Doctoral thesis of Law: Improving the law on commercial mediation in Vietnam in the context of international economic intergration

The objects of the research: Legal opinions on commercial mediation including opinions of scientists at both national and international level in published scientific works; current regulations on commercial mediation of Vietnam, some provisions on UNCITRAL Model Law and some typical countries on this field.

IMPROVING THE LAW ON COMMERCIAL MEDIATION

IN VIETNAM IN THE CONTEXT OF INTERNATIONAL

Thesis is completed at:

HANOI LAW UNIVERSITY

Supervisors:

1 Assoc.Prof.Dr Dương Đăng Huệ

2 Dr Đoàn Trung Kiên

Committee member (Opponent) 1:

Committee member (Opponent) 2:

Committee member (Opponent) 3:

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

Available at:

1 National Library of Vietnam

2 Library of Hanoi Law University

LIST OF PUBLICATIONS RELATED TO DOCTORAL THESIS

No Name of publication Journal Number/

Year

Page number

1 Commercial mediation-

Prospect and proposal for

building up the relevant law in

Vietnam

State and Law Review Journal

10 (342)/2016

24 (352)/

12/2017

45-52

3 German law on commercial

mediation and some legal

advices for Vietnam

State and Law Review Journal

7 (363)/2018

9 (121)

-2018

30-36

INTRODUCTION OF THESIS

1 Necessary of the research

Currently, Vietnam is on the path of economic development and integration As a member of the World Trade Organization (WTO), signing new-generation free trade agreements with a lot of comprehensive commitments, Vietnam is playing the same game with developed countries around the world Therefore, our State is making the effort to create a dynamic and modern economy, review and supplement the legal system for ensuring compatibility with that development and integration One of them is developing modern commercial dispute resolutions such as arbitration and mediation The policy in promoting the use of alternative dispute resolutions (ADRs) is to reduce the burden on the court system as well as to diversify business dispute resolutions which is reflected in the Resolution No 49-NQ/TW of the Politburo dated June

2, 2005 on the Judicial Reform Strategy to 2020: "Encourage the settlement of some disputes through negotiation, mediation and arbitration; Courts support them by recognizing that settlements"

Decree No 22/2017/ ND-CP of the Government on commercial mediation (hereinafter called Decree No.22/2017/ND-CP) is a new step to transform the commitments with the WTO on the commercial mediation into national law Establishing the legal framework for commercial mediation also makes the Vietnamese legal system more suitable with international law, such as the UNCITRAL (United Nations Commission on International Trade Law) Model Law on International commercial mediation (2002, amended 2018) (hereinafter called UNCITRAL Model Law) and the laws of some other countries in the world Nevertheless, the further study and improvement of the law on commercial mediation in Vietnam this period is suitable with the development needs, the policy of improving the market economy in Vietnam and the trend of international integration For these reasons, Ph.D candidate have chosen subject

for doctoral thesis: "Improving the law on commercial mediation in Vietnam in the context of international economic integration"

2 Purposes and research tasks

The purpose of the thesis is to systematize and to deepen the theory of commercial mediation; as well as to study and to evaluate the current status of the law on commercial mediation in Vietnam; finally to contribute to improving the law on commercial mediation in Vietnam

To achieve the purpose of research, the task of the thesis is:

- Systematizing, studying and assessing legal opinions on commercial mediation, conceptualizing, analyzing the legal characteristics of commercial mediation, determining the factors governing the law of commercial mediation

trade awards associated with the context of international economic integration, determining the form and content of legislation on commercial mediation;

- Synthesizing, analyzing and evaluating the advantages and disadvantages

of Vietnam's current legislation on commercial mediation and applying the comparison methodology to make the evaluation on current regulations of Vietnam with some of the outstanding regulations of the typical countries on commercial mediation such as Germany, Singapore, Australia and the international regulations of UNCITRAL Model Law;

law Based on the orientations for improving the law, this thesis provides general solutions and specific solutions to improve the law on commercial mediation in Vietnam, and give recommendations following the policy guidelines of the Party and State, meeting the rules of mobilization of the market economy and the reality demands in Vietnam in the current period

