MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY ARB-MED-ARB MODEL: INTERNATIONAL PRACTICE AND APPLICABILITY IN VIETNAM Major: Economics Specialization: International Trade Policy and Law Code: 8310106 Full Name: Le Hong Nhung Supervisor: Assoc. Nguyen Minh Hang, Ha Noi, 2019 STATEMENT OF ORGINAL AUTHORSHIP The master thesis “Arbitration-Med-Arb model: international practice and applicability in Viet Nam”, which was completed as a result of the course named Master of International Trade policy and Law, is the author‘s sole work with the best devotion, endeavor and hard-working period given. The author guarantee that the master thesis have been carried out in conformity with the thesis writing regulation and process issued by the Foreign Trade University ACKNOWLEDGEMENT This thesis is the result of six months of researching. It is an interesting and learning experience.
In completing this thesis, the author would like to give my special thanks to many people for their significant help, contribution, and recommendations during my writing process. Foremost, special mentions and the most sincere thanks should belong to Associate Prof. Nguyen Minh Hang, my supervisor at Foreign Trade University. With her master knowledge and experiences, she helped me in writing this thesis.
I could not complete this thesis without her positive suggestions and guidance. Secondly, I would also like to give my thanks to the authors who provided me with valuable books for my thesis. My last appreciation is to the Faculty of Graduate Studies of Foreign Trade University for organizing such a meaningful master course and all the support, my family and my friends for their supports and encouragements. Hanoi, 15th January 2019 Le Hong Nhung TABLE OF CONTENTS STATEMENT OF ORGINAL AUTHORSHIP ACKNOWLEDGEMENT LIST OF FIGURES & TABLES LIST OF ABBREVIATION SUMMARY OF THESIS RESEARCH RESULT INTRODUCTION.
Scope of study .8 CHAPTER 1: THEORETICAL FRAMEWORK. Alternative dispute resolutions. Methods and forms of ADR. ADR and litigation.
Rationale of mediation. Definition and process. Stages of commercial mediation. Types of commercial mediation.
International organization’s activities for commercial mediation. Advantages and disadvantages of commercial mediation. Rationale of arbitration. Definition and process.
Stages of commercial arbitration. Forms of commercial arbitration. Benefits and drawbacks of commercial arbitration. The key differences between mediation and arbitration.
The understanding of arb-med-arb model .39 CHAPTER 2: INTERNATIONAL EXPERIENCE ON APPLYING ARB- MED-ARB MODEL: STUDY OF SINGAPORE. Singapore’s development in mediation and arbitration. Singapore’s development in mediation. Singapore’s development in arbitration.
Singapore's Arb-Med-Arb model. SIAC-SIMC Arb-Med-Arb Protocol. Procedure of Singapore’s Arb - Med - Arb model. Advantages of Arb - Med – Arb .55 CHAPTER 3: APPLICABILITY OF AMA MODEL IN VIET NAM AND RECOMMENDATIONS.
Vietnam’s approach on applying Arb – Med - Arb model. Vietnam economy review. Vietnam development in commercial mediation and arbitration. Arb-Med-Arb applicability in Viet Nam and issues.
