ONLINE ARBITRATION INTERNATIONAL EXPERIENCES AND LESSONS FOR VIETNAM.ONLINE ARBITRATION INTERNATIONAL EXPERIENCES AND LESSONS FOR VIETNAM.ONLINE ARBITRATION INTERNATIONAL EXPERIENCES AND LESSONS FOR VIETNAM.ONLINE ARBITRATION INTERNATIONAL EXPERIENCES AND LESSONS FOR VIETNAM.ONLINE ARBITRATION INTERNATIONAL EXPERIENCES AND LESSONS FOR VIETNAM.
OVERVIEW OF ARBITRATION AND ONLINE ARBITRATION
Arbitration and its advantages
This chapter explores the key features of arbitration and its benefits, followed by a comparison of traditional arbitration procedures with online arbitration methods.
The online arbitration procedure shares key characteristics with traditional arbitration, but it is essential to assess whether the existing legal framework governing traditional arbitration is applicable to online processes If incompatibilities arise, the establishment of a new set of rules may be necessary to effectively regulate online arbitration.
Arbitration is a dispute resolution method where one or more neutral third parties, selected by the disputing parties, make binding decisions.
Arbitration is a formal Alternative Dispute Resolution (ADR) method that differs from other ADRs by imposing specific procedural rules, including deadlines for presenting arguments and evidence Unlike negotiation or mediation, once parties agree to arbitration, they cannot withdraw from the process The primary goal of arbitration is to deliver a final and binding resolution to disputes, with the resulting award being enforceable in a legal context.
The above mentioned characteristics give arbitration considerable relevance among the available ADRs This does not mean that arbitration will always be the
Alternative Dispute Resolution (ADR) offers various methods for resolving conflicts, each with its unique benefits and limitations It is essential for parties involved in a dispute to carefully evaluate which ADR approach best suits their specific situation to achieve an effective resolution.
1.1.2 Advantages of Arbitration in comparison with traditional jurisdiction
Arbitration comes equipped with certain characteristics that make it an attractive option for dispute resolutions Among others, arbitration has the following advantages:
(i) Election of the arbitration: Arbitration allows parties to choose the arbitrator or panel of arbitrators who will solve the dispute.
Selecting arbitrators with specialized knowledge is crucial in disputes that require technical expertise In the realm of e-commerce, particularly in cases related to software sales, parties often prefer to appoint an arbitrator who possesses relevant industry experience and understanding.
The specialized knowledge of an arbitrator can expedite dispute resolution in a cost-effective manner, unlike traditional judges who may lack the necessary expertise and rely on external opinions, potentially prolonging the judicial process and increasing expenses Additionally, parties have the flexibility to form an arbitral panel featuring experts from various fields, such as technical specialists and legal professionals, enhancing the efficiency and effectiveness of the arbitration process.
Internationalization allows parties to choose any global location for arbitration, making it particularly advantageous in international disputes where the involved parties are based in different countries.
Parties can choose an arbitration process that ensures neutrality and equality, free from bias towards either side, thereby guaranteeing a fair and impartial procedure.
Arbitration is particularly advantageous in disputes between parties of different nationalities, as it allows them to appoint an impartial arbitrator rather than risk bias in a national court This process offers flexibility in both procedures and timelines, while still adhering to essential formalities that ensure due process is maintained Consequently, parties can avoid the constraints of traditional court proceedings, making arbitration a more adaptable option for resolving conflicts.
8, as an arbitral procedure can be tailored for each case.
(v) Confidentiality: Arbitration is generally considered to be a confidential procedure Arbitration agreements normally imply confidentiality obligations in connection with all the information exchanges in the arbitral procedure 9
On the other hand, judicial procedures are public and the information related to it may be disclosed.
The confidentiality of arbitral proceedings can encourage e-business transactions by assuring parties that any disputes will remain private This confidentiality is crucial as sensitive information may be shared during arbitration Furthermore, public disclosure of a dispute could lead to significant financial or reputational harm for a company, making confidentiality a key factor in maintaining trust and security in business dealings.
