Challenges in applying commercial mediation in businesses.
- Some limitations in Decree 22/2017/ND-CP regarding commercial mediation:
– Standards and qualifications for mediators: The current standard for “having mediation skills” is qualitative and lacks quantitative measures, making assessment difficult. It is necessary to add requirements for completing training and refresher programs and fulfilling annual knowledge update obligations, similar to auxiliary judicial positions such as lawyers or notaries.
– Establish a Commercial Mediation Center: The current decree does not permit the establishment of commercial mediation centers, limiting the number of organizations capable of carrying out such activities. Allowing the establishment of such centers would help reduce costs, save time, ensure information security, and maintain business relationships.
– Number of mediators: The decree does not specify the number of mediators if the parties do not agree. A provision should be added stipulating that one mediator will be assigned by default when the parties do not have a specific agreement.
– Scope of application: Some disputes, such as labor and land disputes, were previously restricted. According to Land Law 2024The parties may attempt mediation under commercial law before resolving the dispute at a state agency. The decree needs to expand its scope, allowing commercial mediators to resolve non-commercial disputes when invited.
– Information security: The decree stipulates the confidentiality of information but does not prevent the use of mediation information as evidence in court when mediation fails. Regulations restricting the provision or reference of information in litigation need to be added.
– Statute of limitations for dispute resolution: The mediation period is not included in the statute of limitations for filing a lawsuit, leading to difficulties if mediation fails. A clear regulation is needed to clarify that the mediation period should not be included in the statute of limitations.
– Binding clauses in the settlement agreement: The decree does not require the parties to conduct mediation if they have already agreed to it. It is necessary to stipulate that the court or arbitration tribunal shall refuse to hear the case if the parties have not conducted mediation as agreed.
2. Some limitations inCommercial Arbitration Law 2010 regarding the dispute resolution mechanism:
– Jurisdiction for dispute resolution: Commercial Arbitration Law 2010. The provisions outlining the jurisdiction of arbitrators are unclear and conflict with the courts, particularly in areas such as land disputes or void transactions. Article 2 needs to be amended to expand and clarify the scope of arbitrators’ jurisdiction.
– The parties in dispute: Clause 3 of Article 3 only includes the plaintiff and the defendant, excluding parties with related rights and obligations. This creates difficulties in disputes involving multiple parties, such as credit and guarantee contracts. It needs to be amended to include parties with related rights and obligations.
– Refereeing format: The definitions of institutional arbitration and ad hoc arbitration in Article 3 do not fully reflect reality. These forms need to be more clearly defined to better suit practical situations.
– Rights and obligations of arbitrators: Clause 5 of Article 21 requires arbitrators to provide information to “competent state agencies,” but it is not specific. It is necessary to clarify which agencies are involved, such as investigative agencies, prosecutors’ offices, courts, and tax authorities, to ensure confidentiality.
– Executing the judgment: Clause 1 of Article 8 stipulates that the civil enforcement agency where the judgment was issued shall carry out the enforcement, but this is ineffective when the person obligated to comply does not reside there. It needs to be amended to specify the enforcement agency where the person obligated to comply has assets or resides.
– Statute of limitations for filing a lawsuit: Article 33 stipulates a statute of limitations of 2 years for filing an arbitration claim, which is inconsistent with…Civil Code 2015(3 years). The statute of limitations for arbitration proceedings needs to be amended to 3 years to ensure legal consistency.
– Deadline for requesting court proceedings: The five-day timeframe for requesting a court resolution when disagreeing with an arbitral decision is too short compared to international practice (30 days under UNCITRAL). This timeframe needs to be increased to align with international standards.
– Content of the arbitration award: The provision in point c, clause 1, Article 61, regarding the inclusion of the arbitrator’s “address” in the award is unnecessary. The 30-day timeframe for issuing the award is also too short for complex cases. Unnecessary requirements should be removed, and the timeframe for issuing the award should be extended.
– Annul the referee’s decision: The provision in point d, clause 2, Article 68 regarding the annulment of an arbitration award if evidence is forged is unclear; the term “fundamental principles of Vietnamese law” in point d, clause 2, Article 68 is ambiguous and easily leads to arbitrary application. The meaning of these provisions needs to be clarified to avoid unreasonable annulment of arbitration awards.