3 Objects and scope of research

The objects of the research: Legal opinions on commercial mediation including opinions of scientists at both national and international level in published scientific works; current regulations on commercial mediation of Vietnam, some provisions on UNCITRAL Model Law and some typical countries on this field

For the requirements of capacity, the thesis would be limited in the scope of research:

In terms of research space, thesis focuses on the research on Vietnamese law Some international laws and regulations of other countries are only for reference and comparative assessment in order to make the lessons for the improvement of Vietnamese law, including the UNCITRAL Model Law, national legislation of Germany, Australia, Singapore and some other countries;

In terms of research time, the thesis studies the socio-economic context, Vietnamese law since the Sixth Party Congress (1986) to now, focusing on the period of international integration

In terms of research content, the thesis only deals with mediation in the field of commerce; conciliation and mediation in other fields such as civil and labor would not be covered in thesis This thesis also deals with commercial mediation as an independent resolution for commercial dispute cases governed

have been resolved, the direction of scientific issues should continue to be studied

- Methodology of dialectical materialist methodology to find the independence and the relationship between commercial mediation and other modes of dispute settlement

- Methodology of systematizing and synthesizing, analyzing legal concepts

to solve the problem of commercial mediation theory

- Methodology of analyzing, collating and comparing in law to make the comment on the current status of commercial mediation law in Vietnam

- Methodology of interpretation, inductive and prediction to make proposals and solutions to improve the law on commercial mediation in Vietnam

Among the above methods, the methodology of systematizing, analyzing and comparison of law is used primarily and throughout most of the content of the thesis

5 Research results and new contributions of the thesis

Based on the selection of the results of previous studies on commercial mediation, the thesis has some new scientific contributions:

Firstly, the thesis uses the methodology of systematization and analysis to deepen some of the theoretical issues including the concepts and legal characteristics of commercial mediation, the concept of law on commercial mediation, formulation process, form and content of commercial mediation law

in Vietnam

Secondly, the thesis uses the method of collecting information and analyzing and collating to clarify the role of commercial mediation and the elements affecting to commercial mediation in the context of economic integration, and show how the current international economic integration in Vietnam have the demands and challenges for commercial mediation;

Thirdly, the thesis uses the analytical method to provide comments on current Vietnamese legislation in Decree 22/2017/ND-CP and Chapter XXXIII

of the Vietnamese Civil Procedure Code (2015) on the issue of commercial mediators, the organization of commercial mediation, the settlement of disputes and the management and support of the State for commercial mediation;

Fourthly, use the comparative law methodology to clarify the degree of integration of Vietnam's commercial mediation legislation with the UNCITRAL Model Law and the laws of some countries such as Germany, Singapore, and Australia;

Fifthly, the thesis analyzes the orientations for improving the law on commercial mediation in Vietnam to ensure that it is considered as an effective tool for traders The thesis also give a number of solutions to improve the form

and content of legislation on commercial mediation that are suitable for the context of international economic integration in Vietnam at present

6 Structure of thesis

Apart from the introductory part, the literature review, conclusions, list of references and appendices, the main contents of the thesis are divided into three chapters with the following specific contents:

Chapter 1: Theoretical issues on commercial mediation and law on commercial mediation

Chapter 2: Current status of Vietnamese law on commercial mediation Chapter 3: Orientations and solutions for improving the law on commercial mediation in Vietnam

LITERATURE REVIEW

1 Evaluation of national and international scientific publications on issues related to the topic

1.1 Evaluation of theoretical studies on commercial mediation

Firstly, in terms of the concept of "commercial mediation", there is no scientific work in Vietnam to systematize the concept in domestic and foreign projects In addition, there is much debate between using terms "conciliation" and "mediation" Thus, Ph.D student has found that the further studies of the concept of "commercial mediation" on the basis of systematization and synthesis

of the results of published research is necessary

Secondly, in terms of the legal characteristics of "commercial mediation", although many previous studies have identified the characteristics of commercial mediation, however, Ph.D student has found that it was not yet completed Authors in previous writings have mostly pointed to the basic principles of dispute resolution through commercial mediation, but have not yet fully addressed other legal characteristics such as nature, subjects, purposes, and procedures of commercial mediation