In the Netherlands, parties involved in arbitration can permit limited publicity of the arbitral process With the consent of the parties, arbitral awards can be published while keeping the identities of the parties confidential.
7 T Schultz, G Kaufmann-Kohler, D Langer, & V.Bonet, Online Dispute Resolution: The State of the Art and the Issues, E-Com Research Project of the University of Geneva, Geneva, 2001, http://www.
8 St.John Sutton, David, et al, Russell on Arbitration, 23nd edition, Sweet & Maxwell Limited, London, 2007, p.12.
9 Gabrielle Kaufmann-Kohler, Schultz, Thomas, Online dispute resolution, challenges for contemporary justice, Kluwer law international, 2004, p.49. involved in the Journal of Arbitration.
While arbitration offers a viable alternative for dispute resolution, it does come with certain drawbacks, such as potentially high costs and lengthy processes that can rival judicial proceedings Additionally, although arbitral decisions are binding, they are not self-executing, often necessitating court intervention for enforcement of awards or interim measures However, as this thesis will demonstrate, online arbitration effectively addresses many of these challenges.
Online dispute resolution
1.2.1 Concept of online dispute resolution
In today's technological era, individuals from different locations and time zones can easily enter into contracts with just a few clicks online, leading to the rise of Online Dispute Resolution (ODR) ODR is a form of arbitration that leverages the speed and convenience of the Internet, gaining traction since the early 2000s across various justice systems These systems provide effective resolutions through mediation, arbitration, and judicial processes, fundamentally transforming people's perceptions of justice and altering traditional procedures in both public and private justice systems.
ODR systems are built on the platform of Internet base which allow parties to perform the whole process of dispute resolution, from administrative tasks, for
Online Dispute Resolution (ODR) plays a crucial role in enhancing consumer grievance redressal, particularly in the e-commerce sector By facilitating e-filing and decision-making within a convenient online environment, technology significantly contributes to the effectiveness of this system ODR not only strengthens consumer trust in a competitive market but also promotes sustainable growth in various fields, making it an invaluable option for resolving disputes.
ODR systems are becoming more institutionalized, with various international organizations dedicating resources to promote their use for dispute resolution Numerous legal systems in North America and Europe have initiated judicial ODR systems Additionally, the European Commission has released a Directive on Consumer ADR and a Regulation on Consumer ODR, which includes the establishment of an ODR Platform Both the European Union and the United Nations are advocating for the development of cross-border ODR systems to address commercial disputes.
For its potential growth and impact, ODR is considered a “disruptive legal technology”14 that is possibly involve in the transformation of feature and future
11 There are different definitions of ODR in the literature See Introduction, in ONLINE DISPUTE
RESOLUTION: THEORY AND PRACTICE 1, 3 (Mohamed S Abdel Wahab et al, eds.) (2012).
The Civil Resolution Tribunal Act (S.B.C., Chapter 25, 2012) establishes Online Dispute Resolution (ODR) processes for small claims, traffic cases, and specific property disputes The legislation supports the use of the Money Claim Online platform, enhancing access to judicial remedies Additionally, Lord Justice Briggs' Interim Report on the Civil Courts Structure Review emphasizes the importance of these reforms in improving court efficiency and accessibility.
OF ENG & WALES (December 2015) https://www.judiciary.gov.uk/wp-content/uploads/2016/01/ccsr-interim-report-dec- 15- finall.pdf
(recommending the establishment of an online court for claims up to £25,000)
13 See Council On Online Dispute Resolution For Consumer Reports Regulation No 524/2013 of the European
Parliament and of the Council of 21 May 2013 on Online Dispute: http://eur-ex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L: 2013:165:0001:0012: EN:PDF;
The United Nations Commission on International Trade Law (UNCITRAL) plays a crucial role in creating a comprehensive legal framework for international trade and investment Through its 43rd session and Working Group III focused on Online Dispute Resolution, UNCITRAL emphasizes the importance of modernizing and harmonizing international trade laws The commission's efforts are aimed at facilitating cross-border transactions and ensuring that legal instruments are adaptable to various economic contexts For more information, visit UNCITRAL's official website.
