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Giải quyết tranh chấp thương mại bằng hòa giải trực tuyến.Giải quyết tranh chấp thương mại bằng hòa giải trực tuyến.Giải quyết tranh chấp thương mại bằng hòa giải trực tuyến.Giải quyết tranh chấp thương mại bằng hòa giải trực tuyến.Giải quyết tranh chấp thương mại bằng hòa giải trực tuyến.Giải quyết tranh chấp thương mại bằng hòa giải trực tuyến.Giải quyết tranh chấp thương mại bằng hòa giải trực tuyến.Giải quyết tranh chấp thương mại bằng hòa giải trực tuyến.Giải quyết tranh chấp thương mại bằng hòa giải trực tuyến.Giải quyết tranh chấp thương mại bằng hòa giải trực tuyến.Giải quyết tranh chấp thương mại bằng hòa giải trực tuyến.Giải quyết tranh chấp thương mại bằng hòa giải trực tuyến.Giải quyết tranh chấp thương mại bằng hòa giải trực tuyến.Giải quyết tranh chấp thương mại bằng hòa giải trực tuyến.VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES HA CONG ANH BAO COMMERCIAL DISPUTE RESOLUTION BY ONLINE MEDIATION Major Economic Law Major code 62 38 01 07 SUMMARY OF DOCTORAL T.
VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES HA CONG ANH BAO COMMERCIAL DISPUTE RESOLUTION BY ONLINE MEDIATION Major: Economic Law Major code: 62 38 01 07 SUMMARY OF DOCTORAL THESIS IN ECONOMIC LAW Hanoi - 2023 THE DOCTORAL THESIS IS COMPLETED AT GRADUATE ACADEMY OF SOCIAL SCIENCES SUPERVISORS: Dr Pham Thi Thuy Nga Assoc Prof Dr Tang Van Nghia Reviewer 1: Reviewer 2: Reviewer 3: The defense at the Academy level at the Graduate Academy of Social Sciences at , The doctoral thesis can be found at: - National Library - Library of the Graduate Academy of Social Sciences Hanoi - 2023 INTRODUCTION The necessity of the research Commercial activities are increasingly developing with many new and complex forms This leads to an increase in commercial disputes in both quantity and value Types of commercial disputes are also increasingly diverse, requiring alternative dispute resolution (ADR) With the Internet really emerging as a borderless market, commercial activities have been tending to shift to the online environment Therefore, the settlement of commercial disputes must also gradually follow this trend with the emergence of online dispute resolution (ODR), i.e., dispute resolution via the internet environment with the borderless development of intangible technology and information technology ODR has been widely applied to non-judicial methods, such as negotiation, conciliation, or mediation Mediation is one of Alternative Dispute Resolution (ADR), based on the voluntary basis of the parties with the core principle of prioritizing the choice of the parties as well as the confidentiality and impartiality of the mediator Unlike court or arbitration, mediation is a nonjudicial method If one of the parties does not voluntarily implement the mediator’s recommendation, there are no enforceable tools so the virtual environment would be suitable for mediation At the same time, when commercial activities cross national borders, the issue of jurisdiction and geographical dispersion forces the parties to change to a faster and cheaper method of dispute resolution Mediation is a fast and low-cost method of dispute resolution, but it is even more effective if mediation is used in an online environment Online mediation is the use of mediation in an online environment However, online mediation is not simply a combination of mediation and electronic technology, this combination creates resonance and changes many problems of traditional mediation For example, a third party in a traditional mediation is a mediator, but now there are many companies that provide online mediation or use computer programs to act as a mediator Rules of traditional mediation mainly focus on access to justice, quality, and effectiveness Rules of online mediation are also relevant to the above elements but at different levels For example, technology will be more concerned than the factor of access to justice or how to send documents, evidence via the internet requires separate authentication processes to eliminate cybersecurity risks or the issue of enforcing a mediation’s recommendation in an online environment will be different from traditional mediation Many countries around the world, such as Europe, the United States, and Australia, have succeeded in online mediation to optimize the achievements of technology information in dispute settlement To respond to this trend, the above countries have developed legal rules to create an important legal foundation directly or indirectly for the development of online mediation UNCITRAL is also in the process of drafting a sample document on online mediation In Vietnam, mediation has been formed based on cultural factors in the business activities of traders and has been legalized in Article 312 of the Commercial Law 2005 However, until 2017, The Government issued Decree No 22/2017/ND-CP on commercial mediation (comes into effect on April 15, 2017) This is an important legal ground to promote the development of commercial mediation in Vietnam, in line with the development trend of the world The result of this Decree is the establishment of several mediation centers and registered mediators Along with the provisions of the law on electronic transactions, the Civil