MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY OPEN UNIVERSITY -------- ∞0∞-------- LE THI HANH PHUOC LEGAL FRAMEWORK FOR COMMERCIAL CONCILIATION IN VIETNAM - FROM THEORY TO PRACTICE MASTER’S THESIS IN BUSINESS LAW HO CHI MINH CITY, 2023 MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY OPEN UNIVERSITY -------- ∞0∞-------- LE THI HANH PHUOC LEGAL FRAMEWORK FOR COMMERCIAL CONCILIATION IN VIETNAM - FROM THEORY TO PRACTICE Major: BUSINESS LAW Major code: 8 38 01 07 MASTER’S THESIS IN BUSINESS LAW Supervisor: Associate Professor -DR. DU NGOC BICH HO CHI MINH CITY, 2023 TRƯỜNG ĐẠI HỌC MỞ CỘNG HÒA XÃ HỘI CHỦ NGHĨA VIỆT NAM THÀNH PHỐ HỒ CHÍ MINH Độc lập – Tự do – Hạnh phúc KHOA ĐÀO TẠO SAU ĐẠI HỌC GIẤY XÁC NHẬN Tôi tên là: LÊ THỊ HẠNH PHƯỚC Ngày sinh: 20/03/1985 Nơi sinh: Bình Định Chuyên ngành: Luật kinh tế Mã học viên: 1883801070037 Tôi đồng ý cung cấp toàn văn thông tin luận văn tốt nghiệp hợp lệ về bản quyền cho Thư viện trường đại học Mở Thành phố Hồ Chí Minh. Thư viện trường đại học Mở Thành phố Hồ Chí Minh sẽ kết nối toàn văn thông tin luận văn tốt nghiệp vào hệ thống thông tin khoa học của Sở Khoa học và Công nghệ Thành phố Hồ Chí Minh. Ký tên LÊ THỊ HẠNH PHƯỚC CỘNG HÒA XÃ HỘI CHỦ NGHĨA VIỆT NAM Độc lập - Tự do - Hạnh phúc Ý KIÉN CHO PHÉP BẢO VỆ LUẬN VĂN THẠC sĩ CỦA GIẢNG VIÊN HƯỚNG DẪN Giảng viên hướng dẫn: Phó Giáo sư - Tiến sĩ Dư Ngọc Bích Học viên thực hiện: Lê Thị Hạnh Phước Lớp: MLAW018A Ngày sinh: 20/03/1985 Nơi sinh: Bồng Sơn, Hoài Nhơn, Bình Định Tên đề tài: “Legal framework for commercial conciliation in Vietnam - From theory to practice”.
Ý kiến của giáo viên hướng dẫn về việc cho phép học viên: Lê Thị Hạnh Phước được bảo vệ luận văn trước Hội đồng:. Thành phố Hồ Chí Minh, ngày. C tháng 03 năm 2023 Người nhận xét Dư Ngọc Bích i DECLARATION I undertake that the thesis “Legal framework for commercial conciliation in Vietnam - From theory to practice” is my own scientific work. Except the reference materials are quoted in this thesis, I undertake that whole part or small parts of this thesis has not ever been announced or used to get the degree at another university.
There are not any products/ studies of other authors to be used in this thesis without quoting according to the regulations. This thesis has never been submitted to get any degree at any university or other training institutions. Ho Chi Minh City, 2023 Author Le Thi Hanh Phuoc ii ACKNOWLEDGEMENT The completion of thesis “Legal framework for commercial conciliation in Vietnam - From theory to practice” has marked the author’s process of perseverance and continuous efforts. First of all, I would like to express my endless thanks and gratefulness/ sincere thanks to the School Administrator, Faculty of Law, Graduate School and all the lecturers and staffs of Ho Chi Minh City Open University has created all favorable conditions during the process of studying, researching and completing my thesis.
In particular, I would like to express my deepest gratitude to Associate Professor - Dr. Du Ngoc Bich that wholeheartedly helped, guided and created all the best conditions for me in the process of researching this thesis. Associate Professor – Dr. Du Ngoc Bich has given many valuable comments to help me complete this thesis in the best way.
