Commercial mediation

Commercial mediation along with negotiation, commercial arbitration is an alternative method of dispute settlement that has a long history of formation and development in the world, especially in a country with a developed economy. favored by individuals and economic organizations due to the superior advantages of this method over court proceedings. In Vietnam, the mediation method has been recognized in principle in legal documents, under law as well as international treaties that Vietnam has signed or acceded to. In particular, the Politburo's Resolution No. 49-NQ / TW dated June 2, 2005 on the Judicial Reform Strategy up to 2020, affirmed “to encourage the resolution of some disputes through negotiation and conciliation. award, arbitration; The court supports with the decision to recognize the settlement ”. This is an important policy as the basis for the development of legal provisions on alternative dispute resolution methods, including commercial mediation.

 

In implementation of the Prime Minister's Decision No. 808 / QD-TTg dated June 29, 2012, promulgating the Action Program to implement the overall Strategy for development of the service sector of Vietnam to 2020, the Ministry of Private France is assigned to assume the prime responsibility for, and coordinate with concerned ministries and branches in, formulating and submitting to the Government a Decree on commercial mediation. On February 26, 2017, the Government issued Decree No. 22/2017 / ND-CP on commercial mediation effective from April 15, 2017 (hereinafter is the Decree). Decree No. 22/2017 / ND-CP is the only document governing commercial mediation with the following basic contents:

Scope of dispute settlement

Similar to the scope of resolving disputes by commercial arbitration, Article 2 of Decree 22/2017 / ND-CP stipulates the scope of dispute settlement by commercial mediation is disputes between parties arising from activities. commercial action or disputes between parties in which at least one party has commercial activities or other disputes between the parties that are required by law to be resolved by commercial mediation.

Dispute conditions are settled by commercial mediation if the parties agree to mediation. The parties may agree to settle disputes by mediation before, after a dispute occurs or at any time in the dispute resolution process.

Standards of the commercial mediator

Article 7 of Decree 22/2017 / ND-CP provides for standards of commercial mediators such as having civil act capacity, good ethical qualities, reputation, independence, impartiality, objectivity. , have a university or higher degree and have actually worked in the field of training for 2 years or more, have conciliation skills, legal knowledge, understanding of business practices, commerce and other fields. related area. A commercial mediator includes a commercial mediator in a business case and a commercial mediator at a commercial mediation institution.

Organize commercial mediation

Commercial Mediation Organizations include Commercial Mediation Centers and Arbitration Centers that provide commercial mediation services. The main commercial mediation centers actually operate after being licensed by the Ministry of Justice and registered at the Department of Justice of the province or centrally run city where the Center is located.

Order and procedures for commercial mediation

 The commercial mediation order and procedures are basically built on the basis of reference to the Model Law on commercial mediation of the International Trade Law Commission (UNCITRAL). According to Article 14, Article 17 of Decree 22/2017 / ND-CP, when participating in mediation, the parties have the rights and obligations such as choosing a commercial mediator, the mediation order and procedures, location, time to conduct mediation, to request suspension or termination of the mediation, to express will and make decisions on the mediation settlement content, to be obliged to present truthfully, details of the dispute, provide information and documents related to the dispute at the request of the commercial mediator, enforce the successful mediation agreement, respect the commercial mediator, and other obligations as prescribed by law. . The parties have the right to choose the mediation rule of a commercial mediation institution as the mediation method or to agree upon the method of mediation. In the event that the parties do not agree on the method of mediation, the mediator shall conduct the mediation procedure in a way that the commercial mediator deems appropriate with the circumstances and the wishes of the parties and approved by the parties.

The mediation agreement is successful and the mediation result recognized

In case the parties reach an agreement on the settlement of part or the whole of the dispute, the parties sign a successful mediation agreement with main contents such as grounds for mediation, basic information about the party, main content of the case, the agreement reached and the agreed solution of the parties in accordance with the provisions of law. A document on successful mediation result is effective to the parties in accordance with civil law. The recognition of successful mediation results shall be considered and recognized in accordance with the civil procedure law. In addition, Article 15 of Decree 22/2017 / ND-CP stipulates that in case of unsuccessful mediation, the parties have the right to request arbitration or the court to resolve the dispute in accordance with the law.

6.On results of commercial mediation

After Decree No. 22/2017 / ND-CP on commercial mediation was issued, the Ministry of Justice proactively issued Decision No. 944 / QD-BTP dated July 3, 2017 promulgating the implementation plan. Decree No. 22/2017 / ND-CP on commercial mediation, Official Letter No. 2147 / BTP-BTTP dated June 26, 2017 on the implementation of Decree No. 22/2017 / ND-CP, Decision No. 500 / QD-BTP dated March 26, 2018 announcing newly issued administrative procedures in the field of commercial mediation under the state management scope of the Ministry of Justice, Circular 02/2018 / TT-BTP dated 26 / 2/2018 issue and guide the use of a number of forms on organization and commercial mediation activities effective from April 20, 2018. The Ministry of Justice has coordinated with ministries and branches to organize the conference to propagate, disseminate and thoroughly grasp the contents of Decree No. 22/2017 / ND-CP to ministries, branches, localities, organizations and individuals. individuals, especially businesses within the country.

At localities, the implementation of Decree No. 22/2017 / ND-CP has also been paid attention to. The Departments of Justice of the provinces and cities directly under the Central Government have actively advised the People's Committees of provinces and cities directly under the Central Government to formulate and issue implementation plans; Propagating and disseminating in many forms about the purpose and meaning of the promulgation of Decree No. 22/2017 / ND-CP, on the role and effectiveness of dispute settlement method by commercial mediation To thoroughly grasp the basic content of Decree No. 22/2017 / ND-CP to local agencies, departments, agencies, organizations, the business community, a team of commercial mediators, arbitrators , attorney, law reporter.

Up to now, the country has had 07 commercial mediation centers licensed by the Ministry of Justice, 03 arbitration centers have been supplemented with commercial mediation functions, mainly in Hanoi and Ho Chi Minh City. Ho Chi Minh City and nearly 100 commercial mediators have registered at the Department of Justice of the province or centrally-run city. However, to date, there are no reported data about a commercial dispute resolved by commercial mediation.

For more information about Commercial Mediation services by OSLAW please contact us on hotline at 0984 893 239/0395 974 826 or email to oslaw.services@gmail.com.

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