Procedure Code 2015 has many provisions to support online mediation, showing that the application of online mediation will be a new trend in Vietnam in the near future However, in Vietnam, the issue of commercial disputes resolved by online mediation is still quite new in terms of theory, practice, and legality Many remaining issues such as: What is the relationship between online mediation as well as traditional mediation and other dispute resolution methods? What principles should be in place for online mediation activities? What problems does online mediation pose regarding the knowledge and skills of online mediators? Is the regulatory mechanism for mediation minutes from online mediation guaranteed? To get the correct answer, it is necessary to study this issue in detail, both in theory and in practice That is the reason for the author to choose: “Resolving commercial disputes via online mediation” as the research topic of the doctoral thesis Objective and mission of research 2.1 Objective research Based on clarifying the theoretical issues of online mediation and analyzing the current situation of online mediation in Vietnam in the past time, the topic proposes directions and solutions to improve the laws on online mediation, thereby developing online mediation as a way of resolving commercial disputes in the future in Vietnam 2.2 Mission of research On the basis of the research objectives mentioned above, the thesis defines the specific missions as follows: - Clarifying theoretical issues related to disputes and commercial dispute resolution Specifically, the following issues will be clarified: Definition, characteristics, and classification of commercial disputes; characteristics of commercial dispute resolution and the role of commercial mediation - Analyzing to clarify the definition, characteristics of online mediation, and advantages, and disadvantages of online mediation in commercial disputes - Indicating the technical requirements, conditions, and legalities, the advantages, and disadvantages of the application of online mediation to resolve commercial disputes - Studying the experience of several countries around the world in resolving commercial disputes via online mediation, thereby taking lessons to Vietnam - Analyzing the legal and current situation of online mediation in Vietnam in recent years - Proposing solutions to develop and improve the laws and solutions to apply the laws on online mediation along with recommendations to promote the development of dispute resolution via online mediation in the near future Subject matters and scope of research 3.1 Subject matters The subject matter of the research is the issue of commercial disputes, commercial dispute resolution via online mediation, and the law on commercial dispute resolution via online mediation The subject matter of the research also includes Vietnamese laws, international laws, and laws of several countries on online mediation as well as the situation of commercial dispute resolution via online mediation in Vietnam and in the world 3.2 Scope or research - Substantive aspect of the Thesis: In Vietnam, commercial mediation is a method of dispute resolution applied independently or as part of the proceeding in court or arbitration However, within the scope of this dissertation, the author only studies online mediation from the perspective of an independent settlement method compared to the court or arbitration The mention of the mediation procedure in court or arbitration is only for the purpose of clarifying the theory of dispute resolution via online mediation Online mediation is a commercial dispute resolution method, so it includes many contents such as mediation principles, mediation procedures, types of mediation, and the relationship between the mediator and the dispute parties Within the framework of the thesis, the scope of research is in contents: (i) Principles of online mediation; (ii) types of online mediation; (iii) Factors to ensure the execution of online mediation - Spatial aspect of the Thesis: Online mediation is being applied popularly in European countries, and the United States as well as being strongly developed in India, Japan, and China, which are Asian countries with similar cultural values to Vietnam Therefore, the scope of research only includes European countries, the United States, China, India, and Vietnam - Scope of time: When analyzing the current situation of online mediation in Vietnam, the thesis takes the year 2005 - the year of the promulgation of the Commercial Law 2005 and the Law on ETransactions 2005 as the starting point When proposing solutions, the thesis proposes solutions and recommendations from now to 2025, and beyond, until 2030 Methodology 4.1 Methodology of research The research methodology of the thesis is Marxism-Leninism on dialectical materialism and historical materialism Ho Chi Minh's Thoughts and the perspectives of the Party and State on the development of the market economy, and trade liberalization in the context of international integration are also guidelines for the research methodology of the topic 4.2 Specific methods of research To carry out the thesis, the author uses general research methods such as the analytical method, statistical method, systematization