Recommendations for Viet Nam. For associations and enterprises. Limitation of research .93 LIST OF FIGURES & TABLES Table 1.1: Comparing ADR and Court Procedure .1: Commercial mediation process .1: Circumstances to use commercial mediation .1: Commercial arbitration process .2: Comparison Between Arbitration & Mediation .1: Total Number of New Cases Handled by SIAC (2006-2016) .2: Procedure of Singapore Arb-Med-Arb model .1: Advantages of Mediation versus Arbitration .3: Advantages of Arb-Med-Arb .4: Newly established enterprises of May from 2014 – 2018 .1: Viet Nam’s Arb-Med-Arb model (expected).75 LIST OF ABBREVIATION ADR Alternative Dispute Resolution AMA Arbitration-Mediation-Arbitration ARB-MED-ARB Arbitration-Mediation-Arbitration CMC Community Mediation Centres FDI Foreign Direct Investment HKMAAL Hong Kong Mediation Accreditation Association Limited ICC International Chamber of Commerce PD Practice Direction on Mediation PDRC Primary Dispute Resolution Centre SMC Singapore Mediation Center SIAC Singapore International Arbitration Center SICC Singapore International Commercial Court SIMC Singapore International Mediation Center SIMI Singapore International Mediation Institute TRACENT Ho Chi Minh City Commercial Arbitration Center UN United Nations UNCITRAL United Nations Commission on International Trade Law VIAC Vietnam International Arbitration Center VMC Vietnam Mediation Center WB World Bank WTO World Trade Organization SUMMARY OF THESIS RESEARCH RESULT The thesis ―Arb-Med-Arb model: international practice and applicability in Vietnam‖ focuses on giving recommendation on how Vietnam can apply the experiences of developed jurisdiction around the world, which in this study are Hong Kong, US, especialy Singapore in order to improve the country‘s commercial dispute resolution context. In general, Vietnam‘s alternative dispute resolutions on commercial dispute in general is still limited.
In addition, the commercial mediation activities is scattered between arbitration center national wide without a uniform Mediation and Arbitration Act until the recent Decree No. 22/ND-CP about commercial mediation that have been issued in April 2018 and Law on commercial arbitration issued in June 2010. Despite a remarkable movement, Vietnam regulation still possessed many drawback regarding the code of conduct for mediators and arbitrators. The solutions which have been found in the study of the three developed dispute settlement hubs of the world shall help to attract the interest of Vietnam enterprises on using multitiered-clause Arbitration - Mediation - Arbitration to sellte disputes, improving the standard and conduct of mediator and arbitrator, fortify the enforceability of the mediation settled agreement and arbitration award.
Rationale An era of connection and cooperation is the way people usually call the 21st century. An outburst of a smartphone or high-tech computer for instance would imply that its parts are collected and produced in different countries. These components are then assembled into the final product and distributed over the world. That is international trade at its absolute finest.
Powering such international trade are complex technologies which have reduced the obstacles for global advertising, near-instant global communication, prompt product and services delivery. In conclusion, the term ―globalism‖ has been reconceptualized by technology. There are however features of globalism where technology cannot assist (at least not yet). Since the characteristics of international businesses, the contracts signed between the sides are generally quite sophisticated, consisting of a expansive heavily negotiated clauses regarding to each party‘s commercial requirements.
In addition to trade terms, parties‘ awareness of the need to have a well-written dispute settlement clause are increasing. Go along with the development of technology, the mechanisms for resolving dispute have not stayed immovable and have gradual developed to dedicate to globalism as much as achievable. In this field, arbitration has been found an ideal substitute to the traditional court procedures. Generally, arbitrations are supposed more efficient and flexible than courts, while the parties are offered confidentiality.
The enforcement is another enormous advantage of arbitration. In particular, an arbitration awards are more readily enforceable than judgment from foreign court. The question that people are finding the key is: are we on the top of the progression for dispute settlement clauses? Can arbitration clauses (or any substitute dispute resolution clauses) still be refined? The Singapore International Arbitration Centre (SIAC) and Singapore International Mediation Centre (SIMC) assuredly realize that fact. Altogether, the SIAC and SIMC have requested to bring 2 up a nontraditional dispute settlement model compositing the advantages of arbitration and mediation clauses, whose name is the Singapore Arb-Med-Arb Protocol (― AMA Protocol‖).
The AMA Clause allows parties to choose to settle disputes by method of arbitration to deal with their differences or by mediation before reaching arbitration. A multi-tiered clause is considered as a form of arbitration clause which combines mediation and arbitration proceedings in order to increase the chance of settling disputes between the parties via goodwill and positive discussions and to inspire constructive negotiations before a fully-completed arbitration procedure. In this thesis, the author would like to look into this new approach to settle disputes and see what advantages AMA could have for the parties. Moreover, the author also want to show the key points for question: ―Can Vietnam be able to apply this model to resolve the disputes in the future?‖.