14 See RICHARD SussKIND, THE END OF LAWYERS? RETHINKING THE NATURE OF LEGAL
SERVICES 99-145 (2008) development of contemporary legal system.15
1.2.2 Characteristics of online dispute resolution
ODR, or Online Dispute Resolution, is an alternative method that operates outside the traditional court system, streamlining the dispute resolution process This approach significantly reduces, or even eliminates, the necessity for parties to attend meetings or hearings in person, especially for disputes involving lower-value claims and manageable complexity.
Online Dispute Resolution (ODR) processes stand out from traditional methods due to their significant reliance on information technology, enhancing accessibility, affordability, efficiency, and speed in service delivery While not all ODR applications are strictly software-based, the integration of technology allows for improved dispute resolution experiences The continuous advancements in technology and the growing prevalence of the internet contribute to the evolution of ODR, positioning it as a natural progression in the field of dispute resolution.
Online Dispute Resolution (ODR) faces challenges due to the constraints of digital communication, including issues related to privacy, security, and neutrality Consequently, ODR systems are primarily utilized for straightforward and low-value disputes Notably, the EU ODR Regulation lacks a formal definition of ODR, whereas the United Nations Commission on International Trade Law (UNCITRAL) defines it as a mechanism for resolving disputes through online platforms.
The article discusses the transformative impact of the internet on dispute resolution, highlighting insights from Susskind and Rabinovich-Einy It emphasizes that the evolution of internet society will fundamentally reshape how disputes are resolved, as explored in the Ford-Firestone case This shift signifies a significant change in the legal landscape, particularly in the context of technology and law.
Online Dispute Resolution (ODR) initiatives have faced criticism for prioritizing efficiency over due process, particularly in cross-border disputes that are low in value but high in volume Critics argue that the reliance on automated procedures lacks clarity in distinguishing ODR from traditional Alternative Dispute Resolution (ADR) methods The UNCITRAL definition of ODR is limited in specifying the technologies that can be utilized, yet ODR providers often integrate advanced communication tools and artificial intelligence to enhance impartial decision-making Furthermore, a notable distinction has emerged between ODR and ADR, particularly in automated negotiation processes like blind bidding, where parties submit their offers anonymously through an online platform, allowing algorithms to find a mutually agreeable outcome without disclosing individual bids.
18 This shows significant expansion and flexibility of ORD compared to traditional ADR.
Instrumental Online Dispute Resolution (ODR) systems create a virtual environment for resolving disputes through a specialized communication platform that facilitates online processes These systems enable parties to efficiently gather and share information, enhancing planning, interaction, and decision-making during dispute resolution Despite their advanced capabilities, ODR platforms require human oversight to guide users and manage communication between disputing parties While software tools can be enhanced for better operational efficiency, the involvement of a third-party operator remains essential for effective dispute management.
17 M BARENDRECHT and C HONEYMAN, “Dispute Resolution: Existing Business Models and Looming Disruptions”, Disp Resol Mag 2013-2014, afl 20, 20
18 For a more extensive case study, see: P CORTÉS, ODR, supra note 2, 64-66 they do not have a decision-making role.
Principal Online Dispute Resolution (ODR) systems actively facilitate dispute resolution by enhancing communication and information access, often utilizing artificial intelligence to automate traditional third-party roles These systems educate parties on available options, identify their interests and goals, and propose effective strategies Additionally, they establish and enforce applicable rules, maximize mutual benefits, and empower users to self-determine outcomes Consequently, principal ODR systems significantly reduce reliance on costly traditional dispute resolution methods.
Online arbitration
Online Arbitration, like traditional arbitration, involves resolving disputes through third parties whose decisions are binding, but it incorporates technology as a key differentiator This technological aspect is evident in terms like "transnational online arbitration" and "internet arbitration." According to Slavomir (2011), there are two primary models of online arbitration designed to manage costs and expedite procedures for the parties involved.