method, interpretive method, and comparative method of jurisprudence Contributions of the research On the basis of selective research on the researchers’ results of online mediation, the thesis has the following new contributions: - First, the thesis contributes to the theory related to dispute resolution via online mediation, such as the definition, characteristics of online mediation, and necessary conditions for the development of online mediation in Vietnam - Second, the thesis studies online mediation in several counties around the world to take lessons for Vietnam - Third, the thesis analyzes the current situation of Vietnamese laws on online mediation and indicates the inadequacies and causes of those inadequacies - Fourth, on the basis of analyzing the situation of online mediation in Vietnam in the past time, the thesis points out the conditions that need to be ensured for the development of online mediation in Vietnam in the coming time - Fifth, the thesis proposes solutions to develop and improve Vietnam's law on commercial dispute resolution via online mediation and proposes specific suggestions to increase the application of online mediation to resolve commercial disputes The scientific and practical significance of the thesis - The thesis contributes to enriching the theoretical and practical basis in commercial dispute resolution via online mediation, with the meaning of a modern method of dispute resolution, suitable for the future development of the 4.0 technology revolution - The thesis is valuable reference material for Vietnamese enterprises in general and enterprises developing commercial relations at the international scale in particular when the resolution of commercial disputes via online mediation is a suitable, preeminent method to resolve disputes - The thesis is also a useful reference for dispute resolution centers in Vietnam such as courts, arbitration, and commercial mediation centers in the coming time when this method is used frequently to resolve commercial disputes The thesis is also a reference for teaching and learning the subjects of commercial dispute resolution via online mediation, commercial law, and international business law Structure of the thesis In addition to the Introduction, Conclusion, Appendixes, and List of References, the content of the thesis consists of chapters: Chapter 1: Several theoretical issues in general Chapter 2: Theoretical issues on resolving commercial disputes via online mediation Chapter 3: Legal situation and current situation of resolving commercial disputes via online mediation in Vietnam Chapter 4: Experiences of some countries and solutions to construct, improve the legal framework and strengthen the application of online mediation in Vietnam CHAPTER 1: SEVERAL THEORETICAL ISSUES IN GENERAL 1.1 Literature review On the basis of studying the works on online mediation, thereby recognizing the issues that have been researched, as well as the remaining issues on the content of online mediation, the author found that references to the content of online mediation is very diverse and rich in types such as books, scientific research topics, dissertations, theses, articles in journals, and scientific conferences These works have studied the definition, and characteristics of online mediation, factors affecting online mediation, and measures to promote the application of online mediation from different angles and perspectives, each work has its own approach but in general, all have analyzed and reflected the most basic features of the research issues, specifically as follows: 1.1.1 Research on the definition of online mediation There is no unified law that introduces the definition of online mediation but there are many research works that introduce the definition of online mediation directly or indirectly 1.1.2 Research on the characteristics of online mediation The research works on characteristics of the online mediation have a consensus view that the online mediation contains all the characteristics of traditional mediation, author Phan Thi Thanh Thuy emphasizes that these characteristics are voluntary, flexibility in the dispute resolution process, the ability to save time and money, promotion of self-determination between the parties and the noncompulsory nature of the dispute resolution agreement, this is also consistent with the view of the Robert when emphasizing the role of the parties' self-determination in the dispute, or in other words, the voluntary nature of the process 1.1.3 Research on the procedure to resolve disputes via online mediation According to Moore and Christopher W., all forms of human interaction, especially the form in which the participants have a specific goal they wish to achieve, generally follow a common pattern of development through different stages until different tasks have been accomplished and desired results have been achieved Likewise, when online mediation is identified as a method of resolving disputes, it shows flexibility in procedures and processes, however, to increase the efficiency of the process of online mediation, there have been many research works on the procedure of this dispute resolution method 1.1.4 Research on online mediation clause According to Eddie Hurter, the