Thirdly, in terms of classification of "commercial mediation”, Ph.D student has found that there is no in depth research on this issue Although, in some journals, some authors have suggested ways of mediation, but mainly giving information, without distinguishing the types of commercial mediation according

as the concept of commercial mediation law, the regulatory elements of commercial mediation in the context of international economic integration, the legal structure of commercial mediation

1.3 Evaluation of research on the current legal status of commercial mediation law

Studies on the current status of commercial mediation law in Vietnam are mainly aimed at identifying the lack of legal framework for commercial mediation and the recommendation for Decree 22/2017/ND-CP In the current context, Decree 22/2017 / ND-CP has been issued; further studies is necessary These international studies on commercial mediation are also valuable sources of reference for the Ph.D candidate in comparing the law and the lessons learned for Vietnam in the process of improving commercial mediation law

1.4 Evaluation of researches on solutions to improve the law on commercial mediation in Vietnam

Legal scientists have also expressed their opinion on the need to improve the law of dispute resolution in a market economy Some researchers have given different views on the development of a law on commercial mediation Some authors also made specific recommendations on the content of legislation In addition, some proposals emphasize the support of the State to commercial mediation so that this method is more developed However, Ph.D candidate find

it necessary to continue to make more suggestions on general solutions in lawmaking as well as others to promote commercial mediation development in Vietnam Proposals to complete the law in previous doctoral thesis, scientific projects was without the appearance of Decree No 22/2017/ND-CP A number

of later journals have offered valuable references and practical applications, the thesis will continue to inherit the results of that researches and develop further arguments

2 The issue needed to be solved by the thesis

Firstly, continuing to systematize and deepen the concept and legal characteristics of commercial mediation

Secondly, analyzing the role of commercial mediation in the context of international economic integration

Thirdly, analyzing theoretical issues on commercial mediation law

Fourthly, analyzing and evaluating the current status of commercial mediation law in Vietnam

Fifthly, the thesis would point out the requirements and solutions to improve the commercial mediation law in the context of international economic integration in Vietnam

3 Research questions, research hypotheses, expected research results

3.1 Research question 1: What is commercial mediation in Vietnam?

Research hypothesis: Commercial mediation is an independent, out-of-court dispute resolution process based on the principle of free will in business and commercial relations

Study results: This research question is expected to solve in Chapter 1 The thesis will systematize and analyze the concept of commercial mediation and the four legal characteristics of nature, subject, purpose and procedure to clarify the independence, out-of-court and free will of commercial mediation

3.2 Research question 2: Which type of intervention that State should apply

to commercial mediation in the context of international economic integration in Vietnam?

Research hypothesis: The law should be adjusted with the type of recommendations and supporting, should not use administrative measures

Expected results: The research questions are addressed in Chapter 1 and Chapter 2, based on the nature of commercial mediation, the form and content of commercial mediation legislation in order to make the explanation for research hypothesis

3.3 Research question 3: Does the current law in Vietnam on commercial mediation respect the nature of commercial mediation, meet the practical needs and requirements of suitability in the context of international economic integration?

Research hypothesis: The law on commercial mediation in Vietnam respects the nature of commercial mediation but it is not sufficient; is able to meet a part of practical needs and the suitability requirements of legal documents system in the context of international economic integration

Expected results: Analyze and prove two factors: (i) The current law respects the nature of commercial mediation but does not clearly distinguish mediation with arbitration; (ii) The current law meets the need for recognition of commercial mediation, the establishment of commercial mediation subjects, the establishment of a mediation procedure and the recognition of the State for the results of mediation, however, there are still some points that are incompatible with international legal trends as well as the laws of some developed countries

3.4 Research question 4: What should the State do to improve the law to ensure the development of commercial mediation model in Vietnam?

