1. Compare Commercial Arbitration and Court
| Comparison problem | COURT PROCEEDINGS | ARBITRATION PROCEEDINGS |
| The issue of determining the address of the defendant, sending and serving procedural documents | Provisions of law: The Plaintiff must write down the complete and correct address of the Defendant’s residence in the petition, and provide evidence to prove that this address belongs to the defendant. Court records and documents upon service and notice must be delivered directly to the Defendant or through their legal representative and they must sign and receive the documents. Regulations: Article 177, Article 178 of the 2015 Civil Procedure Code (CPC 2015); Clause 1, Article 5, Resolution No. 04/2017/NQ-HDTP Practical application: In many cases where the Defendant changes and makes it difficult to determine the actual and legal address, the dispute is at risk of: – The court returned the lawsuit petition (Point e, Clause 1, Article 192 of the Civil Procedure Code 2015) – The court stops resolving the case (Point h, Clause 1, Article 217 of the 2015 Civil Procedure Code, Point c, Clause 2, Article 6 of Resolution No. 04/2017/NQ-HDTP) In case the Defendant is absent and does not sign directly, the proceedings must involve many other agencies and organizations, prolonging the time to resolve the dispute. | Laws and Rules of Procedure: The Defendant’s address is determined to be the address notified by the parties: – The address is stated in the transaction contract between the parties. – Or the address that the parties provide to the Arbitration Center or Arbitration Council. The sending of Arbitral proceedings documents is completed when: – The Defendant or the Defendant’s representative received it directly. – Or has been “sent to the parties’ addresses” with valid confirmation of this sending without the need for “direct delivery”. Regulations: Article 12 of the Law on Commercial Centers 2010 Practical application: Very convenient for the Plaintiff and the Arbitration Council in resolving disputes. Overcoming the situation of many defendants avoiding their obligation to participate in resolution meetings. |
| Location dispute resolution | Provisions of law: The 2015 Civil Procedure Code stipulates that the location for dispute resolution is the Court where the Defendant resides or works if the Defendant is an individual, or where the defendant is headquartered if the Defendant is an agency or organization; the Plaintiff’s place of residence and work, and the Plaintiff’s headquarters if the parties so agree. If there is a real estate dispute, the Court where the real estate is located has jurisdiction. Regulations: Article 39 of the Civil Procedure Code 2015 Practical application: If the Plaintiff is in a different location, far away from the Defendant, there will be a lot of costs and time… When the Defendant is not at a clear place of residence or work, it is difficult for the Court to determine the settlement location, leading to the case affecting the time and proceedings. | Laws and Rules of Procedure: Trial at the headquarters of the Arbitration Center, any suitable location or any place as agreed by the parties. Regulations: Clause 1, Article 11 of the Law on Commercial Centers 2010 Practical application: The arbitration council shall base itself on the agreement of the parties or on favorable conditions to organize the hearing, achieving efficiency in terms of time and reasonable costs for the parties. The trial location may change according to emerging conditions. |
| Person with jurisdiction | Provisions of law: As judges, People’s Jurors are appointed and assigned by the Chief Justice of the Court. Regulations: Clause 1, Article 47 of the Civil Procedure Code 2015
| Laws and Rules of Procedure: As Arbitrators, chosen by the parties; If the parties do not choose, they will request the Arbitration Center to appoint one Regulations: Article 40 of the Law on Commercial Centers 2010 |
| Time handle one case dispute | Provisions of law: First instance stage, acceptance and trial process: 04 to 06 months (Article 203 of the Civil Procedure Code 2015) Appeal stage: 04 to 05 months (Article 286 of the Civil Procedure Code 2015). In addition, the Court can issue a decision to indefinitely suspend the resolution of the lawsuit (Articles 214, 288 of the Civil Procedure Code 2015). The judgment can also be reviewed according to cassation procedures within 4 months (Article 339 of the Civil Procedure Code 2015) or retrial within 4 months (Article 357 of the Civil Procedure Code 2015). Practical application: Actual resolution time is longer than prescribed, business and commercial disputes can last for many years. | Laws and Rules of Procedure: Normally it is 03 to 04 months, from the time the Arbitration proceedings begin until the Arbitrator’s decision is issued. Regulations: Article 32 to Article 61 of the 2010 Commercial Center Law Practical application: Arbitration Centers always consider dispute resolution time as a top priority and are flexible in procedures so that cases can be resolved within a maximum of 3 months. |