parties must agree in writing when selecting an ADR, whether arbitration or court, this is also regulated in the 1958 New York Convention on the Recognition and Enforcement of foreign Arbitral Awards However, with current approaches and interpretations, the written dispute resolution clause must be interpreted in a broad way, including technological elements, this is explained by Eddie Hurter through the use of the Law on Transactions and Electronic Communications in 2002 of South Africa 1.1.5 Research on elements affecting online mediation In 2009, Johnson, & Cooper examined the relationship between using different means of communication (instant messaging versus telephone) or, in other words, the impact of communication on the concession and negotiation process Current dispute resolution methods lose contextual information related to the interaction context such as stress level, escalation level, and emotional state 1.1.6 Research on the effectiveness of dispute resolution via online mediation Although the number of studies on the use of electronic intermediary services to resolve disputes is increasing, the number of studies on its effectiveness is limited 1.1.7 Studies proposing suggestions for legal framework on online dispute resolution In the current context of Vietnam, Phan Thi Thanh Thuy has proposed the issuance of a Decree on online dispute resolution to synchronize with regulations on e-commerce in Vietnam Agreeing with the issuance of a Decree to develop online dispute resolution, Tran Anh Huy also emphasizes that it is necessary to issue a Decree on electronic identification and authentication for citizens and organizations It will create a legal basis for providing and using a variety of authentication and eidentification services, contributing to ensuring the reliability of information security and safety in electronic transactions, and at the same time supplementing regulations on information security in Decree 23/2017 on commercial mediation is the first step to facilitate the formation of online mediation 1.1.8 Research on promotion of online mediation In order to promote the development of online dispute resolution in general and online mediation in particular, there are many proposals made from different angles According to Julia Hornle, ODR is "the application of information technology and remote dialogue to traditional ADR processes such as conciliation, mediation, arbitration (including other variations) Therefore, online dispute resolution is actually the offspring of alternative dispute resolution methods This process will use artificial intelligence, machines, and software to take place effectively However, people combine both online and offline technology to resolve actual disputes” 1.2 General comments on the literature review As mentioned above, domestic and foreign research works have approached and analyzed many different angles of dispute resolution via online mediation 1.3 Research theory The thesis is written on the basis of collecting relevant documents with inheritance and selective absorption of theories and views of researchers and experts in specific fields of economics and business: Economic Analysis of Law; The theory of Party autonomy; Theory of Business ethics; Theory of Responsible business; Theory of trade liberalization; Theory of negotiation 1.4 The research questions, hypotheses, and expected research results The research question revolves around main groups of issues: A group of problems on the theory of commercial dispute resolution and online mediation; A group of issues on the current situation of commercial dispute resolution via online mediation in Vietnam and a group of issues on the promotion of online mediation to resolve commercial disputes in Vietnam Specifically, the research questions and hypotheses are as follows: Question 1: The differences between online mediation and traditional mediation? The contents of the law on online mediation? Hypothesis 1: Commercial dispute resolution via online mediation is a special method of mediation when the resolution is taken place in an online environment Commercial mediation by mediation is a special method of mediation Especially shown in the online customs clearance Although both are based on the theories and provisions of mediation, when incorporating the online element into mediation, creates unique characteristics for this method Legal issues may arise related to the online element that is the subject of the arbitration, regarding the principle of information security, the evidence during the mediation process, the mediator's skills, and the recognition and enforcement of online mediation decisions Expected research results: systematize and supplement the theory related to online mediation, such as definition, characteristics, principles, and legal issues arising from online mediation Question 2: What are the successes and shortcomings of Vietnam's law and the current situation on online mediation? Hypothesis 2: Dispute resolution via online mediation is suitable for disputes in e-commerce with small dispute value With the convenience and speed of electronics when applied in commercial activities, it will spread to online mediation for e-commerce activities The development of ecommerce is also based