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Tiêu đề Arbitration-Med-Arb Model: International Practice And Applicability In Vietnam
Tác giả Le Hong Nhung
Người hướng dẫn Assoc. Prof, Dr. Nguyen Minh Hang
Trường học Foreign Trade University
Chuyên ngành Economics
Thể loại thesis
Năm xuất bản 2019
Thành phố Ha Noi
Định dạng
Số trang 123
Dung lượng 645,06 KB

Cấu trúc

  • 1. Rationale (10)
  • 2. Literature review (11)
  • 3. Research questions (13)
  • 4. Research’s objective (14)
  • 5. Scope of study (15)
  • 6. Methodologies (16)
  • 7. Research disposition (17)
  • CHAPTER 1: THEORETICAL FRAMEWORK (18)
    • 1.1. Alternative dispute resolutions (18)
      • 1.1.1. Background (18)
      • 1.1.2. Definition (20)
      • 1.1.3. Methods and forms of ADR (22)
      • 1.1.4. ADR and litigation (22)
    • 1.2. Mediation (25)
      • 1.2.1. Rationale of mediation (26)
      • 1.2.2. Definition and process (27)
      • 1.2.3. Stages of commercial mediation (29)
      • 1.2.4. Types of commercial mediation (32)
      • 1.2.5. International organization’s activities for commercial mediation (33)
      • 1.2.6. Advantages and disadvantages of commercial mediation (36)
    • 1.3. Arbitration (37)
      • 1.3.1. Rationale of arbitration (37)
      • 1.3.2. Definition and process (38)
      • 1.3.6. Benefits and drawbacks of commercial arbitration (44)
    • 1.4. The key differences between mediation and arbitration (45)
    • 1.5. The understanding of arb-med-arb model (48)
  • CHAPTER 2: INTERNATIONAL EXPERIENCE ON APPLYING ARB- MED-ARB MODEL: STUDY OF SINGAPORE (51)
    • 2.1. Singapore’s development in mediation and arbitration (51)
      • 2.1.1. Singapore’s development in mediation (51)
      • 2.1.2. Singapore’s development in arbitration (54)
    • 2.2. Singapore's Arb-Med-Arb model (59)
      • 2.2.1. SIAC-SIMC Arb-Med-Arb Protocol (59)
      • 2.2.2. Procedure of Singapore’s Arb - Med - Arb model (61)
      • 2.2.3. Advantages of Arb - Med – Arb (64)
  • CHAPTER 3: APPLICABILITY OF AMA MODEL IN VIET NAM AND (69)
    • 3.1. Vietnam’s approach on applying Arb – Med - Arb model (69)
      • 3.1.1. Vietnam economy review (69)
      • 3.1.2. Vietnam development in commercial mediation and arbitration (72)
      • 3.1.3. Arb-Med-Arb applicability in Viet Nam and issues (83)
    • 3.2. Recommendations for Viet Nam (88)
      • 3.2.1. For Government (88)
      • 3.2.2. For associations and enterprises (98)
    • 1. Conclusions (100)
    • 2. Limitation of research (101)
  • Firgue 3.2: Procedure of Singapore Arb-Med-Arb model (0)

Nội dung

61 Trang 7 AMA Arbitration-Mediation-Arbitration ARB-MED-ARB Arbitration-Mediation-Arbitration CMC Community Mediation Centres FDI Foreign Direct Investment HKMAAL Hong Kong Mediation

Rationale

The 21st century is often referred to as an era of connection and cooperation, exemplified by the global nature of technology production For instance, smartphones and high-tech computers consist of components sourced from various countries, which are then assembled into final products and distributed worldwide This process highlights the essence of international trade at its peak.

Advanced technologies have transformed international trade by minimizing barriers to global advertising, enabling near-instant communication, and facilitating swift delivery of products and services Consequently, technology has redefined the concept of "globalism."

While technology plays a significant role in globalism, there are aspects where it falls short, particularly in the realm of complex international business contracts These agreements often include extensive, meticulously negotiated clauses tailored to each party's commercial needs Furthermore, there is a growing recognition among parties of the importance of incorporating a well-drafted dispute settlement clause to effectively address potential conflicts.

