Legislation on commercial mediation in vietnam

ASIA-PACIFIC REGION MEDIATION LEGISLATION IMPROVEMENT SEMINAR LEGISLATION ON COMMERCIAL MEDIATION IN VIETNAM Vietnam, 20th December 2021 NGUYEN MANH DZUNG • MOJ Drafting Board Member • Member | ICC Task Force on ADR (Track 4) • Mediator | JIMC Kyoto, MHJMC, HIAC & VMC 1 CONTENTS The Drafting History Scope of commercial mediation Standards and qualifications for mediators Licensing issue to access the market Ad-hoc mediation Confidentiality, non-admissibility of mediation evidence Flexibility Enforceability of mediation clauses, mediation agreements and mediated settlement agreements (MSA) The impact of mediation on litigation limitation periods (Time Bar issue) and Mandatory or not? 10 MEDIATION ECOSYSTEM 11 Achievements 2 THE DRAFTING HISTORY OF THE GOVERNMENTAL DECREE NO 22/CP ON COMMERCIAL MEDIATION - The Drafting Process: 16th May 2013 – 24th February 2017 - Initiated by Ministry of Justice on 5/8/2011 with the support of USAid - 18 different drafts - Commented by UNCITRAL on 25th June 2015 - Technically supported by ADR expert of International Finance Company (IFC) of the World Bank Group - Contributed by different ministries - Wait for Civil Procedure Code on the recognition of mediated settlement agreements approved on 25th November 2015 SCOPE OF COMMERCIAL MEDIATION Does not adopt the term “commercial” as defined in Model law on International Commercial Mediation 2002 Follow the same scope of commercial arbitration as provided in Art2 of Law on Commercial Arbitration in 2010 for approval purpose; Article Scope of dispute resolution in commercial mediation Dispute between parties arising from commercial activities Disputes between parties, in which at least one party is engaged in commercial activities Other disputes among parties which are stipulated by law to be resolved by commercial mediation 4 STANDARDS AND QUALIFICATIONS FOR MEDIATORS Do not set out national accreditation system of mediators as recommended Mandatory minimum standards for approval purpose Article Qualifications of commercial mediators A person with all the following qualifications may act as a commercial mediator: a) Having full civil legal capacity as prescribed by the Civil Code; having good moral qualities, prestige, independence, impartiality and objectivity; b) Having a university or higher qualification and at least year working experience in the discipline which he or she studied; c) Having the skills of mediation, legal understandings, knowledges on business and commercial practice and related fields Mediation institutions require higher qualifications for accreditation on their panel of mediators; Local departments of justice require mediation training certificate and work experience for listing as ad-hoc mediators 5 LICENSING AUTHORITY The Ministry of Justice of Vietnam is the state licensing authority for all mediation institutions operating in Vietnam Mediation service can be provided by both mediation institutions and arbitration institutions Founders of a mediation institution must be Vietnamese citizens who are qualified as mediators under Decree 22/CP Local departments of justice register listing of ad-hoc mediators who are Vietnamese citizens and foreign residents satisfying mandatory minimum standards as required by law Foreign mediators are accredited by mediation institutions on their panels of mediators; AD-HOC MEDIATION Ad-hoc mediation is accepted in Vietnam Ad-hoc commercial mediation means a dispute resolution method by adhoc commercial mediators selected by the parties conducted in compliance with the provisions of this Decree and the parties’ agreements Listing as ad-hoc mediators in Vietnam: Article Registration of an ad-hoc commercial mediator A person with all the qualifications prescribed in Clause 1, Article of this Decree who desires to act as an ad-hoc commercial mediator shall register at the Department of Justice of the province or municipality where he or she resides If the applicant for registration is a foreigner, he or she shall register at the Department of Justice of the province or municipality where he or she resides 7 DISCLOSURE & CONFIDENTIALITY Confidentiality is a cornerstone in commercial mediation as provided in article & of Model law: Article Principles of dispute resolution by commercial mediation All information related to a mediation case shall be kept confidential unless otherwise