| Apply summary proceedings | Provisions of law: Courts only apply summary procedures when the case has statutory conditions. Resolution time can be shortened as follows: First instance stage: 03 months Appeal period: 03 months Regulations: Articles 191, 203, 286, 317, 318, 322, 323 of the Civil Procedure Code 2015. Practical application: In practice, the Court rarely ensures the shortened time as prescribed above. There are no specific instructions on situations and details that satisfy the shortened conditions. Many judgments have been annulled due to inconsistencies in how to evaluate the conditions for applying summary procedures, directly affecting the time and finances of the plaintiff. | Laws and Rules of Procedure: The Law on Commercial Arbitration 2010 or the Rules of Procedure of commercial arbitration centers allow the parties to agree on the application of dispute resolution according to summary procedures to shorten the time for dispute resolution. Regulations: Clause 6, Article 3 of the Law on Commercial Centers 2010 Currently, most simple disputes at the Arbitration Center are adjudicated according to shortened procedures, lasting only 40 days. |
| Language judge | Provisions of law: Vietnamese (Article 20 of the 2015 Civil Procedure Code) is the only language of trial Practical application: In disputes with foreign elements and litigants who are foreigners, resolving the dispute is very difficult for both the Court and the litigants. Documents using foreign languages have actually caused many unfavorable legal situations for the parties during the settlement process at Court. | Laws and Rules of Procedure: Vietnamese. If there is a foreign element, the parties have the right to agree on the choice of language (Clause 2, Article 10 of the 2010 Law on Commercial Centers). Practical application: Arbitration Centers all have Arbitrators who are fluent in many languages, which is convenient for resolving disputes. |
| Levels judge dispute | Provisions of law: There are many levels of trial: from first instance to appeal, the Court’s judgment can be reviewed according to cassation or retrial. Practical application: Many disputes require trial from first instance to appeal. Because Court proceedings have many other stages of trial, it leads to a prolonged period of time, which is the reason why many organizations, individuals, and disputes in the field of commercial business do not want to choose. | Laws and Rules of Procedure: The case is only heard once. The arbitrator’s decision is final, enforceable, and cannot be appealed or protested. Practical application: The Arbitrator’s decision is final, so it does not cause cost or time loss to the parties. |
| Confidentiality in the dispute resolution process | Provisions of law: Publicity (The public can attend, the media reports…) is the Court’s principle of trial. Regulations: Article 15 of the Civil Procedure Code 2015. Practical application: The court publishes the verdict on its website: https://congbobanan.toaan.gov.vn/ Publicizing dispute information can sometimes reveal business secrets or negatively affect the reputation of businesses, especially companies listed on the stock exchange. | Laws and Rules of Procedure: Not public. Regulations: Clause 4, Article 4 of the Law on Commercial Centers 2010. Practical application: Arbitration proceedings always keep case documents and information confidential during the dispute resolution process. The Arbitration Award is not published or accessible to the media. |
| Court fees/arbitration fees | Provisions of law: Court fees for resolving disputes at Court are specifically and uniformly regulated by law in Resolution 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee. Court fees are lower than Arbitration fees. However, if the trial is long, multi-level and has different trial locations… then the total cost will sometimes be much higher. | Arbitration Rules: Regulated in the Arbitration Fee Schedule that commercial arbitration centers publicly announce. Each Arbitration Center has different regulations on Arbitration fees. Higher than the Court’s fees but clearly accounted for, minimizing other costs. |
| Refund of court fees/Arbitration fees in case the Plaintiff wins the case | Provisions of law: When the Plaintiff wins the lawsuit and there is no other agreement on the division of court fees, the entire court fee advance will be refunded to the Plaintiff by the Civil Judgment Enforcement Agency according to the prescribed procedures.
