Law, Article 317 of the 2005 Commercial Law,.) without any provisions governing the mechanism for settling

commercial disputes by negotiation (including subjects, manner of proceeding.timing, ) However, in practice, negotiation can be conducted by two parties meeting tonegotiate or one party sending a complaint to the other and the other party responding to

the complaint

- Negotiating by the two parties meeting is also known as direct negotiation

When a dispute arises, the two parties meet to agree and negotiate a settlement.When meeting, both parties can express their intentions frankly, state their opinions, graspand understand the aspirations of the other party and thus the parties can resolve thedispute However, in foreign trade, negotiating by meeting is often costly and time-consuming, so the two sides often meet to negotiate gas with favorable conditions and forcomplex, large-value disputes On the other hand the two parties can also meet to

negotiate after negotiating by complaint and responding to the complaint without reaching

a result

- Negotiate by complaint and respond to complaints