As technology advances, dispute resolution mechanisms have evolved to embrace globalization, with arbitration emerging as a preferred alternative to traditional court procedures Arbitration is often seen as more efficient and flexible, providing parties with confidentiality Additionally, a significant advantage of arbitration is the ease of enforcing arbitration awards, which are generally more readily enforceable than judgments from foreign courts.

The key question surrounding dispute settlement clauses is whether we have reached the pinnacle of their development or if arbitration and alternative dispute resolution clauses can still be improved Recognizing this need, the Singapore International Arbitration Centre (SIAC) and the Singapore International Mediation Centre (SIMC) have introduced a novel dispute settlement model This innovative approach, known as the Singapore Arb-Med-Arb Protocol (AMA Protocol), combines the benefits of both arbitration and mediation, offering a more effective resolution process.

The AMA Clause allows parties to choose to settle disputes by method of arbitration to deal with their differences or by mediation before reaching arbitration

A multi-tiered clause is a type of arbitration clause that integrates both mediation and arbitration processes, enhancing the likelihood of dispute resolution through goodwill and positive dialogue This approach encourages constructive negotiations prior to engaging in a complete arbitration procedure.

This thesis explores the advantages of the Arb-Med-Arb model for dispute resolution and its potential applicability in Vietnam The author aims to evaluate whether Vietnam can effectively implement this innovative approach to enhance its dispute settlement mechanisms As a Master's student specializing in International Trade Policy and Law, the author is committed to contributing knowledge toward improving Vietnam's dispute resolution processes in alignment with global standards.

Literature review

Despite the global evolution of commercial mediation and arbitration, Vietnam's practices in these areas remain relatively underdeveloped and unfamiliar to many The Arbitration-Mediation-Arbitration model has not been extensively researched or implemented in Vietnam, making this study's focus particularly novel Consequently, there are no existing similar topics at the time of this paper's completion The author aims to review relevant experiential research from both Vietnamese and international sources to provide a comprehensive understanding of the subject.

Nguyen Trung Nam and Trinh Nguyen (2017) explore the complexities of mediation and arbitration in commercial and construction disputes under Vietnamese law, highlighting key issues and offering recommendations for improving dispute resolution methods Their research advocates for a multi-tiered dispute settlement mechanism, incorporating various Alternative Dispute Resolution (ADR) procedures, and emphasizes the innovative Arb-Med-Arb approach developed in Singapore This study aims to enhance the efficiency and enforceability of resolving construction conflicts through advancements in commercial mediation, addressing both historical and contemporary challenges in Vietnam's construction dispute landscape.

In their 2018 article, "Arb-med-arb in cross-border disputes," Financier Worldwide Magazine highlights the concept of multi-tiered dispute resolution, which offers multiple pathways for resolving disputes within a single procedure This approach integrates various methods, such as mediation and arbitration, to create a flexible mechanism for dispute settlement The authors also discuss the advantages and limitations of the AMA Protocol, providing valuable insights into its application in cross-border conflicts.

The article by Bryan Cave Leighton Paisner (2015) examines Singapore's innovative "Arb-Med-Arb" protocol, analyzing the functioning of the SIMC-SIAC framework It evaluates the advantages and disadvantages of integrating this modern dispute resolution method into commercial contracts, highlighting its potential impact on the efficiency of conflict resolution in Singapore's legal landscape.

Anindya Basarkod and Dr Markus Altenkirch's 2018 paper, "Arb-Med-Arb: What is it and How Can it Help the Parties to Solve Their Disputes Efficiently?" explores the innovative dispute resolution method known as Arbitration-Mediation-Arbitration (Arb-Med-Arb) This approach offers significant advantages for conflicting parties by streamlining the resolution process and enhancing efficiency in settling disputes.