This will be extremely valuable knowledge for my future career and life. I would also like to express my sincere gratitude to my family, friends and colleagues who have always supported, helped and encouraged me during the study and completion of this thesis. Finally, I would like to thank the lecturers in the Thesis Evaluation Committee for giving me the valuable comments to improve this thesis. The author wishes all lectures good health, happiness and success in the noble teaching career.
The author also wishes the Ho Chi Minh City Open University more and more development to train and teach more students in the future. iii ABSTRACT The thesis “Legal framework for commercial conciliation in Vietnam - From theory to practice” is a research topic on commercial conciliation. The thesis focuses on researching theoretical issues and legal provisions on commercial conciliation in Decree No. 22/2017-ND-CP such as: Conditions for dispute resolution to commercial conciliation; Commercial conciliation procedures; Regulations and recognition of successful conciliation results; Regulations on commercial conciliators and commercial conciliation organizations.
Besides, the thesis also mentions the Singapore Mediation Act with the main highlights including regulations on the implementation of the successful mediation agreement; confidentiality of information about the mediation process; regulations on the continuity of the mediation proceedings and foreign mediator. From there, there is an analysis and comparison of the provisions of Decree No. 22/2017-ND- CP with the UNCITRAL Model Law and the Singapore Mediation Act to compare the similarities and differences with international and regional countries on commercial conciliation. Based on the above comparison results, the thesis lists some practical issues of the laws on commercial conciliation in Vietnam and proposes solutions to improve the laws on commercial conciliation such as studying, developing and promulgating the Law on Commercial Conciliation; promulgating a code of ethics and professional conduct of Vietnamese commercial conciliators; recognizing the successful conciliation results; supplementing regulations on prioritizing the use of commercial conciliation method if the parties already have a conciliation agreement; issuing more detailed regulations on confidentiality in commercial conciliation.
On that basis, in order to develop commercial conciliation method to be more effective in the coming time and to become the preferred dispute resolution method of enterprises when disputes arise. iv TABLE OF CONTENTS DECLARATION. iii TABLE OF CONTENTS. iv LIST OF ACRONYMS.
Rationales for the study. Objectives of the Study. Questions of the Study. Subject and Scope of the study.
Methods of the Study. Scientific and practical significance of the thesis. The expected structure of the thesis. THEORETICAL GROUNDS OF COMMERCIAL CONCILIATION.
Definition and legal characteristics of commercial conciliation. Definition of dispute and commercial dispute. Definition of commercial conciliation. Legal characteristics of commercial conciliation.
Classification of commercial conciliation .1 Base on the methods of commercial conciliation .2 Base on the forms of commercial conciliation. The advantages of commercial conciliation .4 The process of forming the commercial conciliation laws in Vietnam. 24 v CONCLUSION OF CHAPTER 1. LEGAL FRAMEWORK FOR COMMERCIAL CONCILIATION IN VIETNAM.
Provisions of the laws on commercial conciliator .1 Provisions on condition for practicing commercial conciliator .2 Provisions for rights and obligations of commercial conciliator .3 The prohibited acts for commercial conciliator. Provisions of the laws on commercial conciliation organizations .1 Provisions for the form of commercial conciliation organizations .2 Provisions for the rights and obligations to commercial conciliation organization. Order and procedures for commercial conciliation .2 Conciliation order and procedures .3 Termination of conciliation proceedings .4 Recognition of successful conciliation results. 43 CONCLUSION OF CHAPTER 2.
COMPARISON AMONG UNCITRAL MODEL LAW, SINGAPORE LAW AND VIETNAMESE LAW ON COMMERCIAL CONCILIATION – PROPOSALS FOR THE LAW OF VIETNAM. Comparison between Decree No. 22/2017/ND-CP and UNCITRAL Model Law on International Commercial Conciliation .1 Overview of UNCITRAL Model Law on International Commercial Conciliation .2 Similarity and difference between Decree No. 22/2017/ND-CP and UNCITRAL Model Law on International Commercial Conciliation.
