MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THESIS ONLINE ARBITRATION: INTERNATIONAL EXPERIENCES AND LESSONS FOR VIETNAM Major: International Trade Policy and Law NGUYEN BAO HOA Ha Noi - 2020 Luan van MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THESIS ONLINE ARBITRATION: INTERNATIONAL EXPERIENCES AND LESSONS FOR VIETNAM Major: International Trade Policy and Law Code: 1706060005 Student: Nguyen Bao Hoa SUPERVISOR: Assoc Prof. Nguyen Minh Hang Ha Noi - 2020 Luan van i DECLARATION I confirm that that this Master Thesis has been written solely by the undersigned and contains the work of no other person or people except where explicitly identified to the contrary. I also state that said Master thesis has not been submitted elsewhere for the fulfillment of any other qualification. It was written with the thorough guidance of my supervisor - Assoc Prof.
Nguyen Minh Hang Hanoi, …. 18th 2020 Author Nguyen Bao Hoa Luan van ii ACKNOWLEDGEMENT The dissertation has been completed with the great guidance of Acc Prof. Nguyen Minh Hang I would like to express my sincere thanks for her patience and massive help with reading the whole of the thesis and making valuable comments for my research. By this occasion, I am much grateful to the Department of Graduate Studies and Foreign Trade University - who have always create most favorable conditions for MITPL6 students in completing our study.
Thank you so much for their generosity and I owe a debt of gratitude to all helpers. Luan van iii ABSTRACT Alternative Dispute Resolutions are mechanisms designed to solve disputes outside the scope of traditional jurisdiction. New technologies may be incorporated to ADRs in order to facilitate the procedure and make it more efficient and less expensive manner. In this thesis I will metion about the specific case of arbitration procedures that are conducted exclusively through electronic means of communication.
Online arbitration is an ideal dispute resolution mechanism to solve disputes arising from B2B transactions for various reasons, among others, because it allows parties to select a specialist they both trust to solve the controversy with an award that is binding for both parties, but that respect the minimum necessary formalities of the procedure. Additionally, the use of electronic means of communication allows the procedure to be conducted in a faster pace, from any location, and allowing parties to get access to the documents of the procedure at any place at any time. There is currently no legal framework designed specifically for the conduction of online arbitration procedures; therefore, the rules for traditional commercial arbitration should be used. Even though the rules of traditional arbitration allow the existence of the online version, due to its special characteristics, online arbitration requires a set of rules designed especially for it.
Online arbitration requires a legal framework that regulates the use of electronic means of communication in the procedure, the way in which notifications shall be performed and acknowledgement of receipt granted. The legal framework should also prescrible the obligation of the parties to take the necessary measures to ensure that the security and confidentiality of all the information exchanged in the procedure. Finally, parties should be able to select the extra judicial mechanisms that they deem convenient for enforcing the award in an easy and fast manner. Luan van iv TABLE OF CONTENTS DECLARATION.
iii TABLE OF CONTENTS. iv LIST OF ABBREVIATIONS.1 CHAPTER 1: OVERVIEW OF ARBITRATION AND ONLINE ARBITRATION. Arbitration and its advantages. Advantages of Arbitration in comparison with traditional jurisdiction.
Online dispute resolution. Concept of online dispute resolution. Characteristics of online dispute resolution. Concept of online arbitration.
Structure and legal basis of electronic arbitration. Advantages and disadvantages of online arbitration. Block-chain regulation and Machine Made Justice in Online Arbitration. Applicable law to online arbitration .25 CHAPTER 2: APPLICATION OF ONLINE ARBITRATION IN THE WORLD AND IN VIETNAM.
International experience of online arbitration in the world. Experience of online arbitration in EU. Experience of online arbitration in Iran. Experience of online arbitration in US.
Experience of online arbitration in Singapore. Experience of online arbitration in Indonesia. Online arbitration in Vietnam. Legal provisions on online dispute resolution and online arbitration 43 2.
The application of online arbitration in Vietnam. Opportunities of applying online arbitration in Vietnam. Difficulties when applying online arbitration in Vietnam .59 CHAPTER 3: RECOMMENDATIONS AND SUGGESTIONS. Recommendations for the state of Vietnam.
Recommendationsfor e-commerce businesses. Recommendations for online arbitration providers. Recommendations for IT and telecommunications infrastructure vendors. Recommendations for consumers.
General trend around the World after pandemic .1 Trends after Corona Virus Pandemic .2 Legal framework for digital transformation for legal proceedings in Vietnam .81 Luan van vi LIST OF ABBREVIATIONS No Acronym Explanation 1 SIAC Singapore International Arbitration Center 2 LCC London Commercial Court 3 DIFCC The Courts of the Dubai International Financial Centre 4 UAE United Arab Emirates 5 CISG United Nations Convention on Contracts forthe International Sale of Goods (Vienna, 1980) 6 LCIA The London Court of International Arbitration 7 ODR Online Dispute Resolution 8 ADR Alternative Dispute Resolution 9 QMUL Queen Mary University of London 10 SIFoCC Standing International Forum of Commercial Courts 11 VIAC Vietnam International Arbitration Center 12 VMC Vietnam Mediation Center 13 UNCITRAL The United Nations Commission on International Trade Law UNCITRAL UNCITRAL Model Law on International 14 Model Law Commercial Arbitration (1985), with amendments as adopted in 2006 15 IT Information Technology 16 AI Artificial Intelligence 17 ¶ Paragraph Luan van 1 INTRODUCTION 1. Rationale International trade continues to increase in online volume, resulting in a sharp increase in disputes arising from such online commerce. Accordingly, arbitration is the preferred method for resolving international trade disputes, in which online arbitration is the standard of alternative dispute resolution in the near future, especially in the field of e-commerce. When the court could not afford to resolve the dispute, online arbitration has become a legal method of dispute resolution everywhere in the world with different levels of scope and application.