19 Henry P De Vries, “International Commercial Arbitration: A Contractual Substitute for National Courts”
20 Antonis Patrikios, “The role of transactional online arbitration in regulating cross-border e-business – Part II” (2008) 24 (2) Computer & Security Report
In today's digital landscape, traditional paper transactions are increasingly being replaced by online arbitration for resolving disputes Major arbitration institutions worldwide now offer online tools that allow parties to file and manage their cases, effectively transitioning disputes from the physical realm to the virtual environment Furthermore, modern business practices enable contract signing through email exchanges, facilitating communication regarding arbitration terms While high-value international contracts may not typically utilize these methods, they are prevalent in smaller, bulk transactions.
Online technology plays a crucial role in Online Arbitration proceedings, where significant components are conducted entirely online Although some procedural aspects, like meetings, may occur in person rather than through conference calls, the arbitration is still classified as an Online Arbitration case if the majority of the process is supported by online technology.
It could be initially concluded the vital role of technology and also a way to differentiate this type of Online Arbitration from offline or traditional arbitration.
Online Arbitration, while closely associated with the Internet, functions as an adjudicatory process that adheres to procedural elements akin to traditional offline arbitration It ultimately provides a final binding or non-binding arbitral award, highlighting its conceptual similarities to offline arbitration.
Another important feature is that online arbitration is not merely a
22 Haitham A Haloush & Bashar H Malkawi, “Internet Characteristics and Online Alternative Dispute Resolution,” (2008) Vol 13 (2) Harvard Negotiation Law Review, at p.342.
23 A view of the scope of rights-based and Internet-based approaches by Alaska Judicial Council; Alternative
Dispute Resolution; and the Alaska Court System, 1999, at p.2,, last visited on.
24 See Chinthaka Liyanage in Online Arbitration Compared to Offline Arbitration and the Reception of Online
Consumer arbitration combines traditional arbitration with online media, highlighting significant differences in core elements such as the fairness and independence of the arbitrator While online arbitration introduces unnecessary components, its degree of compliance with essential factors can vary Nonetheless, online arbitration offers a flexible and valid method of dispute resolution that can be tailored to meet the specific needs of the parties involved.
Online arbitration is a digital dispute resolution process where parties can submit their cases entirely or partially online, utilizing internet technology to reach a consensus on a decision-maker It can be classified into several categories: totally online binding arbitration, where all steps are conducted online; totally online non-binding arbitration, which does not require any online mandates; unilaterally binding online arbitration, where only one party engages in the online process; partly online binding arbitration, which allows for face-to-face interactions during certain stages; partly online unilaterally binding arbitration, where one party completes some online procedures; and partly online non-binding arbitration, involving a mix of online and offline stages.
25 Farzaneh Badiei Online Arbitration Definition and Its Distinctive Features Faculté de droit, UNI MAIL, 40 Boulevard du Pont d‘Arve 1205 Genève, Switzerland arbitration that must be mandated online.
1.3.2 Structure and legal basis of electronic arbitration
1.3.3 In Article 7(1) of Model Law 26 , the content does not include any clear guidance about the exchange of arbitration agreement by online means, for instance, emails or by asserting to an offer on a website; besides, it does not mention any possibility of the formation of arbitration agreements through electronic documents that are signed by electronic signature 27 Under New York Convention, the formation of this type of agreement could be found in requirement of “agreement in writing” 28 , signed by parties or contained in an exchange of letters or telegrams 29 The exchange of letters and telegrams was in 1958 added to make sure that arbitration could be agreed upon using the most modern means of communication Advantages and disadvantages of online arbitration
Online arbitration offers a cost-effective alternative to traditional dispute resolution methods, significantly reducing expenses and saving time The use of an Internet platform eliminates geographical barriers, allowing parties to engage without concerns about location or distance Additionally, the straightforward and convenient nature of the online settlement process minimizes the need for complex procedures, enhancing the appeal of online arbitration As modern software systems continue to evolve, these advantages become even more pronounced.