on the trust of the parties in borderless transactions, so trust will also be an important basis for the development of mediation to resolve e-commerce disputes In addition, disputes of small value will be suitable for online mediation because the parties will accept convenience in exchange for risks Expected research results: analyze and prove that e-commerce disputes with small dispute values will be suitable for online mediation Question 3: To develop online mediation in Vietnam in the coming time, how should the law and practice of applying online mediation be supplemented and revised? Hypothesis 3: In order for online mediation to become quick, convenient, and effective, it is necessary to have an appropriate legal framework for online mediation to resolve commercial disputes Accordingly, this legal framework not only ensures the specificity of Vietnamese law but also meets the requirements of judicial reform and international integration requirements of Vietnam Expected research results: Analyze the current situation of Vietnam's law on online mediation and point out the inadequacies and causes of the inadequacies On that basis, the thesis proposes suggestions and solutions to develop, and comprehend Vietnam’s law on dispute resolution via online mediation to increase the application of online mediation in the coming time Hypothesis 4: The experience of dispute resolution via online mediation in a number of countries within the scope of the study will be selected and proposed to be absorbed in order to amend and supplement relevant regulations for the improvement of Vietnam's law on dispute resolution via online mediation Expected research results: Take lessons for Vietnam from studies on online mediation in a number of countries Conclusion of Chapter 1: In the inevitable development trend of technology, online mediation has been studied by many scientists in many countries Aspects of mediation from the characteristics, content as well as legal regulations related to this method of dispute resolution considered the fundamental principle for the process of dispute resolution via mediation, so no matter what form of mediation process takes place, these original principles still need to be focused - Voluntary principle; Principle of neutrality; The principle of equality; Principle of selfdetermination; Principle of Final Judgment In addition to the principles mentioned above, the appearance of online mediation will make some of the principles of mediation unique when applied to online mediation The principles listed below are equally important and are considered an interwoven and interdependent framework - Ethical principle; Principles of access; Principle of empowerment; Principles of confidentiality; The principle of honesty; Principles of understanding; Principles of relevant information; Principle of integration 2.2.6 Advantages and disadvantages of commercial dispute resolution via online mediation 2.2.6.1 Advantages of online mediation - Convenience and cost-effectiveness; No interference; The absence of actual conversation; Absence of the complexity of the issue of authority - Anonymous parties; Limit issues related to the attitudes, feelings, and behaviors of the parties 2.2.6.2 Disadvantages of online mediation - Some difficulties in identifying information; Security issue - Lack of human interaction; Limited variety of dispute forms - Internet access problem; Online mediation is still relatively new 2.3 Factors affecting online mediation and conditions for securing online mediation 2.3.1 Factors affecting online mediation 2.3.1.1 Legal framework 2.3.1.2 Cultural environment 2.3.1.3 Socio-Economic environment 2.3.1.4 Trade globalization and international integration 2.3.2 Conditions for securing online mediation 2.3.2.1 Conditions on information technology and internet infrastructure 2.3.2.2 Conditions on human resources 2.3.2.3 Conditions on finance 2.4 Law on online mediation 2.4.1 Definition of law on online mediation The law on online mediation is "the sum of legal regulations promulgated or recognized by the State to regulate relations arising from resolving disputes via online mediation" 2.4.2 Characteristics of law on online mediation Firstly, the process of forming legal regulations on online mediation appeared due to the development of information technology and the internet Second, the provisions of online mediation must be based on the choice of the parties 11 Third, the disputes are resolved by online mediation including online and offline Fourth, the regulations on the subjects participating in the online mediation will be more diverse Fifth, regulations on online mediation must create friendliness and flexibility with the parties Sixth, strict regulations on network security, safety, and confidentiality Seventh, towards the harmonization of international law 2.4.3 Contents of law on online mediation 2.4.3.1 Clause on online mediation A clause on online mediation must regulate the signing method, archiving, and electronic form of this agreement 2.4.3.2 Privacy and confidentiality In a clause on online mediation, it is important to make a clear separation between information security, data security, system security, and user privacy In terms of data security, it is the