For online arbitration to be accepted, it is necessary to determine which basic rules will govern the choice of law, jurisdiction and enforcement of the award. Online arbitration can inherit the characteristics of traditional arbitration, can also shorten the time of making judgments, save time and cost for all parties, apply modern technology to support aid dispute process. In addition, online arbitration is particularly suitable for e-commerce, when the number of disputes arising is becoming more and more complicated in large numbers along with the rapid growth of payment and e-commerce. The main content of the thesis will review the research and development of online arbitration in the world, study and refer to the experience of developing online arbitration of developed countries in the world and developing countries.
Like Vietnam, through which, the writer made recommendations to effectively apply online arbitration in Vietnam. Litterature review There are several researches on ODR in general and online arbitration in particular. Frank (1997) in the study of Online Systems in Alternative Dispute Resolution Luan van 2 found that the problem with online arbitration is difficult in selecting the appropriate law to apply to the dispute. Arbitrators may only need to apply applicable legal rules to determine the law governing the value of the dispute, but it is often unclear what choice of laws rules will govern a particular dispute when Legal systems cannot be clearly defined when applied in Cyberspace.
Frank (1997) also argues that contractual obligations are the only effective means of contracting parties with online courts. Therefore, the incorporation of online terms must be included in the user registration agreements. Accordingly, the use of online systems to resolve binding disputes will be less restrictive. Eddie (2000) argues that in the context of national legal systems related to censorship technology, there have been calls for adjustment of international commercial arbitration to consider the issue of online arbitration.
Accordingly, the parties to the Internet dispute will be comfortable, resolving their disputes through the same means that they are doing business. Online arbitration also provides an incentive for the parties to agree on a dispute settlement system and the parties will be able to bypass formal legal institutions and maximize government intervention. Eddie also discusses a number of special and very important issues that will need to be addressed to ensure the proper and legal functioning of online arbitration including: time frames applicable to online arbitration; rights of the parties to the dispute regarding access to the material; requests concerning communication between the parties and the arbitrator; procedure to cater for authenticated or authoritative situations; and instructions on the appearance and enforcement of online arbitration.Meanwhile, Llewellyn et al (2002) found that large costs, jurisdiction and transnational lawsuits were not feasible to perform in court,not provide an equal playing field for online arbitration in disputes between merchants although at the time this system may not exist or be inadequate for disputes between consumers and traders. Luan van 3 Eddie's study (2000) also suggested a mechanism for online arbitration to work in practice, such as The World Intellectual Property Organization (WIPO) to resolve intellectual property disputes.
Accordingly, online arbitration begins by accessing procedures through the website and then electronically submitting a request at the WIPO Arbitration Distribution Center. All claims about claims, facts and legal arguments, documentary evidence need to be submitted electronically and online. The arbitration center determines the location of the arbitrator and the language used. After the end of the required requirements, a final award is given and no appeal is given.
Accordingly, the steps mentioned above for the strict time frames are specified in the WIPO rules.The parties contact via digital means and send requests by completing the corresponding electronic and online forms via secure channels, and receive automatic notifications, payment of electronic fees, databases of document storage and storage, and secure channels are all via Internet-based systems. Eddie (2000) also provides other examples of an online Arbitration that clearly shows that organizations have realized the potential advantages and predicted the need to resolve disputes by online arbitration such as Cybertribunal is a project of the Faculty of Law in University.Montreal; The Office of Online Inspection is provided by the Massachusetts Center for Information Technology and Dispute Resolution at the University of Massachusetts providing mediation services primarily to other parties; The Virtual Judge Project is a joint venture of the American Arbitration Association and Villanova LawSchool related to trademark infringement, fraud disputes. Tiffany (2000) in her study confirmed that the best regulation of trade on the Internet can be done by combining current international law while drafting new flexible laws to supplement and clarifyapplicable laws. And the same combination can be applied to online arbitration to create some law certainty.In order to conduct Luan van 4 arbitration online, Tiffany (2000) listed six arbitration tribunals that the arbitrator can submit including the American Arbitration Association (AAA); International Chamber of Commerce (ICC); London Court of International Arbitration (LCIA); Stockholm Chamber of Commerce (SCC); International Center for Settlement of Investment Disputes (ICSID); and the United Nations Conference on International Trade Law (UNCITRAL).
Tiffany et al (2000) also argued that the statutory arbitration rules of most countries will maintain the decision of the judgment officer to be binding, except for the discovery of fraud or arbitration such as evidence of corruption among arbitrators; the referee has exceeded their powers.For online arbitrators, due to their independent geography and number of participants, the parties involved may include defendants, petitioner and arbitrators and may be located in many other geographical locations (usually 6 or more). Up to six national courts may have relevant jurisdiction for review purposes. Accordingly, the location of the arbitrator is determined by the geographical location of the server. If the parties disagree with the position of the arbitrator, the arbitral tribunal may determine the appropriate location.