MINISTRY OF JUSTICE MINISTRY OF EDUCATION AND TRAINING HANOI LAW UNIVERSITY MINISTRY OF JUSTICE MINISTRY OF EDUCATION AND TRAINING HANOILAW UNIVERSITY PHAN THI HA LINH 453310 ONLINE ALTERNATIVE DISPUTE RESOLUTION IN COMMERCIAL CONTEXTS - REGULATORY RECOMMENDATIONS FOR VIETNAM Field of Study: Commercial Law SUPERVISOR LL. PHAN VU BACHELOR’S THESIS Hanoi — 2024 ASSURANCE I hereby assure that this fhess is my own work, the conclusions and datain thts Bachelor's the3s are honest and reliable/ Approval of ŠLpervisor Author of the Thesis LIST OF ABBREVIATIONS ADR Alternative Dispute Resolution Al Artificial Intelligence Decree No. 13/2023/ND-CP dated 17 April 2023 of the Government on the Protection of Personal Data Decree No. 22/2017/ND-CP dated 24 February 2017 of the Government onC ommercial Mediation HKIAC Hong Kong International Arbitration C entre ICC International Chamber of Commerce KCAB Korean Commercial Arbitration Board LCA Law onCommercial Arbitration 2010 No.
54/2010/QH12 LPJ Act No. 2019-222 of 23 March 2019 on Programming 2018 —2022 and Reform for Justice OADR Online Alternative Dispute Resolution Protocol 2020 Protocol for International Arbitration 2020 issued by the Intemational Council for Commercial Arbitration, New York City Bar Association and International Institute for Conflict Prevention and Resolution TheUS The United States TABLE OF CONTENT CHAPTER 1. OVERVIEW OF ONLINE ALTERNATIVE DISPUTE RESOLUTION IN COMMERCIAL CONTEXTS. Overview of Alternative Dispute Resolution in Commercial Contexts 5 1.
Definition and Roles of Commercial Dispute Resolution. Altemative Dispute Resolution in Commercial Contezts. Overview of Online Alternative Dispute Resolution. Definition of Online Altemative Dispute Resolution.
Characteristics of Online Altemative Dispute Resolution. Roles of Online Altemative Dispute Resolution. Historical Development of Online Altemative Dispute Resolution 14 13. Overview of Online Alternative Dispute Resolution Law.
Nature of Online Altemative Dispute Resolution Law. Structure of Online Altemative Dispute Resolution Law. Factors Affecting Online Altemative Dispute Resolution Law 1. International Experiences on Online Alternative Dispute Resolution 1.
International Experiences in the Legal Recognition of Online Altemative Dispute Resolution. International Experiences in Legal Electronic Technology Related to Online Altemative Dispute R.-cc eters 20 CHAPTER 2. ONLINE ALTERNATIVE DISPUTE RESOLUTION LAW IN COMMERCIAL CONTEXTS AND ITS ENFORCEMENT IN Bi 10 Us 01), Petree pean cee tee eae eee ee nee ere eee eee eer ee 35 2. Online Alternative Disp ute Resolution Law in Vietnam.
General Regulations on Legal Electronic Technology Related to Online Altemative Dispute Resolution. Specific Regulations on Online Commercial Mediation and Online Cũimmirolal.áccccc6se004608 8A atte Se 2. Enforcement of Online Alternative Dispute Resolution Law in Vietnam 38 2. Achievements in the Enforcement of Online Altemative Dispute Resolution Law in Vietnam.
Limitations and Challenges in the Enforcement of Online Altemative Dispute Resolution Law in Vietnam. Causes of the Limitations and Challenges in the Enforcement of Online Altemative Dispute Resolution Law in Vietnam. RECOMMENDATIONS FOR IMPROVING ONLINE DISPUTE RESOLUTION LAW IN COMMERCIAL CONTEXTS AND ITS 3. Guiding Viewpoints for Improving Online Dispute Resolution Law in Witness Saale RIS ESET NE UE RAD 3.
Directions for Improving Online Dispute Resolution Law in Vietnam 46 3. Recommendations for Improving Online Dispute Resolution Law in Vista en S6a ago teenie ee 3. Recognizing Online Altemative Dispute Resolution in Legal Mu. Affirming Legal Admissibility of Electronic Evidence.
