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MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THESIS ONLINE ARBITRATION INTERNATIONAL EXPERIENCES AND LESSONS FOR VIETNAM Major International Trade Policy and Law NGUYEN BAO HOA H[.]
MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THESIS ONLINE ARBITRATION: INTERNATIONAL EXPERIENCES AND LESSONS FOR VIETNAM Major: International Trade Policy and Law NGUYEN BAO HOA Ha Noi - 2020 n MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THESIS ONLINE ARBITRATION: INTERNATIONAL EXPERIENCES AND LESSONS FOR VIETNAM Major: International Trade Policy and Law Code: 1706060005 Student: Nguyen Bao Hoa SUPERVISOR: Assoc Prof Nguyen Minh Hang Ha Noi - 2020 n i DECLARATION I confirm that that this Master Thesis has been written solely by the undersigned and contains the work of no other person or people except where explicitly identified to the contrary I also state that said Master thesis has not been submitted elsewhere for the fulfillment of any other qualification It was written with the thorough guidance of my supervisor - Assoc Prof Nguyen Minh Hang Hanoi, … 18th 2020 Author Nguyen Bao Hoa n ii ACKNOWLEDGEMENT The dissertation has been completed with the great guidance of Acc Prof Nguyen Minh Hang I would like to express my sincere thanks for her patience and massive help with reading the whole of the thesis and making valuable comments for my research By this occasion, I am much grateful to the Department of Graduate Studies and Foreign Trade University - who have always create most favorable conditions for MITPL6 students in completing our study Thank you so much for their generosity and I owe a debt of gratitude to all helpers n iii ABSTRACT Alternative Dispute Resolutions are mechanisms designed to solve disputes outside the scope of traditional jurisdiction New technologies may be incorporated to ADRs in order to facilitate the procedure and make it more efficient and less expensive manner In this thesis I will metion about the specific case of arbitration procedures that are conducted exclusively through electronic means of communication Online arbitration is an ideal dispute resolution mechanism to solve disputes arising from B2B transactions for various reasons, among others, because it allows parties to select a specialist they both trust to solve the controversy with an award that is binding for both parties, but that respect the minimum necessary formalities of the procedure Additionally, the use of electronic means of communication allows the procedure to be conducted in a faster pace, from any location, and allowing parties to get access to the documents of the procedure at any place at any time There is currently no legal framework designed specifically for the conduction of online arbitration procedures; therefore, the rules for traditional commercial arbitration should be used Even though the rules of traditional arbitration allow the existence of the online version, due to its special characteristics, online arbitration requires a set of rules designed especially for it Online arbitration requires a legal framework that regulates the use of electronic means of communication in the procedure, the way in which notifications shall be performed and acknowledgement of receipt granted The legal framework should also prescrible the obligation of the parties to take the necessary measures to ensure that the security and confidentiality of all the information exchanged in the procedure Finally, parties should be able to select the extra judicial mechanisms that they deem convenient for enforcing the award in an easy and fast manner n iv TABLE OF CONTENTS DECLARATION i ACKNOWLEDGEMENT ii ABSTRACT iii TABLE OF CONTENTS iv LIST OF ABBREVIATIONS vi INTRODUCTION .1 CHAPTER 1: OVERVIEW OF ARBITRATION AND ONLINE ARBITRATION 10 1.1 Arbitration and its advantages 10 1.1.1 Arbitration 10 1.1.2 Advantages of Arbitration in comparison with traditional jurisdiction 11 1.2 Online dispute resolution .13 1.2.1 Concept of online dispute resolution 13 1.2.2 Characteristics of online dispute resolution 15 1.3 Online arbitration 17 1.3.1 Concept of online arbitration 17 1.3.2 Structure and legal basis of electronic arbitration .20 1.3.3 Advantages and disadvantages of online arbitration 20 1.3.4 Block-chain regulation and Machine Made Justice in Online Arbitration 23 1.3.5 Applicable law to online arbitration .25 CHAPTER 2: APPLICATION OF ONLINE ARBITRATION IN THE WORLD AND IN VIETNAM 32 2.1 International experience of online arbitration in the world .33 2.1.1 Experience of online arbitration in EU 33 2.1.2 Experience of online arbitration in Iran 35 2.1.3 Experience of online arbitration in US 36 2.1.4 Experience of online arbitration in Singapore 40 n v 2.1.5 Experience of online arbitration in Indonesia .41 2.2 Online arbitration in Vietnam .43 2.2.1 Legal provisions on online dispute resolution and online arbitration 43 2.2.2 The application of online arbitration in Vietnam 50 2.2.3 Opportunities of applying online arbitration in Vietnam 56 2.2.4 Difficulties when applying online arbitration in Vietnam 59 CHAPTER 3: RECOMMENDATIONS AND SUGGESTIONS .62 3.1 Recommendations for the state of Vietnam .62 3.2 Recommendationsfor e-commerce businesses 67 3.3 Recommendations for online arbitration providers 69 3.4 Recommendations for IT and telecommunications infrastructure vendors .70 3.5 Recommendations for consumers .72 3.6 General trend