MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THESIS ONLINE DISPUTE RESOLUTION: INTERNATIONAL APPLICATION AND LESSONS FOR VIETNAM Specialization: International Trade Policy and Law FULL NAME: NGHIEM LY TIN HANOI - 2020 MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THESIS ONLINE DISPUTE RESOLUTION: INTERNATIONAL APPLICATION AND LESSONS FOR VIETNAM Specialization: International Trade Policy and Law Code: 8310106 FULL NAME: NGHIEM LY TIN SUPERVISOR: DR. HA CONG ANH BAO HANOI - 2020 i TABLE OF CONTENT REASSURANCE. 2 LIST OF ABBREVIATIONS. 3 LIST OF FIGURES.
5 SUMMARY OF THESIS RESEARCH RESULT. Scope of research. 14 CHAPTER 1: FUNDAMENTAL FRAMEWORK. History of Online Dispute Resolution.
Online Dispute Resolution and characteristics. Methods of Online Dispute Resolution. Group of fundamental methods. Group of compound methods.
Online juries/mock trials. Advantages and Disadvantages of ODR application. Advantages of ODR. Disadvantages of ODR.
Basic conditions for ODR implementation. Awareness and trust to ODR. 40 CHAPTER 2: INTERNATIONAL APPLICATION ON ONLINE DISPUTE RESOLUTION. Application on ODR in European Union.
Legal framework of ODR in EU. Practical application in European Union. Application on ODR in North America. Legal framework of ODR in North America.
Practical application in North America. Government Initiatives in ODR. ODR Professional Organizations. Application on ODR in China.
Legal framework of ODR in China. Practical application in China. ODR and Domain Names Disputes: The ADNDRC. ODR and the CIETAC Online Dispute Resolution Center.
The HKIACODR Initiative. Evaluations and future of ODR. 65 CHAPTER 3: APPLICABILITY AND PERSPECTIVE OF ONLINE DISPUTE RESOLUTION IN VIETNAM. Statement of Online Dispute Resolution in Vietnam.
Factors for ensuring ODR application in Vietnam. The necessary of application ODR in Vietnam. Current situation of conditions to apply ODR in Vietnam. Current situation of ODR in Vietnam.
Advantages and opportunities. Disadvantages and reasons. Suggestions and solutions. 82 LIST OF REFERENCES.
83 1 REASSURANCE I hereby assure that this master thesis is exclusively made by myself and that all data and results stated in this master thesis are honest. In addition, I hereby assure that all of the supports in the process of implementation cited in the master thesis have been specified its sources. Author Nghiem Ly Tin 2 ACKNOWLEDGEMENT First and foremost, I would like to express my sincere gratitude to my supervisor, Dr. Ha Cong Anh Bao for his enthusiastic support of my graduation master thesis, with patience and knowledge.
Hardly could I complete my work without his fascinating guidance and suggestions throughout the past five months. Beside my advisor, I would like to thank all professors and lecturers in Foreign Trade University, especially lecturers in Master Program of International Trade Policy and Law (MITPL), who spent all their enthusiasm and dedication to bring knowledge to us. The result acquired in the learning process is not only necessary for me to complete my thesis, but also help me be more confident to improve my career in the outside world. My special thanks also is for my family, friends and my classmates for their encouragement and spiritual supports they gave me in the whole time of composing one of the most important and meaningful work in my life.
Hanoi, 09 July 2020 Nghiem Ly Tin 3 LIST OF ABBREVIATIONS ADNDRC The Asian Domain Name Dispute Resolution Center ADR Alternative Dispute Resolution B2B Business to Business B2C Business to Consumer C2C Consumer to consumer CAGR Compound Annual Growth Rate CIETAC Economic and Trade Arbitration Commission CNDRP CNNIC Domain Name Dispute Resolution Policy CNNIC China Internet Network Information Center Comprehensive and Progressive Agreement for Trans- CPTPP Pacific Partnership CRDP The Center for Research in Public Law DNDRC Domain Name Dispute Resolution Center ECC-NET European Consumer Centers Network E-commerce Electronic commerce EEA European Economic Area EU European Union EVFTA Vietnam Free Trade Agreement FTA Free Trade Agreements GDP Gross Domestic Product The Hong Kong Domain Name Registration Company HKDNR Limited HKIAC The Hong Kong International Arbitration Centre ICANN The Internet Corporation for Assigned Names and Numbers ICT Information & Communication Technology 4 IT Information technology KIDRC Korean Internet Address Dispute Resolution Committee The Kuala Lumpur Office operated by the Kuala Lumpur KLRCA Regional Center for Arbitration The Australia National Alternative Dispute Resolution NADRAC Advisory Council NCAIR The National Center for Automated Information Research NCTDR The National Center for Technology and Dispute Resolution OAS Organization of American States ODR Online Dispute Resolution PPP Purchasing Power Parity RCEP Regional Comprehensive Economic Partnership SDRCC The Sports Dispute Resolution Center of Canada SMEs Small and medium-sized enterprises TDRP Transfer Dispute Resolution Providers TLD Top level domain names UDRP Uniform Domain-Name Dispute-Resolution Policy UNCITRAL United Nations Commission on International Trade Law USA United States of America USD United States Dollar WTO World Trade Organization 5 LIST OF FIGURES Figure 01: The process on the ODR platform. 42 Figure 02: Complaints summited per month in two years of ODR platform implementation. 46 Figure 03: Structure of complaints under regional levels and product ranges. 47 Figure 04: Vietnamese Internet users.