Improving Usage of Electronic Signature and Digital Signature. Establishing Data Privacy, Technological and Technical Standards for Online Altemative Dispute Resolution. Amending and Supplementing Regulations on Online Commercial Mediation and Online Commercial Arbitratton. Recommendations to Improve the Enforcement of Online Alternative Dispute Resolution Law im Vietnam.
Raising Awareness of Online Alternative Dispute Resolution. Training Specialized Expertise for Online Altemative Dispute NRE SOMI ODSus6240181G 000002053 GGA3k,saagsio4fetoiiuBiuoagigbakckigess 3. Improving the Technological and Technical Infrastructure.56 SUMMARY OF CHAPTER 3. 57 CONCLUSION 58 BIBLIOGRAPHY INTRODUCTION 1.
Necessity of the Research As the Fourth Industrial Revolution unfolds, robust technological advancements have brought about the exponential growth of world commerce and an unprecedented surge in the quantity and complexity of commercial conflicts. This phenomenon underscores a rising need for innovative, adaptive and efficient mechanisms in the dispute resolution realm. Within this context, strengthening alternative dispute resolution (“ADR”) mechanisms stands as one of the central goals of Vietnam in the coming time, exemplified in the Communist Party of Vietnam’s Evaluation Report on the Results of Implementing the Socio-economic Development Tasks for the 2016 — 2020 Period and the Orientations and Tasks for Socio-economic Development for the 2021 — 2025 Period at its 13th National Congress. At the same time, through the 10-year Socio-Economic Development Strategy 2021 — 2030, the Party further emphasizes “the development of legal services and mechanisms for resolving disputes outside of court; enhancement of the efficiency and shorten the time for dispute resolution and enforcement of judgments,” as well as “rapid and sustainable development based primarily on science and technology, innovation, and digital transformation.” Online altemative dispute resolution (*OADR”) mechanism thus emerges as a promising solution for resolving commercial disputes.
OADR leverages digital technologies to facilitate remote communication and virtual hearings between disputents in order for them to resolve disputes without the need for physical presence. V arious jurisdictions across the world are also establishing OADR platforms, having recogmzed their potential to enhance access to justice, streamline legal processes, and promote a more efficient resolution of disputes in the Digital Age. These factors urge Vietnam to embrace this trend and invest in the development and implementation of OADR mechanisms. In this effort, the thesis aims to delve into both theoretical and practical aspects of OADR to unravel its pivotal role in modern dispute resolution mechanisms, and how our regulatory framework and enforcement regime may adapt to the increasing demand to implement OADRin Vietnam.Literature Review The literature on OADR encompasses a diverse range of topics, reflecting its significance in contemporary legal practice and technology- driven dispute resolution.
On an international level, the foundation stone for OADR was laid by Ethan Katsh and Janet Rifkin who altogether wrote “Online Dispute Resolution: Resolving Conflicts in Cyberspace” (2001). This first-ever book about OADR explores the concept ofOADR as a by-product of the e-commerce boom and paves the way for the metaphor “Fourth Party”. Deviating from purely technical approach, Julia Hörnle (2009) were the pioneer to evaluate OADR from a legal lens. Schmitz, Lola Akin Ojelabi and John Zeleznikow (2022) view OADR as a means to expanding access to justice if properly designed, implemented, and continually improved.
In Vietnam, as far as 2016, the Multilateral Trade Assistance Project has played an active role in evaluating the OADR system in Vietnam and conducting comparative studies the European Union. The research of Ha Cong Anh Bao andLe Hang My Hanh (2017) later delves into the characteristics ofOADR and assesses the pros and cons of applying OADR in Vietnam. Duong Quynh Hoa (2020) emphasizes the need forOADR and evaluates relevant statutes from the perspective of consumer tights protection In 2023, Phan Chi Hieu and Nguyen Van Cuong devised a comprehensive analysis of OADR law and regulatory recommendations for incorporating technology into mediation, arbitration and litigation procedures. Nevertheless, it is noteworthy that the existing literature predominantly concentrates on the dynamics of OADR in addressing consumer disputes arising out of the thriving e-commerce backdrop, with limited attention on its application in within business interactions and commercial disputes.
By building upon this foundation, the thesis provides a systematic research into the potential ofOADR to facilitate business-to-business dispute resolution, thereby fostering fair and efficient dispute resolution. Scientific and Practical Significance of the Research Scientifically, the thesis fills a critical gap in the existing literature by focusing on the application of OADR mechanisms within commercial contexts. By delving into the theoretical foundations af OADR and its relevance in traditional ADR mechanisms, the study advances our understanding of how technological advancements intersect with legal frameworks to reshape commercial dispute resolution processes. Practically, the thesis offers actionable insights for policymakers, legal practitioners and businessesin Vietnam by evaluating the enforcement of OADR law.