Research hypothesis: The government's promulgation of policies and legislation on commercial mediation should be based on practical requirements and consideration of integration factors, respecting the basic principles of the commercial mediation as well

Expected research results: The research question is expected to solve throughout the thesis The thesis provides and demonstrates the issues that the State should do: (i) Proposing general solutions for the promulgation of Laws and policies promoting development of commercial mediation; (ii) Proposals for the development, supplementation or modification of detailed legal provisions on commercial mediation

CONCLUSION OF LITERATURE REVIEW

CHAPTER 1: THEORETICAL ISSUES ON COMMERCIAL

MEDIATION AND LAW ON COMMERCIAL MEDIATION

1.1 Theoretical issues on commercial mediation

1.1.1 Concept and legal characteristics of commercial mediation

1.1.1.1 Concept of commercial mediation

From an academic perspective: The concept of mediation has long been used to reflect the settlement of disputes between parties in a spirit of goodwill, with the involvement of third parties In Vietnam, as well as in the world, scholars have largely proposed the concept of " mediation " without introducing the concept of "commercial mediation"

From a legal perspective: Similarly to the concepts that scholars have developed, the laws of some countries such as Germany, the United States, and Singapore have mostly only the concept of "mediation" which is exist in legal documents regulating the mediation relationship in general, not just the mediation of commercial disputes Differently with the other countries, the provisions on mediation in a general law on mediation, Vietnam regulates

"commercial mediation" in a Government decree adjusting commercial mediation relations, so the definition refers directly to the term "commercial mediation”

The concept of mediation in relation to conciliation: Ph.D students suppose that there is not necessarily a distinction between mediation and conciliation, which may be called mediation in common However, in conciliation, the parties may use different methods of mediation depending on the need and willingness

to settle the dispute, the extent of the mediator's involvement is therefore different

From the above analyzes, commercial mediation could be understood as

follows: Commercial mediation is a independent method of resolving commercial

or business disputes, whereby the disputes of parties would be conducted by a neutral third party (called commercial mediator) chosen by the parties in a procedure with principles of voluntary, confidential; commercial mediators support and help disputed parties reach a settlement with a consensus opinion on the basis of self determination

1.1.1.2 Legal characteristics of commercial mediation

Firstly, in nature, commercial mediation is independent, alternative and of-court which is use to resolve business and commercial disputes

out-Secondly, there is always at least one commercial mediator conducting the mediation case

Thirdly, the purpose of using commercial mediation is that the parties wish

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

Fourthly, commercial mediation has a more flexible, friendly and confidential dispute resolution procedure with parties at a higher level than the arbitration and the court

1.1.2 Classification of commercial mediation

1.1.2.1 In terms of the form of commercial mediation

Statutory commercial mediation: A form of dispute settlement in a commercial mediation organization and in accordance with the mediation rules of that organization In Vietnam, where the parties choose this mode of commercial mediation, the parties may choose a commercial mediation center or arbitration center registered commercial mediation

Ad-hoc commercial mediation: A form of dispute settlement by commercial mediator(s) chosen by the parties and that mediator(s) conduct the case independently and not under the mediation center control

1.1.2.2 In terms of mediation method

The classification of mediation by method is with the purpose to know how mediators conduct the cases The types of mediation referred to below are not transferable to the law Some mediation methods are settlement mediation, facilitative mediation, evaluative mediation and transformative mediation The classification of mediation according to this criterion mainly exists only in academia and practical as well The law does not contain provisions on mediation methods under this criterion From a research perspective, this classification is necessary to clarify the role and extent of mediator interventions in the dispute However, from a legal point of view, the classification of commercial mediation

of this type does not very meaningful

1.1.3 The role of commercial mediation in the current context of international economic integration in Vietnam

Firstly, commercial mediation contributes to improving the level of business freedom in the Vietnamese market

Secondly, commercial mediation reduces the burden on the court system Thirdly, commercial mediation is a tool to help the State implement the policy of international economic integration and sustainable economic development

1.2 Theoretical issues on law on commercial mediation

1.2.1 The concept of law on trade conciliation

In the first level, the law on commercial mediation includes regulations on commercial mediation directly and indirectly, which are stipulated in different legal documents such as the Civil Code, Commercial Law, Investment Law, Consumer Protection Law, Commercial Arbitration Law, Civil Procedure Code, etc