67 Figure 05: Smartphone penetration rates in Vietnam. 68 Figure 06: Structure of retail market in Vietnam. 69 6 SUMMARY OF THESIS RESEARCH RESULT In the circumstance of global and regional integration, E-commerce is expanding in Vietnamese society as the major mode of purchasing. Online dispute resolution (ODR) seems to be the most suitable method to solve conflict arise from E-commercial activities and other businesses in the digital era.
However, currently the full awareness of ODR and related issues still are strange with most of parties who join ODR implementation including government, enterprises and consumers. The Master thesis with topic of “Online dispute resolution: International application and lessons for Vietnam” concentrates on analyzing and consolidating ODR definition and characteristics with practical lessons from some foreign countries with legal challenges, along with supplying recommendation on applying ODR in Vietnam situation to bring a vision and opinion of the author based on academic aspect. The recommendations and solutions found in the thesis hopefully are going to contributes a little to ODR development and growth in Vietnam. Research rationale Conflict is a growth industry (Fisher 1991, pg.
The invention of E-commerce transactions changes the essence of the social habits of business entities and individuals. E-commerce moves the traditional commercial social environment from and industrial economy where machines dominated productivity, to an information-based economy where intellectual content is the dominant source of value added and there are no geographic boundaries. In particular, it provides small and medium-sized enterprises (SMEs) with lower market entry cost and the ability or possibility to extend geographic reach to a much large market. It will undoubtedly improve economic efficiency, competitiveness and profitability (Faye.
New opportunities are always paralleled by new challenges in any form of technology, economy and society. IT brings the benefits of efficient cross-border commercial transactions but challenges the essence of the traditional laws and the knowledge and technique of traditional law makers and practitioners. Legislators, judges, lawyers and practitioners need insight into the operation of this new and rapidly expanding industry with sufficient cross-disciplinary knowledge, experience and skills. In the paper-based world, connecting factors, such as the place of domicile, the place of business and the place of performance, are used to determine jurisdiction and choice of law.
When contracts are concluded and performed by electronic means, those factors become blurred. The determination of private international law in cyberspace requires legal experts to have special knowledge about IT systems and to interpret new and existing legal concepts for the online environment. Every year, thousands of multinational companies are emerging in the world, constantly expanding sales and production internationally through the Internet. This is largely seen as the key to growing the economy and stimulating globalization.
Transactions in a global market increase the probability of trans-national disputes. Moreover, parties situated sometimes in different continents are often opposed over 8 small claims. However, when disputes arise, traditional dispute resolutions become problematic because different countries have different rules for trade and various prohibitive costs of legal action across jurisdictional boundaries. Moreover, for traditional dispute resolutions, the appropriate forum is determined by the place of business or the place of performance.
In cyberspace, the localization factor can be much less obvious as the boundless internet may be accessed from anywhere in the world. E-commerce, a new determinant of commercial transaction via cyberspace, commenced since 1980s under the simplest form as credit card, ATMs of banks, or initial electronic contracts. Nevertheless, E-commerce only developed disruptively and popularized since 1990s when the Internet was invented. As the result, the conflicts arose from E-commercial activities have increased, pressured to the national legal system and related authorities.
Courts and ADR, such as negotiation, arbitration and other combined resolutions under common procedure have not been suitable to apply for the special kind of dispute resolution. ODR was born to fulfill all the gaps mentioned. Vietnam is a land of opportunity for foreign E-commerce companies because of its young population. Under EU-VN Business Network, high Internet penetration rate (ranked 17th in the world) and climbing smartphone penetration rates.
Millennials, considers the target population of E-commerce firms, account for 30% of Vietnam’s population (approximately 30 million people). The penetration of Internet is projected to increase steadily, with the percentage of Internet users set to reach 65% in 2022 (EU-VN Business Network 2018, pg. Following its accession to the WTO in 2007, Vietnam has allowed foreign investors to establish 100% foreign-owned companies. This has attracted many foreign investors, including E-commerce retailers.
As E-commerce is expected to soon become an important part of Vietnam’s trade sector, currently, big names such as Lazada, Shopee, Adayroi, Tiki and more recently, Amazon, market have seized the opportunity and entered Vietnam. In 2017, the Southeast Asian E-commerce market was growing at 35% per year, 2.5 times faster than in Japan. Vietnam ranks 9 4th for online shopping in the Asia Pacific region and is expected to continue booming in the coming years, with sales estimated to reach EUR 8. USD 9 billion) in 2020.
Being not beyond the global rule of development, to match the the trend of international integration, Vietnam issued Law on E-transaction in 2005 and Information Technology in 2006, with by-law documents to govern E-commerce. However, until now, ODR as one of the most important to motivate E-commerce is not governed by law in clearly and specifically to settle disputes with E-commerce origin and affect to the online transaction efficiency. By the reason, the topic of “Online dispute resolution: International application and lessons for Vietnam” is selected. The thesis is will be necessary for all of policy makers, modern enterprises and online consumer to pave the way, actualize and develop ODR in Vietnam.
Literature review Although Online Dispute Resolution has about 30 years-developing journey with the growth of Internet, ODR in Vietnam is still inexperienced and the term is new with most of people in both of academia and business, although there are quite many science reports republished in Vietnam mentioned this topic in recent years. The author would like to review some typical researches from both Vietnamese and foreign sources as following: - E.Katsh (2001) – “Online dispute resolution as a solution to cross-border E-Disputes” – the author starts with describing ADR in general and the major of ADR, then expressing the forms of ODR statement in US and Canada, especially mediation.