I Overview of commercial arbitration, types of commercial arbitration according to vn law and UNCITRAL 1 Concept of commercial arbitration 1 1 Concept According to the provisions of Clause 1, Article.
I Overview of commercial arbitration, types of commercial arbitration according to law and UNCITRAL Concept of commercial arbitration 1.1 Concept According to the provisions of Clause 1, Article of the Law on Commercial Arbitration (LTTTM): "Commercial arbitration is a method of dispute settlement agreed upon by the parties and conducted in accordance with the provisions of this Law" Accordingly, Commercial Arbitration is considered from two perspectives: dispute resolution method and dispute settlement agency Firstly, arbitration is a method of dispute resolution Arbitration has basic characteristics such as: Arbitration is a method of resolving disputes involving third parties – arbitrators or sole arbitrators The arbitrator is an intermediary, completely independent of the parties, standing in the middle to resolve disputes and make judgments of a mandatory nature to protect the interests of the parties Thereby, arbitration is a method of resolving disputes through stricter proceedings than negotiation and conciliation The result of resolving the dispute at arbitration is the award pronounced by the arbitrator against the litigants of the dispute Secondly, arbitration is the body that resolves disputes Arbitration is understood as an independent jurisdiction, which exists in parallel with the Court The law respects the freedom of choice of the parties, when a dispute in trade arises, the subjects can choose either the Court or Arbitration to resolve the dispute for themselves Arbitration is a social-professional organization established by arbitrators to resolve disputes arising in the field of commercial business The power of arbitration does not come naturally but comes from the agreement between the subjects of the dispute with respect to the arbitration The award of the arbitrator is both a combination of the will and agreement of the parties, and the jurisdiction of the competent authority 1.2 Features Firstly, commercial arbitration is a non-governmental organization, operating in accordance with the laws and regulations on commercial arbitration The State does not interfere deeply in the activities of arbitral institutions, but will perform its management role through the system of legal regulations, as well as other impacts such as participation in international treaties, training, financial support and facilities Secondly, arbitration is a combination of two elements of agreement and jurisdiction First, commercial arbitration is a method of dispute settlement agreed upon by the parties and conducted in accordance with the law on arbitration One of the basic principles of arbitration is that jurisdiction is formed from the will of the disputing parties to an agreement Thirdly, the laws of many countries around the world as well as the laws of Vietnam recognize the support of the Court for the organization and operation of commercial arbitration The Court supports arbitration on issues such as: through the order and procedures for recognition and enforcement of commercial arbitration decisions Fourthly, commercial arbitration exists in two basic forms: ad-hoc arbitration and regulatory arbitration Fifthly, the arbitral award has final validity and cannot be appealed before any agency or organization The arbitrator only hears once, the award has final validity, and if it is not annulled, the award will be transferred to the Enforcement Agency 2 Two forms of commercial arbitration Ad-hoc arbitration 2.1 Ad-hoc arbitration is a method of arbitration agreed upon by the disputing parties to resolve the dispute between the parties and it will cease to exist on its own when the dispute is resolved This is the earliest form of arbitration and is widely used in countries around the world However, the provisions of the laws of other countries on this form of arbitration are also at different depths and widths The nature of the arbitration of the case is expressed in the following basic characteristics: * Ad-hoc arbitration is only established when a dispute arises and selfterminates when the dispute is resolved Accordingly, arbitration is established only by agreement of the disputing parties to resolve a specific dispute between the parties When the dispute is resolved, the arbitrator terminates itself * Ad-hoc arbitration has no permanent headquarters, no executive apparatus and no separate list of arbitrators Arbitrators selected or appointed by the parties may be persons named or off the list of arbitrators of any arbitration centre * Ad-hoc arbitration does not have its own rules of procedure, but procedural rules for resolving disputes must be agreed upon by the parties Usually, the disputing parties can agree on the choice of any common procedural rules, usually the procedural rules of reputable domestic and international arbitration centers Ad-hoc arbitration was first regulated in the Commercial