1. Dispute determination and arbitration agreement
1.1. Determine the dispute
Determining disputes in arbitration is an important step to resolve conflicts between parties effectively and fairly. Here are the main steps to determine a dispute in arbitration:
Identify relevant parties
First, it is necessary to clearly identify who are the parties involved in the dispute. These can be individuals, businesses or other organizations involved in the dispute. The legal relationship between the parties also needs to be clarified to determine the rights and obligations of each party.
Understand the nature of the dispute
To effectively resolve disputes, it is necessary to clearly understand the nature and scope of the issue causing the conflict. This includes:
– Specific content of the dispute: Clearly identify the legal rights and obligations that the parties believe have been violated. For example, in a commercial contract, the dispute may relate to failure to comply with delivery terms, product quality, or payment.
– Cause of the dispute: Consider the factors leading to the dispute, such as breach of contract, misunderstanding of contract terms, or external factors affecting performance contract.
Consider the legal basis
It is necessary to consider the legal provisions and contractual agreements relevant to the dispute. This helps determine whether a party has breached its legal commitments and the basis for requesting dispute resolution.
– Contracts and related agreements: Carefully read the terms of the contract or signed agreement to determine the rights and obligations of each party. These terms typically include rights and obligations regarding contract performance, timing, payment, warranties, and dispute resolution provisions.
– Legal regulations: Review legal regulations related to the disputed area. This may include commercial law, civil law, or industry-specific regulations.
Collect evidence
Collecting evidence related to the dispute is an important step to prove each side’s point of view. Evidence may include:
– Contract documents: Original contract, appendices, and related additional documents.
– Transactions and correspondence: Emails, letters, meeting minutes, and other communication documents between the parties.
– Financial reports and documents: Financial reports, invoices, payment receipts, and other accounting documents.
– Expert reports: For technical or complex disputes, reports or opinions from experts in the relevant field may be required.
Analyze and evaluate disputes
After collecting sufficient information and evidence, it is necessary to thoroughly analyze and evaluate the dispute to determine:
– Legal rights and obligations of each party: Assess which party has violated its commitments and which party is affected by that violation.
– Factors affecting dispute resolution: Consider practical and legal factors that may affect dispute resolution, such as the ability to implement arbitral awards, impact on business relationship between the parties, and other factors.
1.2. Arbitration Agreement
An arbitration agreement is a contract between parties in which they agree to resolve disputes through arbitration. This can be established before a dispute arises (usually as a clause in the main contract) or after a dispute has arisen. Arbitration agreements have several characteristics:
– Binding: Once the parties have agreed to arbitration, they are bound by the arbitrator’s decision and cannot take that dispute to court (except in certain special cases).
– Voluntary: Parties voluntarily agree to use arbitration as a method of dispute resolution.
– Confidentiality: The arbitration process is often kept confidential, protecting the privacy of the parties.
An arbitration agreement should include the following basic contents:
– Scope of agreement: Clearly define which types of disputes will be resolved by arbitration. For example, “Any dispute arising out of or relating to this contract shall be resolved by arbitration.”
– Arbitrator selection process: Regulates the method of selecting arbitrators, the number of arbitrators (usually one or three), and requirements on the independence and neutrality of arbitrators.
– Procedural rules: The parties can choose to apply the procedural rules of a specific arbitration organization (such as the Vietnam International Arbitration Center – VIAC) or agree on their own procedural rules.
– Place and language of arbitration: Determine where the arbitration takes place and the language used in the proceedings.
– Applicable law: Specifies which law will be applied to resolve disputes. This may include national, international law, or specific legal principles.
For the arbitration agreement to be legally valid and enforceable, the following conditions must be met:
– Written agreement: The arbitration agreement must be in writing or at least confirmed in writing, email, or other forms of communication.
– Voluntary consent of the parties: The agreement must be voluntarily agreed to by the parties without coercion or deception.
– Clear and specific content: The agreement must be clear about the scope of the dispute, the arbitration process and other related regulations.
Arbitration agreements are important tools in dispute resolution, providing flexibility, security and efficiency. However, the parties need to consider carefully when making this agreement to ensure that their rights and obligations are best protected.
2. Select arbitrators and arbitration centers
Select the arbitrator’s professional qualifications related to the area of dispute
To resolve a dispute well, first of all, an arbitrator must have professional qualifications related to the field of dispute.
