Commercial arbitration and related legal issues

August 14, 2024

1. Common legal issues in commercial arbitration

When the Commercial Arbitration Law 2010 was born and implemented, it can be seen that many businesses have chosen this method to resolve disputes because of the many advantages that this method brings. However, after many years of practical application, the 2010 Commercial Arbitration Law cannot keep up with the progress of Vietnam’s economic development and international integration. Therefore, there are still many legal issues that are still not clearly regulated, making the application of the law in practice more difficult. This article will provide an overview of the legal issues facing the 2010 Commercial Arbitration Law.

First, settlement authority

In Article 2 of the 2010 Commercial Center Law, there are regulations on the arbitration’s authority to resolve disputes, which has caused debate: How are disputes arising from “commercial activities” understood? Many viewpoints approach the concept of “commercial activities” according to the provisions of the 2005 Commercial Law.Commercial activities include activities aimed at making a profit, including buying and selling goods, providing services, investing, promoting trade and other activities aimed at making a profit.”… This understanding is very reasonable, but this concept can only be understood within the framework of the 2005 Commercial Law.

However, on this issue, there are still many different views and understandings and no consensus has been reached. The first understanding is that in a legal relationship, a dispute only requires one party to have commercial activities and the dispute occurs in any field, not just the commercial field. The second understanding is that only one party needs to have commercial activities and the dispute must arise from commercial activities – profitable activities. But in reality, applying the concept of “commercial activities” under the 2010 Law on Commercial Centers may be difficult due to:

Diversity of disputes: Disputes can arise from many different types of contracts and transactions, which are not always clearly commercial.
Conflicts between legal provisions: There may be conflicts between the provisions of the 2010 Commercial Center Law and the provisions of other laws (such as the 2005 Commercial Law) on determining the jurisdiction of the arbitrator.

Second, in principle, dispute resolution is not public

Although Vietnamese law recognizes the non-public nature of arbitration to resolve disputes, this recognition is still incomplete. Many provisions of the “Commercial Arbitration Law” recognize the confidentiality and non-publicity of arbitration proceedings. For example, Article 4 of the “Commercial Arbitration Law” stipulates: “Dispute resolution by Arbitration shall be conducted privately, unless otherwise agreed by the parties.” Or Article 55, Clause 1 of this Law stipulates: “Dispute resolution meetings are conducted privately, unless otherwise agreed by the parties.”. The law only focuses on non-public records in the parties’ dispute resolution meetings, but there are no regulations on information security during the document research process or even at the end of the case.

Clause 5, Article 21 of the Law on Commercial Procedures also only stipulates the obligations of arbitrators in general: Arbitrators have the obligation to “Keep confidential the content of the dispute that they resolve, except in cases where information must be provided to the public.” competent state agency according to the provisions of law. This regulation is quite general and does not clearly state the level and scope of confidentiality. This can lead to misunderstanding or inconsistent application between arbitrators and participating parties. Compared with international regulations, regulations on confidentiality in international arbitration are often more detailed, clearly stipulating the scope of confidentiality and exceptions. For example, the Arbitration Rules of the International Chamber of Commerce (ICC) or the Singapore International Arbitration Center (SIAC) both have detailed provisions on confidentiality.

2. How to resolve legal issues

The debates on this issue reflect the diversity in approaches and application of the law, and a unified resolution will help enhance the efficiency and transparency of the commercial arbitration process in Vietnam. . To solve these problems, we need to take appropriate measures.

First, it is necessary to specifically stipulate in the Commercial Arbitration Law the concept of “commercial activities”, “Disputes arising between parties in which at least one party has commercial activities.” for a unified understanding. Accordingly, the arbitration law needs to further expand the authority to resolve disputes by arbitration, by excluding and listing types of disputes that do not fall under the jurisdiction of arbitration.

Second, it is necessary to supplement regulations to ensure the confidentiality of dispute information as well as information related to the parties during the entire dispute resolution process at arbitration, not simply at the hearing. dispute resolution meeting. At the same time, add regulations on the information security obligations of people involved in the dispute resolution (plaintiffs, defendants, lawyers of the parties, witnesses, people with related rights and obligations). ). The law also needs to provide direction for the parties to agree on the scope of information that needs to be kept confidential. In cases where the parties do not have an agreement, the law should also recognize the “minimum” level of confidentiality required during the dispute resolution process in commercial arbitration; information about the parties involved in the dispute; content of dispute; disputed value; The evidence mentioned in the dispute…

3. The role of lawyers in commercial arbitration

Lawyers play an important role in the commercial arbitration process, supporting parties involved in disputes in many different aspects. The dispute resolution process by arbitration is extremely strict. Therefore, without specific advice from a lawyer, businesses will likely be at a disadvantage:

Lawyers ensure the legitimate rights and interests of clients in commercial disputes at Arbitration and minimize risks and liabilities in disputes.
Lawyers bring the most optimal solutions to businesses when participating in resolving commercial business disputes.
Helps you understand the legal regulations and proceedings at Arbitration.
Lawyers evaluate legal risks related to lawsuits at Arbitration, advise and propose dispute resolution options for Clients to consider and choose to ensure maximum rights and benefits for clients. .
Participate effectively, fully, and at the right time in conducting investigative activities to collect evidence and documents as a basis for resolving business and commercial disputes.
Using his litigation skills, the lawyer represents clients in arbitration sessions, providing strong and sharp arguments to protect the client’s claims and interests.
Handle complex legal procedures professionally.

The role of lawyers in commercial arbitration is not limited to representing clients but also includes providing strategic advice, preparing and managing the process, as well as assisting with implementation and resolution of issues. legal issues after the arbitration decision. This helps ensure that disputes are resolved fairly, efficiently and properly.

4. How to resolve disputes using Bigboss International Commercial Arbitration Center

To resolve disputes by commercial arbitration at BBIAC. Customers can write in the contract one of the following two contents:

4.1. Model Arbitration Clause

“Any dispute arising out of or related to this contract shall be resolved by arbitration at the BIGBOSS International Commercial Arbitration Center (BBIAC) in accordance with its Arbitration Rules.”

In addition, the parties may add:

(a) the number of arbitrators is [one or three].

(b) the place of arbitration is [city and/or country].

(d) the arbitration language is [ ].** Note: *

Only applicable to disputes with foreign elements **

Only applies to disputes with foreign elements or disputes in which at least one party is a foreign-invested enterprise.

4.2. The Model Arbitration Clause applies to summary proceedings

“Any dispute arising out of or in connection with this contract shall be resolved by arbitration at the BIGBOSS International Commercial Arbitration Center (BBIAC) in accordance with its Rules of Arbitration. The parties agree that the arbitration proceedings will be conducted in accordance with the Summary Procedures set out in Article 37 of the BBIAC Arbitration Rules.”

In addition, the parties may add:

(a) the place of arbitration is [city and/or country].

(b) the law applicable to the contract is [ ].*

Note:

* Only applies to disputes with foreign elements

** Only applies to disputes with foreign elements or disputes in which at least one party is a foreign-invested enterprise.