process of protecting information through the mass media, software, browsers, and even hardware used to execute online mediation 2.4.3.3 Mediator and parties in mediation The parties have the right to choose a mediator to resolve disputes, the expertise, skills, and ethics of the mediator in the dispute resolution process are decisive in each dispute It is because of this importance that the law in general and the mediation centers need to stipulate the criteria and conditions for the mediator 2.4.3.4 Online mediation process As a dispute resolution method based on the choice of the parties, the online mediation process is very flexible, depending on the established mediation centers, so the provisions of the law should only orient, and create a basis to help these centers develop an appropriate online mediation process 2.4.3.5 Organization and missions of centers providing online mediation In order to provide online mediation services, it is required that these service providers meet the requirements of organization, resources, and technology 2.4.3.6 Evidence in online mediation With the online form, the evidence in the online mediation is more transparent than the traditional mediation, because these pieces of evidence are fully public to the parties and backed up and stored in online platforms with high security 2.4.3.7 Recognition and enforcement of decisions of online mediation After the agreed time, if the parties come to a final agreement, a decision on successful mediation will be made The mediation decision can be made in writing or by means of a data message signed by the mediators and the parties In case the decision is made in writing, the laws of other countries as well as in Vietnam have specific regulations guiding the recognition and enforcement However, if it is expressed in the form of electronic tools, these decisions will face some difficulties or need to go through some procedures to be recognized as legally valid 12 CHƯƠNG 3: LEGAL SITUATION AND CURRENT SITUATION OF RESOLVING COMMERCIAL DISPUTES VIA ONLINE MEDIATION IN VIETNAM 3.1 Legal situation of dispute resolution via online mediation in Vietnam 3.1.1 Legal rules on online mediation Until now, Vietnamese laws not have specific rules on online mediation However, based on provisions for commercial mediation and electronic transactions, online mediation is also regulated in the following legal aspects 3.1.1.1 Mediation agreement In order to use online mediation in Vietnam, the parties must first have a mediation agreement and it must be in writing Although not directly stipulating the online mediation agreement, the mediation agreement is an agreement between the parties on the dispute resolution that may arise or has arisen via the mediation method 3.1.1.2 Privacy and Confidentiality Confidentiality is stipulated as one of the principles of dispute resolution via mediation in Vietnam unless the parties agree in writing or otherwise provided by law (Article Decree 22/2017 on commercial mediation) 3.1.1.3 Mediators and parties in online mediation The mediator plays an important role in determining the success or failure of a mediation session In which the knowledge and skills of the mediator are considered an important factor to exploit and connect the parties together When executing mediation in the online environment, there will be a difference The parties in the mediation according to the current regulations, in addition to the mediator and the mediation center, also have the parties in the dispute 3.1.1.4 Online mediation process With the feature of flexibility in mediation, the current Vietnamese law does not have regulations on the process and order of mediation in general as well as online mediation in particular The Decree on commercial mediation grants the right to develop the mediation process for the centers based on the mediation rules or the parties agreeing on the order and procedures of mediation 3.1.1.5 Organization and missions of mediation centers providing online mediation The current Vietnamese law does not have specific regulations on the organization and management of mediation centers providing online mediation services Therefore, centers that are providing online mediation services are only subject to the same regulations as ordinary mediation centers, whereby these centers are legal entities, operating for non-profit purposes, with the organizational structure set by the center’s charter The center’s charter stipulates that the President of the center must be a commercial mediator 3.1.1.6 Evidence in online mediation In mediation, there are usually no provisions for evidence as well as procedural review Therefore, the problem of evidence according to an interviewing expert is not a big problem for mediation 13 3.1.1.7 Recognition and enforcement of decisions of online mediation With the characteristics of depending on the will of the parties in the mediation process, so only when a mediation decision is issued, it will it be binding on the parties of the dispute The process of recognition and enforcement of commercial mediation decisions in Vietnam is regulated in Decree 22/2017 on commercial mediation and the Civil Procedure Code 2015 3.1.2 Comments on the legal situation 3.1.2.1 Positive points - Mediation