Arbitration Ordinance of 2003 Before the promulgation of the Commercial Arbitration Ordinance, ad-hoc arbitration was only recognized as a method of dispute resolution by Ad-hoc arbitration After the promulgation of the Commercial Arbitration Ordinance, the appearance of Ad-hoc arbitration in Vietnam is clearly depicted 2.2 Permanent arbitration Permanent arbitration is held in the form of arbitration centers The arbitration center is a non-governmental organization, has legal status, has a seal, has its own account and has a stable trading headquarters Arbitration centers have some of the following basic characteristics: * Arbitration centers are non-governmental organizations, not part of the system of state agencies; but at the same time still receive state support * Arbitration centers have legal status, existing independently of each other * Organization and management in arbitration centers are very simple and compact * Each arbitration center decides on its own field of activity and has its own rules of procedure * The adjudication of the arbitration center is conducted by the arbitrators of the center Each arbitration center has its own list of its arbitrators The selection or appointment of arbitrators to participate in dispute resolution is limited to the center's list of arbitrators Therefore, the arbitration center's adjudication is conducted only by the arbitrators of the center itself II Benefits and drawbacks of various types of commercial arbitration Ad-hoc arbitration II.2 Advantages • Right of disposition between major parties • Low cost • Unlimited list of arbitrators • The parties have the right to agree on dispute settlement procedures themselves • Can shorten dispute resolution time II.3 Disadvantages • Does not guarantee the expertise of arbitrators in different areas • There is no separate statute, so it is difficult to bind the parties to the dispute resolution process • It is difficult to foresee problems arising in the dispute resolution process that may lead to the possibility of overlapping disputes • In order to be able to enforce the ruling, it is necessary to register in court which is time-consuming Permanent arbitration 2.1 Advantages • The parties not need to depend on each other because there is a detailed order, procedure and common application • List of arbitrators ensuring expertise and diversity of fields and professions • The judgment is final and equal in effect to the court's judgment, without registration • Ensure the dispute resolution process, fees are done on time 2.2 Disadvantages • Costly for the operation of the apparatus and the cost of arbitration • The order and procedures comply with separate regulations, so it is impossible to arbitrarily shorten the time limit • The disposition rights of the parties are not high • Participation in dispute settlement must be carried out at the head office, the details of the arbitral institution may be detrimental in terms of movement to one or the parties In fact, permanent arbitration tends to be preferred over the other form The reason stems from the fact that when the parties have a dispute and need to look to a 3rd party to resolve it, when the parties have not found a common voice, cannot sit down together to negotiate, agree or one party deliberately avoids to evade responsibility, its obligations make it impossible to establish an arbitration panel on the case That is also the reason why today there are many regulatory arbitration organizations established in many countries around the world with many different names such as: Arbitration Institute, Arbitration Committee, Arbitration Council, but the most popular is still the Arbitration Center III Conclusion With its fast, flexible, flexible, efficient nature as well as other advantages in resolving commercial disputes that need to be fast, accurate and inexpensive, arbitration is increasingly interested and used by businesses around the world in dispute resolution Within the framework of the United Nations, UNCITRAL has drafted model statutes on arbitration rules for member states to apply The mechanism for resolving commercial disputes by arbitration does not have a long history of development in Vietnam, but we are constantly promulgating and amending arbitration regulations, especially the Law on Arbitration in 2010, helping the legal framework for commercial dispute settlement by arbitration is quite complete and constantly improved accordingly in Vietnam ... promulgation of the Commercial Arbitration Ordinance, the appearance of Ad-hoc arbitration in Vietnam is clearly depicted 2.2 Permanent arbitration Permanent arbitration is held in the form of arbitration. .. be transferred to the Enforcement Agency 2 Two forms of commercial arbitration Ad-hoc arbitration 2.1 Ad-hoc arbitration is a method of arbitration agreed upon by the disputing parties to resolve... Arbitration Ordinance of 2003 Before the promulgation of the Commercial Arbitration Ordinance, ad-hoc arbitration was only recognized as a method of dispute resolution by Ad-hoc arbitration After