Daniel Chong and Sharon Lin (2018) explore the concept of "Arb-Med-Arb," highlighting the essential differences between arbitration and mediation Their study emphasizes the advantages of utilizing this hybrid approach, which combines the benefits of both dispute resolution methods The authors argue that understanding these distinctions can guide individuals in choosing the most effective process for resolving conflicts.

Arb-Med-Arb to solve the dispute and a sample of Arb-Med-Arb clause are also mentioned in this research

This review focuses on key aspects of dispute resolution, particularly the Arb-Med-Arb model, as highlighted in previous research While many studies outline the advantages of this model, they often overlook its application in Asian countries like Vietnam The 2017 study “Mediation – Arbitration in Commercial and Construction Disputes” by Nguyen Trung Nam and Trinh Nguyen addresses issues related to construction dispute settlement under Vietnamese law and provides recommendations However, it fails to define the Arb-Med-Arb model, its characteristics, and its significant advantages.

Currently, there is a lack of comprehensive research on the Arb-Med-Arb model and its application as a multi-tiered dispute settlement mechanism in Vietnam This article aims to underscore the general advantages of this dispute resolution method while addressing the critical question: "How can we effectively implement Arb-Med-Arb in Vietnam?"

Research questions

This study addresses key questions regarding the Arb-Med-Arb protocol, including its definition, the countries that have implemented this clause, and the necessary steps for Vietnam to adopt this model in the future To explore these inquiries, we will examine several sub-questions that will guide our research.

- What are the basic principles of arbitration and mediation?

- What are the differences between arbitration and mediation?

- How can Arb-Med-Arb help the parties to solve their disputes in Singapore?

- What are the benefits of Arb-Med-Arb model?

- How can Viet Nam apply Arb-Med-Arb model?

- What are implications for Viet Nam?

Research’s objective

Arbitration and mediation are increasingly utilized globally as effective alternatives to traditional court proceedings for resolving disputes These methods of alternative dispute resolution offer significant advantages, and when combined, they provide even greater benefits for parties seeking amicable solutions.

Vietnam's focus on international economic integration is a key priority for its future, as outlined in Resolution No 22-NQ/TW dated April 10, 2013 This integration not only aims to enhance economic development but also supports national defense, security, and cultural identity To achieve this, Vietnam is implementing a coordinated global integration strategy that aligns with its capabilities By 2018, the country had successfully negotiated over ten regional free trade agreements (FTAs), including significant commitments related to trade barriers, with plans to sign additional agreements like the EVFTA and RCEP The structured roadmap for tariff reductions spans ten years for each agreement, contributing to a remarkable increase in international trade transactions and import-export turnover.

Vietnam must take immediate action to address unexpected business disputes and safeguard its enterprises in the international market Currently, there is a lack of a legal framework and specific clauses regarding the Arbitration-Mediation-Arbitration model This thesis will emphasize the need to develop these legal structures to better protect Vietnamese businesses.

- Systematize the basic principles of two alternation dispute resolution method: arbitration and mediation and the key differences between these approaches

- Understanding how Arbitration - Mediation – Arbitration model works ;

- Get deeper understanding on the way Singapore apply this protocol to resolve conflict in business and the advantages of this model

Vietnam faces significant challenges in implementing effective dispute settlement mechanisms To address these difficulties, it is essential for the government to consider strategic proposals that enhance arbitration and mediation services By fostering collaboration among service providers, the Vietnamese authorities can create a more robust framework for resolving disputes, ultimately promoting a more efficient and reliable legal environment.

Scope of study

Alternative dispute resolution methods, including negotiation, arbitration, mediation, and the med-arb model, are effective across various dispute categories such as civil, family, and commercial disputes Research indicates that these methods, particularly arbitration and mediation, provide optimal solutions for commercial disputes, which are crucial for a nation's economic development This study emphasizes the arbitration-mediation-arbitration model as a key approach to resolving commercial disputes effectively.

The study focuses on the Arb-Med-Arb model of Singapore, highlighting its advantages as a novel approach to dispute resolution, uniquely implemented in Singapore It also examines Vietnam's recent advancements in commercial mediation and arbitration, including legislative developments and increased awareness Ultimately, the research aims to assess the current state of arbitration and commercial mediation in Vietnam, proposing strategies for adopting the Arb-Med-Arb model in accordance with international standards and best practices.