around the World after pandemic .73 3.6.1 Trends after Corona Virus Pandemic 73 3.6.2 Legal framework for digital transformation for legal proceedings in Vietnam 75 CONCLUSION 77 REFERENCE 81 n vi LIST OF ABBREVIATIONS No Acronym Explanation SIAC Singapore International Arbitration Center LCC London Commercial Court DIFCC The Courts of the Dubai International Financial Centre UAE United Arab Emirates CISG United Nations Convention on Contracts forthe International Sale of Goods (Vienna, 1980) LCIA The London Court of International Arbitration ODR Online Dispute Resolution ADR Alternative Dispute Resolution QMUL Queen Mary University of London 10 SIFoCC Standing International Forum of Commercial Courts 11 VIAC Vietnam International Arbitration Center 12 VMC Vietnam Mediation Center 13 UNCITRAL The United Nations Commission on International Trade Law 14 UNCITRAL UNCITRAL Model Model Law Commercial Arbitration (1985), with amendments as adopted in 2006 15 IT Information Technology 16 AI Artificial Intelligence 17 ¶ Paragraph n Law on International INTRODUCTION Rationale International trade continues to increase in online volume, resulting in a sharp increase in disputes arising from such online commerce Accordingly, arbitration is the preferred method for resolving international trade disputes, in which online arbitration is the standard of alternative dispute resolution in the near future, especially in the field of e-commerce When the court could not afford to resolve the dispute, online arbitration has become a legal method of dispute resolution everywhere in the world with different levels of scope and application For online arbitration to be accepted, it is necessary to determine which basic rules will govern the choice of law, jurisdiction and enforcement of the award Online arbitration can inherit the characteristics of traditional arbitration, can also shorten the time of making judgments, save time and cost for all parties, apply modern technology to support aid dispute process In addition, online arbitration is particularly suitable for e-commerce, when the number of disputes arising is becoming more and more complicated in large numbers along with the rapid growth of payment and e-commerce The main content of the thesis will review the research and development of online arbitration in the world, study and refer to the experience of developing online arbitration of developed countries in the world and developing countries Like Vietnam, through which, the writer made recommendations to effectively apply online arbitration in Vietnam Litterature review There are several researches on ODR in general and online arbitration in particular Frank (1997) in the study of Online Systems in Alternative Dispute Resolution n found that the problem with online arbitration is difficult in selecting the appropriate law to apply to the dispute Arbitrators may only need to apply applicable legal rules to determine the law governing the value of the dispute, but it is often unclear what choice of laws rules will govern a particular dispute when Legal systems cannot be clearly defined when applied in Cyberspace Frank (1997) also argues that contractual obligations are the only effective means of contracting parties with online courts Therefore, the incorporation of online terms must be included in the user registration agreements Accordingly, the use of online systems to resolve binding disputes will be less restrictive Eddie (2000) argues that in the context of national legal systems related to censorship technology, there have been calls for adjustment of international commercial arbitration to consider the issue of online arbitration Accordingly, the parties to the Internet dispute will be comfortable, resolving their disputes through the same means that they are doing business Online arbitration also provides an incentive for the parties to agree on a dispute settlement system and the parties will be able to bypass formal legal institutions and maximize government intervention Eddie also discusses a number of special and very important issues that will need to be addressed to ensure the proper and legal functioning of online arbitration including: time frames applicable to online arbitration; rights of the parties to the dispute regarding access to the material; requests concerning communication between the parties and the arbitrator; procedure to cater for authenticated or authoritative situations; and instructions on the appearance and enforcement of online arbitration.Meanwhile, Llewellyn et al (2002) found that large costs, jurisdiction and transnational lawsuits were not feasible to perform in court,not provide an equal playing field for online arbitration in disputes between merchants although at the time this system may not exist or be inadequate for disputes between consumers and traders n ...MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THESIS ONLINE ARBITRATION: INTERNATIONAL EXPERIENCES AND LESSONS FOR VIETNAM Major: International Trade Policy and Law Code: 1706060005... resolution and online arbitration 43 2.2.2 The application of online arbitration in Vietnam 50 2.2.3 Opportunities of applying online arbitration in Vietnam 56 2.2.4 Difficulties when applying online. .. countries such as Vietnam, has applied online arbitration? What experiences are drawn for Vietnam? (2) Will Vietnam take advantage of strengths and overcome weaknesses in n developing online arbitration