Comparison between the Singaporean law and Vietnamese law on commercial conciliation.1 The scope of application of the Mediation Act .2 Stay of legal proceedings pending mediation .3 The confidentiality of mediation communications .4 Recording of mediated settlement agreement as order of court .5 Foreign counsels and mediators .6 Evaluation of Singapore's commercial mediation model and its applicability in improving Vietnamese laws. Proposals for the law of Vietnam .1 Practical issues of the laws on commercial conciliation in Vietnam .2 Proposals for improving the laws on commercial conciliation in Vietnam .1 The necessary for developing and improving the laws on commercial conciliation in Vietnam .2 Some specific solutions to improving the laws on commercial conciliation in Vietnam. 63 CONCLUSION OF CHAPTER 3. 75 vii LIST OF ACRONYMS ASEAN Association of Southeast Asia Nations Decree No.
22/2017/ND-CP of Government dated 22/2017/ND-CP 24/02/2017 on commercial conciliation Resolution No.49- Politburo's Resolution No. 49-NQ/TW dated June NQ/TW 2nd, 2005 on strategy of Justice reform to 2020: "Encouraged the resolution of a number of disputes through the negotiation, conciliation and arbitration. The court will support by the decisions to recognize the settlement”. SMC Singapore Mediation Act UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model UNCITRAL Model Law on International Law Commercial Conciliation (2002, amending and supplementing in 2018) VMC Vietnam Mediation Center VIAC Vietnam International Arbitration Center WTO World Trade Organization 1 INTRODUCTION 1.
Rationales for the study Currently, Vietnam's international economic integration process has been promoted and taken to a new level by joining the economic and trade organizations of the region and around the world. Exchanges and cooperation among countries are also developing strongly. Therefore, Vietnam is making efforts to create a dynamic, modern economy and especially enhance the legal system to ensure compatibility with this integration and development. One of the policies that the State encourages and promotes now is the use of alternative dispute resolution methods which avoid suing in order to reduce the load on the court system as well as diversify methods of resolving commercial disputes which were clearly specified on the Politburo's Resolution No.
49-NQ/TW dated June 2nd, 2005 on strategy of Justice reform to 2020: "Encouraged the resolution of a number of disputes through the negotiation, conciliation and arbitration. The court will support by the decisions to recognize the settlement”1. Regarding the method of commercial conciliation, the Commercial Law in 1997 and the Commercial Law in 2005 both stipulated the priority to using conciliation to resolve commercial disputes. However, the practice of commercial dispute settlement showing that these regulations are only formalities, thus frustrating the expectations of foreign investors.
So, the promulgation of legal documents regulating the legal contents of commercial conciliation is very necessary. The Decree No. 22/2017/ND-CP dated February 24th, 2017 on commercial conciliation is a step of compliance with commitment from international agreements to expand the conciliation services that has been signed with the WTO on allowing 1 Nghị quyết số 49-NQ/TW của Bộ Chính trị ngày 2/6/2005 về Chiến lược cải cách tư pháp đến năm 2020: “Khuyến khích việc giải quyết một số tranh chấp thông qua thương lượng, hòa giải, trọng tài; Tòa án hỗ trợ bằng quyết định công nhận việc giải quyết đó”. 2 the commercial presence of conciliation services as well as arbitration for commercial disputes between businesses2.
The development of a legal framework for commercial conciliation activities also contributes to make Vietnam's legal system consistent with international laws. This Decree No. 22/2017/ND-CP also shows the Government’s policies of encouraging parties to use commercial conciliation to resolve commercial disputes, especially in the circumstances that Vietnam has just signed the European - Vietnam Free Trade Agreement (EVFTA). Therefore, the continuation of study and further improvement to the law on commercial conciliation to resolve current commercial disputes needs to be addressed in the case of Vietnam.
Due to aforementioned reasons, the author has chosen the topic "Legal framework for commercial conciliation in Vietnam – From theory to practice " to complete the Master's thesis. Domestic studies In Vietnam, the law on commercial conciliation has been mentioned and has attracted a lot of research interest in many scientific works and legal journals, typical as: 2. Before promulgating the Decree No. 22/2017/ND-CP Duong Dang Hue (chairman) (1998), Current methods of resolving economic disputes in our country and the trend of selection, Ministerial-level scientific topic, Institute of Legal Sciences, code no.