26 UNCITRAL, UNCITRAL Model Law on International Commercial Arbitration art 7(2), U.N Doc A/40/17 (June 21, 1985), revised by UNCITRAL, Revised Articles of the UNCITRAL Model Law on International
Commercial Arbitration, U.N Doc A/61/17 (July 7, 2006) [hereinafter Model Law]
27 See Model Law, supra note 3, at art 7(1)
Under the more-favorable-right provision of Article VII.1 of the NYC, a party enforcing a foreign award is not required to rely solely on the New York Convention Instead, they have the option to pursue enforcement through an alternative treaty or national legislation, such as Article 1076 of the Dutch Code of Civil Procedure.
The application of online arbitration in both developed and developing countries has the potential to enhance international trade activities, ultimately driving economic growth This innovative mechanism offers several advantages that can facilitate smoother and more efficient dispute resolution in global commerce.
Firstly, the advantage is fast speed: All communications between parties will normally take place via electronic means so this process can be conducted faster than traditional arbitration.
The online arbitration mechanism offers easy access, allowing parties to effortlessly access procedural content and documents This flexibility enables them to present relevant documents from any location and at any time.
Online arbitration mechanisms significantly reduce time and costs by allowing parties to present evidence and documents remotely, eliminating the need for travel to different locations All procedures are conducted via the Internet, streamlining the process and enhancing efficiency.
One significant advantage of this approach is its flexibility, allowing the parties involved to establish a tailored process They can outline convenient implementation stages and select the applicable law based on the specific dispute at hand.
Online dispute resolution, including online arbitration, effectively reduces hostility between conflicting parties The virtual environment fosters a calmer and more confident atmosphere, allowing participants to focus on the core issues at hand This distance helps maintain composure, ultimately enhancing the overall effectiveness of the dispute resolution process.
Online arbitration promotes democracy by ensuring that all parties are treated equally, regardless of their status This democratic approach distinguishes online arbitration from traditional Alternative Dispute Resolution (ADR) methods, enhancing fairness and inclusivity in the process.
APPLICATION OF ONLINE ARBITRATION IN THE
International experience of online arbitration in the world
The Federal Arbitration Act in the United States supports online arbitration, yet conflicts arise between arbitration agreements and state laws The US Federal Trade Commission and Australia's model emphasize government facilitation of stakeholder dialogue, enforcement of consumer protection, and avoidance of new legal duties for arbitration providers In Europe, the Vienna Rules ensure effective, fair, and predictable arbitration and conciliation processes Despite the advantages of online arbitration, its successful implementation is heavily reliant on global digital dissemination.
There is currently no ideal Online Dispute Resolution (ODR) platform model for Vietnam to emulate while developing its legal framework and technological infrastructure for widespread ODR implementation Other examples exist that can provide valuable insights.
2.1.1 Experience of online arbitration in EU
Online arbitration, as noted by Karen et al (2002), primarily focuses on "reliability" as a key penalty Escrow developers are tasked with creating procedural guidelines for international e-commerce businesses, enabling consumers to resolve disputes via online arbitration Non-compliance by e-businesses will result in sanctions imposed by these developers.
In "Creating a Market for Justice," Llewellyn Joseph Gibbons explores the complexities of online consumer arbitration, emphasizing the need for a balanced regulatory framework The article discusses the roles of judicial deference and judicial review in ensuring due process and fair play within this evolving market Gibbons advocates for market incentive solutions that promote equitable outcomes for consumers, highlighting the importance of maintaining a fair playing field in arbitration practices This analysis contributes to the broader discourse on consumer rights and the effectiveness of arbitration in delivering justice.
In the context of online arbitration, the credibility of arbitrators is crucial, as their reputation is closely linked to that of the merchants involved This connection incentivizes trust operators to adhere to established processes, ensuring that arbitrators' decisions are respected However, a lack of trust does not necessarily indicate lower standards within an enterprise To address reliability issues, some EU member states have created public bodies to officially approve and monitor trust points, adhering to agreed principles This initiative aims to assist consumers in determining the trustworthiness of websites they visit.