This level of arbitrators does not just stop at the ordinary level but must be at the expert level and must have high reputation in that field. In fact, arbitrators are mainly lawmakers, they may work at universities with legal expertise, legal research institutes, or jurists, lawyers, etc.
Therefore, the parties need to pay attention to the arbitrator’s professional qualifications related to the disputed field, from which they can choose the appropriate arbitrator.
Select the nationality of the arbitrator
The parties may choose an arbitrator whose nationality has a close connection to the dispute between the parties.
For example, a dispute between trader A and trader B has the same Vietnamese nationality, the language used in the transaction is Vietnamese. With a Vietnamese arbitrator, the parties can grasp and understand the spirit and thinking trends of the arbitrator when they adjudicate.
In addition to the arbitrators of the nationality mentioned above, the parties may choose an arbitrator of a nationality where experienced arbitrators handle similar disputes. For example: France (where the International Chamber of Commerce Arbitration Court – ICC is located), Singapore (where the Singapore International Arbitration Center – SIAC is headquartered).
Select arbitrators who are independent, objective, and impartial
It is necessary to select arbitrators who are independent, objective, and impartial. This is considered a central principle of arbitration.
The independence of the arbitrator is shown in the fact that the arbitrator has no direct or related interests in the dispute, and is not influenced by any agencies, organizations or individuals when resolving the dispute. accept.
The arbitrator’s objectivity is guaranteed when the arbitrator properly performs the role of a third person, deciding right or wrong based on evidence, documents, and circumstances of the case and making decisions according to the provisions of law. law.
The arbitrator’s impartiality is demonstrated when the arbitrator does not express an opinion against one of the disputing parties or the outcome of the trial.
Choose an arbitrator who has handled similar cases
Choosing an arbitrator who has handled similar cases in the past brings many important benefits to the parties in the dispute resolution process. Arbitrators who have handled similar cases will have in-depth knowledge of the specific area of dispute. This helps them master the legal and practical aspects of the case, helping the dispute resolution process take place accurately, in-depth, quickly and effectively.
However, it is necessary to select an arbitrator who has handled similar cases carefully and considerately, thereby ensuring fairness and impartiality between the disputing parties.
3. Judgment and judgment process
The arbitration award is the decision of the Arbitration Council to resolve the entire content of the dispute and terminate the arbitration proceedings.
Article 61 of Vietnam Commercial Arbitration Law 2010 stipulates that arbitration awards must be made in writing with the following main contents:
a) Date, month, year and location. point of judgment;
b) Names and addresses of the plaintiff and defendant;
c) Full name and address of the Arbitrator;
d) Summary of the petition and disputed issues;
dd) Grounds for making the judgment, unless the parties have agreed not to state the grounds in the judgment;
e) Dispute resolution results;
g) Time limit for enforcement of the judgment;
h) Distribution of arbitration costs and other related costs;
i) Signature of Arbitrator.
The 2010 Commercial Arbitration Law stipulates that the arbitration award shall be issued immediately at the meeting or at the latest, from the end of the last meeting. The arbitration award must be sent to the parties immediately after the date of issuance. The parties have the right to request the Arbitration Center or the Ad Hoc Arbitration Council to issue a copy of the arbitration award. The arbitration award is final and takes effect from the date of issuance.
Also according to the provisions of the 2010 Commercial Arbitration Law, when resolving a commercial dispute with a foreign element, the parties involved have the right to agree on the choice of applicable law to resolve the arising dispute. If the parties cannot choose, the Arbitration Council will decide the applicable law (Article 14, clause 2). In cases where Vietnamese law or the law chosen by the parties do not have specific provisions related to the content of the dispute, the Arbitration Council may apply international practices to resolve the dispute if the application or consequences The results of that application do not contravene the basic principles of Vietnamese law (Article 14, Clause 3). The parties have the right to agree on a location for dispute resolution in Vietnam or abroad (Article 11). The parties have the right to agree on the use of language in arbitration proceedings (Article 10), etc.
4. How to resolve disputes with 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 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”.
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].
(c) the law applicable to the contract is [ ].*
(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 [ ].*
(c) the arbitration language is [ ]. **
Note:
* Only applies to disputes with foreign elements
** Only applies to disputes with foreign elements or disputes where at least one party is a foreign-invested enterprise