is part of the strategy of developing and implementing the law on dispute resolution in Vietnam, which is a premise for online mediation to be approved; - Access and refer to international legal documents to nationalize Vietnamese law, thereby creating a premise for the application of online mediation; - Actively building a legal system on mediation in general and commercial mediation in particular; - The legal framework on e-transactions is quite complete and is continuously supplemented to support the development of online mediation; - Paying attention to the development of a method of dispute resolution by cross-border mediation; - There are several regulations related to electronic data and the application of information technology in the process of dispute resolution as well as regulations on the recognition and enforcement of mediation decisions - The legal system to protect consumers' interests has regulations on online mediation - Vietnam recognizes foreign commercial mediation centers 3.1.2.2 Inadequacies and causes - Vietnam's law does not have specific regulations on ODR in general and online mediation in particular - Although the legal system of commercial mediation has been built, it is not comprehensive enough - Inadequacies in the content law on e-commerce will hinder the development of online mediation - Inadequacies in recognizing the legal value of electronic signatures - Regarding the collection and evaluation of evidence, there is no guiding document, so it is difficult to apply in practice - Some regulations on electronic transactions with courts are still relatively complicated and difficult for consumers and small and medium enterprises - The issue of nationalizing international conventions or directly recognizing and applying international practices on ODR in general and online mediation, in particular, is an unsolved problem 3.2 The current situation of commercial dispute settlement by online mediation in Vietnam 3.2.1 Number of online mediation cases The online dispute resolution method has been established and developed in many countries around the world, the United States is one of the first countries to develop an online dispute resolution method to meet the demand for dispute resolution on e-commerce with the success of the Squaretrade 14 model and began to spread to other countries from developed countries in Europe to developing countries in Asia and Africa In Vietnam, the "explosion" of Industry 4.0 has also made the topic of online dispute resolution interesting in recent years According to statistics from the Ministry of Justice, the preferred method of dispute resolution that enterprises and individuals use is negotiation (57.8%), the court (46.8%), mediation (22.8%), and finally arbitration (16.9%) In addition, in a survey in 2015 about the needs of enterprises for commercial mediation provided by the Vietnam International Arbitration Center (VIAC) and the International Finance Company (IFC), 78% of surveyed enterprises are willing to try using mediation; 58% are willing to pay the mediation fee from 6,000,000 VND or less, 15% are willing to pay 12,000,000 VND or more) It can be said that, through surveyed data, commercial mediation promises to be a potential method that enterprises will prioritize in the future However, in practice, the number of disputes resolved by mediation in general and online mediation in particular at the centers is not much 3.2.2 Situation of organizations providing online mediation services The number of organizations and mediators providing mediation services is increasing rapidly; The online mediation agreement issued by the centers in the mediation rules; The online mediation process is actively developed by mediation centers; Online platforms built by mediation centers; The combination of mediation and arbitration has been developed by the centers; Regulations on mediators are also developed by the centers; Some centers focus on training mediators; Centers focus on confidentiality in the online mediation process; The Centers stipulate the form of the online mediation results 3.2.3 Current situation of online mediation of e-commerce platforms in Vietnam - Vietnamese e-commerce platforms all have regulations on online mediation - E-commerce platforms apply automatic mediation functions - Online mediation is suitable for e-commerce disputes of small value - Support from the government in the development of cross-border dispute resolution 3.2.4 Comments on the situation of online mediation in Vietnam 3.2.4.1 Successful results - A basic information technology foundation that meets the conditions to apply online mediation - The rapid development of e-commerce in Vietnam has promoted the need to apply ODR in general and online mediation in particular - Online mediation has attracted the attention and investment of a number of mediation and arbitration centers - The centers that provide mediation services have been well aware of the differences between online mediation mediators and traditional mediation 3.2.4.2 Inadequacies and causes - The speed of development of ICT and technology infrastructure is still limited - The number of mediation centers operating in general and implementing online activities is still limited 15 - The cost of