Many countries do not enforce arbitration agreements in consumer and electronic contracts In the European Union, e-merchants can suggest online arbitration for dispute resolution, but they cannot compel buyers to accept it According to Paul (2018), the Council of Europe's directives on unfair contractual terms limit online arbitration, ensuring that consumers retain their right to pursue legal action.
Cybercourt is a German initiative designed to provide arbitration for online disputes related to banking, insurance, and other services through an online process utilizing email and chatboxes However, the project's founders opted against offering online arbitration due to concerns about the feasibility of enforcing arbitral awards in Germany, as the German Court of Appeals may refuse to recognize them Additionally, there are doubts regarding the constant presence of arbitrators in online proceedings While technology such as videoconferencing could address these concerns, it may significantly increase costs for Cybercourt Nevertheless, advancements in information technology are expected to gradually enhance the viability of online arbitration, potentially making it more widely accepted in Germany and across Europe.
Directive 2013/11/EC and related regulations empower consumers to resolve contractual disputes with merchants through online arbitration, excluding issues related to health and higher education This right extends to products and services purchased both online and offline from merchants within the EU or other countries Dispute resolution agencies must maintain high standards of quality in their online arbitration services, and member state authorities are responsible for evaluating and informing the European Commission about the national dispute settlement bodies available.
2.1.2 Experience of online arbitration in Iran
In 1997, Iran enacted the "Law on International Commercial Arbitration" (LICA), adapting the Model Law with specific modifications While LICA mandates an electronic signature for online arbitration awards, it does not require one for arbitration agreements Consequently, the legitimacy of electronic signatures and arbitral awards is governed by the relevant laws concerning the acceptance of electronic signatures.
The increasing number of internet users and electronic transactions in Iran has led to the recognition of e-signatures and data messages under the Electronic Commerce Law (ECL) established in 2004 This law validates electronic signatures as legitimate substitutes for traditional signatures, ensuring that electronic documents cannot be dismissed in court based solely on their format Additionally, electronic contracts, such as "Click wrap contracts," are acknowledged, provided they include links to terms and conditions and valid online arbitration agreements ECL accepts various types of digital signatures, with Iran employing a hybrid model known as a valid digital signature, although it is not the sole form of acceptable digital signature.
2.1.3 Although Iran has passed ECL laws, the certainty and consistency in those legal systems may not be easily achieved The law recognizes e-signatures without any condition that it applies to all other non-e-commerce cases such as civil procedure law, contract law, and especially arbitration law These laws do not explicitly stipulate electronic signatures and documents Thus electronic signatures can easily be overlooked by judges To reduce the risk of not accepting electronic signatures in online arbitration agreements, provisions regarding the validity of electronic signatures and electronic documents must be included in the relevant laws, especially arbitration law Experience of online arbitration in US
In the United States and other developed nations, online dispute resolution has emerged as a popular and efficient mechanism, offering flexibility and significant cost savings Online arbitration, facilitated by expert arbitrators, is increasingly utilized for resolving disputes in traditional and e-commerce contexts U.S law supports the establishment of organizations dedicated to online mediation, leading to the emergence of notable platforms such as Cybersettle.com, OnlineResolution.com, and Smartsettle.com since the 1980s Today, various websites, including OnlineResolution.com and Mediate.com, provide accessible online arbitration services.
Online arbitration decisions in the US offer a fair resolution of disputes through commercial practices, bypassing the need for national law This approach effectively addresses the challenges posed by inadequate legal frameworks in various countries, streamlining the dispute resolution process.
52 Farzaneh Badii, The Use of Online Arbitration in Iran:The Current Regulatory Framework and the
The establishment of unified legislation for regulating e-commerce is essential, as it can address existing shortcomings in the field Online arbitration is expected to evolve its own body of precedents, which arbitrators can reference when adjudicating similar cases A notable example is ICANN, which has created a precedent system for online domain disputes, leading to hundreds of cases being resolved based on these established guidelines (Karen et al, 2002).