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

to the dispute and the State management toward commercial mediation This is also the approach to the concept of " the law on commercial mediation" in this thesis

The concept of law on commercial mediation could be understood as

follows: The law on commercial mediation is the total legal norm promulgated

or recognized by the State to regulate the relations of commercial mediation

1.2.2 Process of formation the law on commercial mediation in Vietnam

The law on commercial mediation in Vietnam has a fledgling history, which can be said to be rather late in comparison with other modes of dispute resolution methods Commercial dispute resolution procedures outside the courts generally are only formed and developed when the economy moves to a market economy However, even in the first legal documents, when discussing the way

to settle civil and economic disputes, there is no existence of the model of mediation The Ordinance on Economic Contracts of the State Council No 24-LCT / HDNN8 dated 25 September 1989 referred to only in Article 7: "Disputes arising from the performance of economic contracts shall be resolved by negotiation between themselves or bring to economic arbitration." Ordinance of the State Council No 52-LCT / HDNN8 dated 07 May 1991 on civil contracts does not mention measures to mediate disputes in the field of civil and commercial business The process of commercial law mediation is divided into two major stages:

• Period from 1995 to 2015: There is no specific regulation on commercial mediation Mediation was first introduced in the Civil Code (1995) on the article

"Principles of Mediation", and then the Commercial Law (1997) also recognized the mediation of commercial business disputes Since then, legal documents in the civil and commercial sector continue to recognize this model Some of the more specialized laws, such as the Investment Law, Consumer Protection Law also have regulations on mediation However, the general point of these legal documents is that there is only formal recognition without specific provisions for commercial mediation

• Period from 2015 up to now: Phase with specific legal provisions on commercial mediation (the National Assembly promulgates the Civil Code in

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

Court (Article 27); the contents are concretized in Chapter XXXIII on procedures for recognition of conciliation results outside courts (from Article 416 Article 419) Decree No 22/2017/ND-CP dated February 24, 2017 on commercial mediation promulgated following the Prime Minister's Decision No 808/QD-TTg of June 29 on the promulgation of an action plan to implement the overall strategy for the development of the service sector of Vietnam by 2020 In order

to finalize the legal framework for commercial mediation in Viet Nam, on 26 February 2018, the Ministry of Justice promulgated Circular No 02/2018/TT-BTP issued and guided the use of some forms of organization and operation of commercial mediation

1.2.3 Factors controlling the law on commercial mediation in the context of international economic integration

1.2.3.1 Orientation and policies of the Party

The policy of encouraging commercial mediation development is reflected

in Resolution No 49-NQ/TW of the Politburo dated June 2, 2005 on the Judicial Reform Strategy to 2020 on "encouraging the settlement some disputes through negotiation, mediation, arbitration; The court shall issue a decision approving the settlement"; Resolution No 48-NQ/TW by the Politburo on May 24, 2005 on the strategy for building and improving the Vietnamese legal system up to 2010, orienting to 2020 also confirms the orientation for construction and improvement the law in order for international integration, the State must "improve the law on economic dispute resolution (arbitration, mediation) suitable with international commercial practices." One of the factors facilitating the development of mediation in Vietnam is the policy to develop and apply the case law in the court Specifically, Resolution No 48-NQ/TW of the Ministry The guiding principle is that " the use of cases and customs (including international trade practices and rules) and rules of professional associations ”

1.2.3.2 Traditional factors and social needs in the context of integration

The traditional factor is twofold: the adequate side is that Vietnamese society is community-based, harmonious, combining and flexible, respecting self-esteem; the inadequate side is in some of the features such as small business practices, arbitrary habits; limited vision, short-term thinking, lack of linkage, community; relationship-oriented, bureaucratic, dependence, lack of credibility The current social demand for trade mediation is quite large Traders want a more flexible method of dispute resolution than procedural ones, but the results must still be valid

1.2.3.3 The context of the integration economy

A number of factors such as the recognition of the market economy, the expiration of the reserve-clause period as committed to the World Trade Organization (WTO), regional integration (ASEAN), the signing of new