Regulations: Article 144 of the Civil Procedure Code 2015, Article 126 of the Law on Execution of Civil Judgments amended and supplemented in 2014. Comment: The Plaintiff will be reimbursed directly from the Enforcement agency within the prescribed time period. However, the procedure for the Plaintiff to receive back the advance payment of court fees from the judicial system also creates many difficulties in practice.
| Arbitration Rules: The Arbitration Center will not refund the Arbitration fee advance to the Plaintiff, but the Defendant will be obliged to pay it back to the Plaintiff. Regulations: Clause 3, Article 34 of the Law on Commercial Centers 2010 Comment: – This Arbitration Fee will be received by the Plaintiff as part of the Defendant’s obligations. – With the Plaintiff being able to participate in a professional, effective form of litigation, saving a lot of time, travel costs, lawyer fees…I think this difference is also appropriate. fit. |
| Problem cancel the sentence | Provisions of law: The first instance verdict may be overturned for retrial by the appellate level. The appeal judgment can be overturned by cassation or retrial procedures with a long period of time that is difficult to determine. The Court of Appeal can even annul the first instance judgment and suspend the resolution of the case. Person requesting annulment or reconsideration of judgment: Plaintiff, Defendant, competent person of the Procuracy, People’s Court… Regulations: Articles 308, 310, 311, 326, 271, 331, 343, 345, 356… CPC 2015 Found that: The possibility that the Court’s judgment can be canceled by: – Reason: violation of procedural procedures, incorrect content, wrong application of law… – Canceled at different trial levels: canceled at the appeal level, canceled according to cassation or retrial procedures. – Can be annulled many times at the same level: The first instance verdict can be annulled, and when re-trial it can also be annulled.. – The subject with the right to request cancellation or review of the judgment is not only the Defendant but also the Plaintiff, competent person of the Procuracy, People’s Court… The strict control of the Court system has significant advantages, but it also greatly affects the process of seeking justice and the legitimate rights of litigants. | Arbitration Rules: The arbitration award may be overturned by the Provincial Court. The basis for review is violation of procedural issues such as procedural violation, arbitration agreement, establishment of the Arbitration Council, etc. The Court does not have the authority to review the legal content of the Award. arbitration, except in cases where there is a violation of basic principles of law. Time limit for the Court to resolve: 40 days by an application review council consisting of 03 experienced judges of the Provincial specialized court. Regulations: Clause 4, Article 4, Law on Commercial Procedures 2010, Clause 3, Article 414, Civil Procedure Code 2015 Found that: The request to cancel the Award is made by only one party in the dispute and only by one Provincial court. Most of the considerations for annulment of the Award are related to legal proceedings. Arbitration Centers, along with their Secretariat, support the Arbitration Council in procedural matters, so errors rarely occur. |
| Scope of international validity of the judgment/Judgment | The Court’s civil and commercial judgments are applied abroad when the State of Vietnam has signed bilateral mutual legal assistance agreements with those countries. According to Official Dispatch No. 33/TANDTC-HTQT dated March 17, 2021 of the Supreme People’s Court on mutual legal assistance and serving of procedural documents abroad (sourced from: https://thuvienphapluat.vn/tintuc/vn/thoi-su-phap-luat/chinh-sach-moi/35001/file-60-hiep-dinh-tuong-tro-tu-phap-tinh-den-ngay-17-3-2021), Vietnam has signed a number of agreements in the civil and commercial fields with a number of countries as follows: Agreement on mutual legal assistance in civil and commercial matters between the Socialist Republic of Vietnam and the Democratic and People’s Republic of Algeria Agreement on mutual legal assistance in civil matters between the Socialist Republic of Vietnam and the French Republic Agreement on mutual legal assistance in civil matters between the Socialist Republic of Vietnam and the Kingdom of Cambodia Agreement on mutual legal assistance in civil matters between the Socialist Republic of Vietnam and Hungary. ……… | Vietnam joined the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the 1958 New York Convention with about 150 member countries in 1995. That is why the Vietnamese Commercial Arbitration Award is valid and recognized and enforced in those member countries, such as the United States, France, England, Spain, Russia, and Korea. , Japan, Singapore… The important meaning of the large international territorial effect of the Award will be many advantages for disputes with foreign elements and enforcement of rights and property that litigants enjoy in another country. Thus, arbitral awards have a wider scope of international validity than court judgments. These arbitral awards contribute to bringing the decisions of arbitral councils made in Vietnam to reach the wider community. international copper. |