The United States has embraced "commercial reservations," with courts interpreting this term broadly to include low-value consumer transactions as part of commercial activity under the Convention Philip (2013) suggests that online arbitration between US citizens and those from other countries can be effective, provided there are safeguards for the recognition and enforcement of the Convention A foreign arbitral award may only be refused if one party did not receive adequate notice, with US courts emphasizing the overall fairness of the trial Consequently, arbitral tribunals are generally permitted considerable leeway in proceedings However, if a foreign arbitral award is based on a violation of a party's procedural rights, US courts will reject its enforcement (Philip, 2013).
Online arbitration in Vietnam
In Vietnam, arbitration has appeared since the period of economic planning in the early years of the 1960s of the twentieth century under the name of
The growth of the market economy in Vietnam has necessitated the establishment of non-governmental arbitration centers, with over 14 commercial arbitration centers currently operating in the country However, the adoption of online arbitration remains limited.
2.2.1 Legal provisions on online dispute resolution and online arbitration
Since 2005, Vietnam has implemented the New York Convention of 1958 concerning arbitration, along with two key global documents on e-commerce: the Model Law on Electronic Commerce (1996, amended in 1998) and the Model Law on Electronic Signatures (2001), both established by the United Nations International Trade Law Commission (UNCITRAL).
58 On that basis, the Law on Electronic Transactions 2005 and the Law on Information Technology 2006 were enacted to help recognize electronic
56 Fitrianingrum, Agustina & Shahrullah, Rina & Syarief, Elza (2016) LEGAL APPROACHES TO ONLINE ARBITRATION: OPPORTUNITIES AND CHALLENGES IN INDONESIA Mimbar Hukum - Fakultas Hukum Universitas Gadjah Mada 28 314 10.22146/jmh.16724.
Vietnam has adopted several international legal frameworks to enhance its electronic commerce sector, including the 1958 New York Convention, the 1980 CISG, and the UNCITRAL Model Laws on Electronic Commerce (1996) and Electronic Signatures (2001) These measures aim to facilitate transactions and foster the growth of electronic commerce in the country.
Based on the aforementioned laws, Decree 57/2006 / ND-CP and Circular
The Government's Decree No 09/2008/TT-BCT regulates e-commerce by establishing guidelines for information provision and contracting on e-commerce websites used by traders to sell goods or services This decree introduces a mechanism that enables customers to review, supplement, modify, and confirm transaction details before submitting an online order Additionally, it allows customers to review information from traders, providing the option to cancel transactions or confirm contract offers.
Decree No 26/2007/ND-CP outlines the implementation of the Law on Electronic Transactions concerning digital signatures and their authentication services This decree establishes the legal recognition of digital signatures, affirming that data messages signed with these signatures are valid It also acknowledges the equivalence of foreign digital signatures and certificates to those issued in Vietnam Additionally, the decree addresses the resolution of disputes and complaints related to digital signature authentication services, stating that such matters should be settled based on contractual agreements and relevant legal provisions.
Circular No 09/2008 / TT-BCT outlines the legal framework for e-commerce, emphasizing that contracts formed through online interactions on e-commerce websites are legally valid, even without direct oversight from traders E-commerce platforms are required to present comprehensive contract information, including product details, pricing, transaction terms, shipping, and payment methods, to customers prior to contract submission In case of disputes, resolution must adhere to the contract terms displayed at the time of agreement and relevant laws, prohibiting traders from unilaterally resolving issues without customer consent Additionally, traders must clearly outline the mechanisms and processes for addressing customer complaints related to online contracts on their websites.
Decree No 52/ND-CP/2013, issued on May 16, 2013, establishes regulations for e-commerce activities, outlining essential guidelines for the signing and execution of e-commerce contracts This decree ensures that electronic documents in commercial transactions hold the same legal validity as original documents, setting criteria for integrity and reliability It addresses contracts involving traders, organizations, and individuals selling goods, stipulating that e-commerce websites with online ordering features must treat the information provided about goods and services as invitations to contract Additionally, e-documents generated by customers through online orders are recognized as contractual offers for the goods or services requested.