Through a structured analysis of achievements and shortcomings, the study aims to provide regulatory and implementation recommendations that can enhance the accessibility and effectiveness of OADR in Vietnam. Ultimately, the research would contribute to the advocacy and development of more efficient and equitable mechanisms for resolving commercial conflicts in the Digital Age. Objectives of the Research The primary objectives of the thesis are to provide insights into the theoretical foundation of OADR, assess the legal framework and practical implementation of OADR in Vietnam, and propose regulatory recommendations to enhance the effectiveness and accessibility ofOADRin the Vietnamese context. To achieve such objectives, the thesis sets out specific tasks as follows: - Researching fundamental theoretical issues related to ADR, OADR and OADR law, aswell as highlighting relevant international experiences, - Analyzing and evaluating OADR legal framework and practical implementation to identify the achievements and shortcomings in the application of OADR law in Vietnam, while also pinpointing the reasons for these limitations, - Proposing feasible solutions to refine OADR law and enhance the effectiveness of implementing OADR law in Vietnam.
Subject and Scope of the Research The research subjects are regulations related to OADR in settling commercial disputes in Vietnam (particularly electronic data messages, electronic signature and digital signature; data privacy, technological and technical requirements for OADR platforms; regulations specific to online commercial mediation and online commercial arbitration) and the implementation of such regulations, laws from other jurisdictions concerning OADR (limited to 03 countries with reputable systems of ADR) to propose recommendations for improving the Vietnamese legal framework on this matter. The scope of research is limited to legal aspects of OADR in settling commercial disputes (i. electronic technologies that facilitate OADR, online commercial mediation and online commercial arbitration), the focal point of whichis on the adaptability of our contemporary legal framework against unprecedented problems emerged from the multi-faceted influence of the Fourth Industrial Revolution. Due to the autonomous nature and the State’s limited interference in parties’ self-bargaiming, online negotiation is beyond the scope of this thesis.
Research Methodologies The research methodology employed in this study is predominantly qualitative, designed to provide a thorough understanding of the subject matter. Initially, the thesis will conduct a thorough review of the Communist Party of Vietnam’s viewpoint on the F ourth Industrial Revolution as well as relevant literature on OADR. Afterward, the thesis will conduct a comparative study ofOADR best practicesin the world and their implications for Vietnam. Consequently, the thesis will use thematic analysis techniques to identify key themes, suitability and limitations of the current regulations in order to address the research objectives effectively and craft feasible solutions for Vietnam 7.
Outline of the Research The thesis consists of an Introduction, Body, Conclusion and Bibliography in order of appearance. The thesis’ body comprises of three chapters: - Chapter 1: Overview of Online Alternative Dispute ResolutioninC ommercial Contexts - Chapter 2: Online Alternative Dispute Resolution Law and Enforcement in Commercial Contexts in Vietnam - Chapter 3: Recommendations to Improve Online Dispute Resolution Law and Enforcement in Commercial C ontexts in Vietnam CHAPTER 1. OVERVIEW OF ONLINE ALTERNATIVE DISPUTE RESOLUTION IN COMMERCIAL CONTEXTS 1. Overview of Alternative Disp ute Resolution in Commercial Contexts 11.
Definition and Roles of Commercial Dispute Resolution The Fourth Industrial Revolution unfolded during the dawn of the 21* century, representing a major social, political, and economic shift in the way humans experience and know the world around them.Ì In today’s dynamic business environment, enterprises are empowered to form commercial relationships with other entities to adapt, innovate, and thrive. Whether motivated by collaboration for mutual gains or competition for market leadership, interactions bebveen businesses with varied interests and expectations nevertheless harbor hidden risks of commercial disputes. As a common occurrence in the corporate world, “commercial disputes” (occasionally used interchangeably with “business disputes”) are typically defined as “conflicts, disagreements or controversies over the rights and obligations between parties in the process of carrying out commercial activities.”? This includes, but is not limited to, disputes arising from the buying or selling of goods and services, investment, commercial promotion and other activities conducted for profit-making purposes,> such as antitrust, contract, fiduciary duty, fraud, intellectual property, privacy, product liability, real estate, shareholder disputes, etc.