Consequently, being a Master student majoring in International Trade Policy and Law, for the desire to devote my knowledge to the better Vietnam‘s dispute settlement, so as to keep pace with the global standards, the author selected the topic: “Arb-Med-Arb model: international practice and applicability in Vietnam”. Literature review Although commercial mediation and arbitration have long developing journey all over the world, Vietnam‘s mediation and arbitration is still inexperienced and the term is new to some extent. Especially, Arbitration - Mediation - Arbitration model has ever been researched thoroughly as well as applied in Viet Nam. As a result, the study‘s subject is quite new and there has not been any same or analogous topic up to the moment that the author has finished the paper.
The author would like to review some experiential researches from both Vietnamese and foreign sources as follows: - Nguyen Trung Nam, Trinh Nguyen (2017) – “Mediation – arbitration in commercial and construction disputes” is a research about the issues in the circumtances of construction dispute settlement under Viet Nam‘s laws and 3 point out some recommendations, composing mediation‘s applying methods, in the context of Viet Nam, combining the other ADR procedures so as to require a multi-tiered dispute settlement mechanism, or in the unique form of Arb-Med-Arb innovated in Singapore, in order to promote the efficiency and enforceability of the dispute settlement way in construction conflict via the improvements of commercial mediation, from the past to recent situation. The major acknowledgement of this paper is the information about the issues relating to construction disputes in Viet Nam. - Financier Worldwide Magazine (2018) – “Arb-med-arb in cross-border disputes”: in this study, the authors pointed out the simple idea behind multi-tiered dispute resolution is to provide several possible avenues to dispute settlement within one dispute resolution procedure. The result is a mechanism that combines various dispute resolution methods, such as mediation and arbitration, in different ways.
In addition, the researcher also stated some advantages and limitations of the AMA Protocol. - Bryan Cave Leighton Paisner team (2015) – “Singapore’s new “Arb- Med-Arb” protocol: a positive development?” is a sientific article that study how the SIMC - SIAC protocol works and consider the benefits and downsides of attaching one of Singapore‘s newest dispute settlement methods to commercial contracts. - Anindya Basarkod and Dr. Markus Altenkirch (2018) – “Arb-Med-Arb: what is it and how can it help the parties to solve their disputes efficiently?” is a paper looking into Arbitration - Mediation - Arbitration as a new approach to resolve disputes and show what advantages Arbitration - Mediation - Arbitration could have for the conflict sides.
- Daniel Chong, Sharon Lin, (2018) - “Arb-Med-Arb: Connecting the Dots between Arbitration and Mediation”: in this study, the authors pointed out some key aspects of ―Arb-Med-Arb‖, the differences between arbitration and mediation. In addition, the reason why people should use 4 Arb-Med-Arb to solve the dispute and a sample of Arb-Med-Arb clause are also mentioned in this research. My review will not explore all aspects of disputes resolution but focus on the which main points have been mentioned in the above articles or studies. Most of the above research define the Arb-Med-Arb model and show some main advantages but does not mention the method used to apply AMA in Asian country such as Viet Nam.
Although the study named “Mediation – arbitration in commercial and construction disputes”by Nguyen Trung Nam, Trinh Nguyen (2017) showed the issues in the circumtances of construction dispute settlement under Viet Nam‘s laws and point out some recommendations, the definition, characteristics and important advantages of Arb-Med-Arb are not mentioned here. In short, up to now, there has not been any comprehensive study researched on all-sided Arb-Med-Arb model and the method that used to apply this multi-tiered dispute settlement mechanism in Viet Nam. My contribution will highlight the advantages of this dispute resolution method in general (not focus on any specific field) and answer the question: ―How can we apply Arb-Med-Arb in Viet Nam?‖. Research questions There are some key questions of this study including: ―What is Arb – Med - Arb protocol?‖, ―What are the countries applied this clause in the world?