The Decree outlines essential regulations for dispute resolution in e-commerce, mandating that traders, organizations, and individuals with sales e-commerce websites must address customer complaints related to contractual agreements made online In the event of a dispute, resolution should be based on the contract terms available at the time of signing and relevant legal provisions To ensure consumer protection and fairness, the law prohibits sellers from unilaterally resolving disputes without customer consent Dispute resolution is generally required to occur through negotiation, mediation, arbitration, or court proceedings, adhering to established procedures While the law establishes general principles for handling e-commerce disputes, it lacks specific mechanisms for operationalizing Online Dispute Resolution (ODR) Additionally, it mandates that e-commerce providers clearly publish their complaint handling processes and dispute resolution mechanisms on their websites, facilitating mediation between customers and sellers.
59 Decree No 52/ND-CP/2013 from http://vbpl.vn/botuphap/Pages/vbpq-van-ban-goc.aspx?ItemID0470 view on 20 Feb 2020
Circular No 10/2008/TT-BTTTT plays a crucial role in e-commerce by outlining the procedures for resolving disputes concerning Vietnam's national domain names, specifically those ending in ".vn." This regulation is essential for maintaining order and fairness in the online marketplace.
The law outlines methods for resolving domain name disputes, allowing parties to choose from negotiation, conciliation, arbitration, or court litigation When opting for negotiation or conciliation, parties can engage in these processes before or during proceedings, with assistance from the relevant ".vn" domain name registrar or VNNIC to address the disputed domain names effectively.
When parties opt for arbitration to resolve domain name disputes stemming from commercial activities, they must adhere to legal provisions governing the arbitration process The law specifies arbitration as the method for dispute resolution but does not differentiate between online and offline handling, even in the context of e-commerce domain name disputes.
Circular No 46/2010/TT-BTC governs the management of e-commerce websites in Vietnam, outlining requirements for traders and organizations selling goods or services online It mandates the creation of regulations for e-commerce platforms, focusing on transaction principles, safety measures, consumer rights protection, and liability limitations for technical errors Additionally, e-commerce platforms must disclose dispute resolution mechanisms and provide consumers with seller registration details to support their rights However, Vietnam's legal framework lacks comprehensive guidelines for online arbitration in e-commerce disputes, necessitating a cohesive legal structure that aligns with international standards to effectively manage the complexities of transnational e-commerce transactions.
Article 16 of the Commercial Arbitration Law 2010 outlines the acceptable forms of arbitration agreements, which can be established through written exchanges, communication via legal representatives, or references to documents indicating an arbitration agreement Additionally, agreements may be formed through various electronic means such as telegrams, faxes, telexes, emails, and other legally recognized methods Article 7 of the 2014 Commercial Law Resolution further clarifies that if an arbitration agreement's content is ambiguous, interpretations may vary, and the Civil Code will guide the explanation Obligations arising from contracts with a legal arbitration agreement remain applicable to all parties involved, including any transferees, unless otherwise specified Furthermore, Vietnam's VIAC recognizes the validity of arbitration agreements established through videoconferencing and similar methods alongside traditional hard documents.
The government has introduced Decree 22/2017, which outlines the framework for trade mediation in Vietnam This decree details the scope, principles, and procedures for resolving disputes through commercial conciliators, trade mediators, and mediation organizations, including foreign entities Disputing parties have the option to reconcile independently or seek mediation from authorized agencies or individuals, as per their mutual agreement and in compliance with legal standards.
In commercial mediation, parties have the option to select the Mediation Rules from a recognized organization or to negotiate their own procedures If an agreement on the order and procedures cannot be reached, the commercial mediator will determine the most appropriate approach based on the circumstances and the parties' preferences Throughout the mediation process, mediators are empowered to propose solutions to disputes Additionally, the location and timing of mediation sessions should be mutually agreed upon by the parties, or determined by the mediator if no consensus is reached Furthermore, many professional mediation organizations now offer online mediation and arbitration services, allowing for flexible implementation options.
60 See Decree 22/2017 /NĐ-CP https://luatvietnam.vn/thuong-mai/nghi-dinh-22-2017-nd-cp-chinh-phu-112717-d1.html
2.2.2 The application of online arbitration in Vietnam
2.2.2.1 The application of online arbitration