identifying evidence in the process of online mediation is not small - Enterprises have not properly assessed the importance of online mediation arising in e-commerce - Consumers are not fully aware of the issue of dispute resolution, making complaints to protect their interests - Language barriers for transactions involving foreign elements - Network security issues - Information security issues - There is no training course on skills for online mediation 16 CHƯƠNG 4: EXPERIENCES OF SOME COUNTRIES AND SOLUTIONS TO CONSTRUCT, IMPROVE LEGAL FRAMEWORK AND STRENGTHEN THE APPLICATION OF ONLINE MEDIATION IN VIETNAM 4.1 Experiences of some counties and lessons for Vietnam 4.1.1 India 4.1.1.1 Legal Basis for the Development of Online Mediation in India Online mediation is not directly regulated in the Indian legal system However, on the basis of the legal background available in India, online mediation is recognized on legal grounds 4.1.1.2 Platforms that apply online mediation to resolve online disputes Starting with dispute resolution via email, India is in the process of incubating online dispute resolution platforms Online dispute resolution in India is still in its infancy, but it's growing in popularity 4.1.1.3 Challenges for the development of online mediation in India - India is promoting the use of online mediation to resolve disputes, especially in the areas of ecommerce and banking - A low number of Internet users and low education in India will be a barrier to the development of online mediation - Online mediation also raises some security issues - Mediation has not really become the preferred method in commercial dispute resolution - Legislature still doesn't really understand mediation 4.1.1.4 Lessons learned from the construction and development of online mediation in India From the analysis and comments on online mediation and the practical application of online mediation in India, we can take some lessons as follows First, in order for online mediation to be developed, it is necessary first of all to build a synchronous legal framework Second, the Government needs to come up with specific policies to encourage the development of online mediation Third, focus on security and privacy issues in the process of using online mediation Fourth, raise awareness of law drafting authorities on mediation in general and online mediation in particular Fifth, actively participate in international conventions on mediation Sixth, the Government as well as private companies need to promote propaganda activities and introduce this method to domestic and foreign users This not only reduces the judicial burden on countries but is also the key to facilitating the maintenance and development of international relations 4.1.2 European Union 4.1.2.1 Construction and execution of online mediation of the European Union - Develop legal regulations for online mediation based on traditional mediation 17 - Promulgating specific regulations on online mediation - Execute online mediation based on ODR platform - Focus on technical testing and platform friendliness - Requires the participation of merchants participating in the online market - Encourage the participation of consumer associations and enterprise associations - Pay attention to the protection of personal information of the parties of the disputes - Encourage the construction of private online mediation 4.1.2.2 Lessons learned from the European Union Based on the EU's practical research, some experiences can be drawn to build and develop online mediation activities as follows: - First, build trust for online transactions - Second, promulgate separate regulations for online mediation based on the available foundation of the law on mediation - Third, mastering technology is an important factor in implementing online mediation - Fourth, information security, users’ data is always targeted - Fifth, it is necessary to attract the attention of relevant parties - Finally, promote the development of a private dispute settlement mechanism 4.1.3 Japan 4.1.3.1 Basis for the construction of online mediation in Japan - Building e-government as the driving platform for online transactions - E-commerce thrives in Japan but has potential disputes - Methods of dispute resolution have not met the requirements of the user - Lack of consumer protection mechanism for online transactions in Japan - Japan's culture of trust is the driving force for companies to provide online mediation services 4.1.3.2 Legal basis for the execution of online mediation in Japan - Act on Promotion of Specified Non-profit Activities is the basis for organizations providing non-profit online mediation - The Basic IT Law is the foundation for the development of e-commerce in general and online mediation in particular - The contract law recognizes the value of electronic transactions to facilitate the development of online transactions - Law on electronic signatures to help identify parties in online transactions - Commercial law in the direction of requiring business identification to create a basis for promoting trust in using online dispute resolution - Building a legal system on ADR to create a foundation for the development of online dispute resolutions 4.1.3.3 Situation of online mediation in Japan 18