agreed by parties in writing or provided for by the law Article Rights and obligations of commercial mediators Commercial mediators shall have the following obligations: c) Keeping confidential the dispute settled by them, unless otherwise agreed by parties in writing or required by the law; Does not adopt Article 10 Admissibility of evidence in other proceedings in Model law as governed by CPC 2015 8 FLEXIBILITY (ART.6 MODEL LAW) Article 14 Order and procedures for mediation Parties are entitled to choose the Mediation rules of a Commercial Mediation institution or agree on their own procedures of mediation Where the parties have no agreement on the order and procedures for mediation, commercial mediators shall conduct the mediation in the order and procedures that such commercial mediators find appropriate to the content of the dispute and the will of parties which are agreed upon by the parties A dispute may be conducted by one or multiple commercial mediators as agreed by the parties At any time during a mediation process, a commercial mediator is entitled to propose a resolution to the dispute The place and time of mediation shall be in accordance with the agreement of the parties or at the option of commercial mediators in the absence of an agreement by the parties 9 ENFORCEABILITY (ART.14 MODEL LAW) The mediated settlement agreement (MSA) is deemed as a new contract under Civil law: Article 15 Successful mediation results When a successful mediation result is reached, the parties shall make a written mediation settlement agreement The written mediation settlement agreement is valid and binding to the parties in accordance with civil laws MSA can be recognized by national courts under Chapter 33 of CPC 2015 as a full and final judgment: Article 16 Recognition of mediation settlement agreements A mediation settlement agreement shall be considered for recognition in accordance with the provisions of the civil procedure law 10 RESORT TO ARBITRAL OR JUDICIAL PROCEEDINGS (ART 13 OF MODEL LAW) In a multi-tier dispute resolution clause: Mediation is not mandatory! The time bar issue: Mediation time is not exempted from time bar counting! 11 MEDIATION ECOSYSTEM Civil Procedure Code 2015; Law on court-annexed mediation dated 30th June 2020 Mediation community Institutional supports A centralized platform/network 12 ACHIEVMENTS 72 CEDR accredited mediators 15+8 licensed mediation centers Over 100 Registered ad-hoc mediators 13 13 REFORMS IN PROGRESS Active participation in UNCITRAL’s Working Group III Developing commercial mediation practice and expanding court annexed mediation regime to create a foundation Internationalising dispute resolution practitioners in Vietnam Considering Singapore Convention on Mediation Initiative to draft a new act on commercial mediation 14 RECOMMENDATIONS United common policy to promote ADR covering DAB, Expert and others, etc Adopt UNCITRAL Model international recommendations; law and follow Closely work with national courts and legal profession; Consult with mediation users; Build up a comprehensive MEDIATION ECOSYSTEM 15 REFERENCE UNCITRAL comments: https://www.academia.edu/51465973/Comments_by_the_Secretariat_of_UNCIT RAL_on_the_draft_Decree_on_Commercial_Mediation_proposed_by_the_Govern ment_of_Vietnam Decree 22/CP on commercial mediation: https://www.academia.edu/63043423/The_Governmental_Decree_no_22_on_co mmercial_mediation_in_2017 CPC 2015-ADR chapters: https://www.academia.edu/63044426/Law_No_92_2015_QH13_CPC_2015_ADR_ chapters Law on court-annexed mediation: https://www.academia.edu/63043629/Law_No_58_2020_QH14_Law_on_Mediati on_and_Dialogue_at_Court VMC: https://medup.vmc.org.vn/en/ VICMC: https://vicmc.vn/dich-vu/hoa-giai-truc-tuyen/ MOJ: https://bttp.moj.gov.vn/Pages/hoa-giai-thuong-mai.aspx SPC: THANK YOU FOR YOUR ATTENTION! 17 ... resolution practitioners in Vietnam Considering Singapore Convention on Mediation Initiative to draft a new act on commercial mediation 14 RECOMMENDATIONS United common policy to promote ADR covering... mediation institutions operating in Vietnam Mediation service can be provided by both mediation institutions and arbitration institutions Founders of a mediation institution must be Vietnamese... term ? ?commercial? ?? as defined in Model law on International Commercial Mediation 2002 Follow the same scope of commercial arbitration as provided in Art2 of Law on Commercial Arbitration in 2010