2. Advantages of Commercial Arbitration
Commercial arbitration has many advantages over traditional courts, especially in the context of international business and trade. Here are some key advantages:
Pursuant to Clause 1, Article 3 of the 2010 Commercial Arbitration Law, Commercial Arbitration is a method of resolving disputes agreed upon by the parties and conducted in accordance with the provisions of the Commercial Arbitration Law, such that when the parties agree agree to resolve disputes by arbitration, when there is a dispute, the arbitration mechanism will be applied to resolve the dispute. This is an optional mechanism, unlike the Court, which will be the default dispute resolution mechanism if the parties do not agree on any other options. It can be seen that the Arbitration mechanism gives parties more choice and initiative in resolving disputes. In addition, there are some advantages of this method that can be mentioned as follows:
- Procedures for resolving disputes by Arbitration are quick and flexible. The arbitrator’s decision is final, the arbitrator only hears it once, unlike the Court’s mechanism, where the Court’s Decision/Judgment can be appealed to a higher court level.
- Ensuring information security. Clause 4, Article 4 of the 2010 Commercial Arbitration Law stipulates that “Dispute resolution by arbitration shall be conducted in a non-public manner unless the parties agree otherwise.” This helps businesses, if caught in disputes or lawsuits, still maintain business secrets and reputation in the marketplace.
- In the Arbitration Council, in addition to arbitrators with expertise in law, there are also many arbitrators who are experts in other specific professions such as engineering, oil and gas, construction, etc. This makes dispute resolution more comprehensive, because in special cases, there are disputes related to specific industries and require a person with specialized knowledge in that field to resolve the dispute. Arbitration centers are non-governmental dispute resolution agencies, not part of the state apparatus, operate independently, so the neutrality of Arbitration is guaranteed.
3. Suitable situations for using Commercial Arbitration
Commercial arbitration is an appropriate method of dispute resolution in a variety of situations, especially in international business and commercial transactions. When parties face disputes related to international contracts, commercial arbitration becomes useful thanks to its neutrality, not being part of any country’s legal system, helping to reduce concerns about bias. taste. In addition, in situations requiring quick and confidential resolution, such as disputes involving high technology, confidential information or trade secrets, commercial arbitration is the optimal choice because of the process. kept confidential and fast. For businesses that want to maintain business relationships after dispute resolution, commercial arbitration helps avoid tensions and minimize conflicts thanks to the flexibility and customization of the process. In cases requiring high expertise, such as disputes over copyright, patents or complex technical issues, commercial arbitration with the participation of experts in the relevant field will bring a decision. accurate and fair. For example, a manufacturing company in Vietnam signs a contract to supply electronic components to an electronics manufacturer in Germany. If a dispute arises over product quality or delivery deadlines, both parties may not want to settle in the courts of the other country due to concerns about bias. In this case, international commercial arbitration provides a neutral and fair solution.
In general, commercial arbitration is suitable for situations requiring neutrality, confidentiality, speed and expertise, and helps parties maintain long-term business relationships.
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 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. Model arbitration clause applicable 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