This research will examine the period from the early 20th century to the present, focusing on Singapore and Vietnam, which have experienced a more recent phase of mediation compared to other developed nations Additionally, it will incorporate various legal documents related to commercial mediation and arbitration from international organizations dating from the late 19th to the early 20th century.

Methodologies

This thesis employs both theoretical and practical research methods The theoretical approach incorporates analytical and synthesis methods, alongside a review of relevant laws and regulations to meet the project's research requirements In contrast, the practical research method primarily utilizes expert interviews in the fields of international arbitration and mediation, as detailed in Appendix 1.

The analysis in this thesis primarily relies on secondary data sourced from reports and research conducted by experienced professionals and organizations in the fields of arbitration and mediation Due to the novelty of the arbitration-mediation-arbitration model in Vietnam, along with the author's constraints of time and resources, gathering primary data for this study proves to be challenging.

Chapter 2 delves into the analytical and synthesis research methods, focusing on the theoretical framework that distinguishes between theory and fact It examines the legal frameworks surrounding mediation and arbitration, both in general and in terms of internal coordination specific to the arbitration-mediation-arbitration model This analysis aims to uncover international and domestic practices while highlighting the potential opportunities for applying arbitration effectively.

In Vietnam, the incorporation of mediation and arbitration clauses is essential for effective dispute resolution This article explores various cases of arbitration and mediation applied in Singapore, providing valuable insights and experiences for Vietnam By analyzing these cases, Vietnam can enhance its approach to dispute settlement in the future, particularly in similar contexts.

In Chapter 1, the author explores the international application of the arbitration-mediation-arbitration model, focusing on Singapore's practices By employing a synthesis method and referencing relevant laws and regulations, the study highlights key experiences and draws implications for Vietnam's legal framework.

Chapter 2 discusses the applicability of the arbitration-mediation-arbitration model in Vietnam, utilizing a reference method to identify inconsistencies within the country's laws and regulations Additionally, a synthesis method is employed to draw conclusions from the thesis and propose new avenues for exploration.

Interviews are carried out with some experts and associations to show the applying method and give recommendations for Chapter 3.

Research disposition

Beside the table, chart lists, reference and appendix, the main content of the thesis includes the followings:

- Chapter 2: International experience on applying arb-med-arb model: study of Singapore

THEORETICAL FRAMEWORK

Alternative dispute resolutions

The World Bank Group highlights that Alternative Dispute Resolution (ADR) stems from traditional practices across various cultures, particularly in Asia, where the emphasis on harmony plays a crucial role in resolving conflicts.

The modern origins of Alternative Dispute Resolution (ADR) are widely recognized to be in the United States, where it first emerged to address civil rights issues through mediation and alleviate the burden of overloaded courts Since its inception, ADR has evolved significantly, gaining institutional support from the government, legal organizations, and academia In 1990, federal district courts were mandated to implement plans aimed at reducing litigation costs and delays, leading to the establishment of various ADR processes across these courts This innovation and the requirement for mandatory ADR in both state and federal systems have contributed to the growing interest in ADR, positioning the United States as a leading source of knowledge in court-connected ADR practices (USAID, 1998).

In the late 1980s, the demand for commercial Alternative Dispute Resolution (ADR) in the United States surged as businesses sought more effective alternatives to traditional litigation This led to significant advancements in ADR models, including negotiation, mediation, and arbitration The institutionalization of ADR has transformed legal practices and rules, incorporating US regulations, public consultation, and administrative dispute resolution into its framework.

The United States continues to lead in the field of Alternative Dispute Resolution (ADR), influencing many countries that adopt or adapt its practices Nations worldwide are integrating American methods with their own dispute resolution traditions to address a variety of issues, including commercial, social, civil, and political disputes Notably, developing countries like Vietnam are actively implementing ADR to enhance their dispute settlement processes.

The trend of Alternative Dispute Resolution (ADR) has significantly influenced China, particularly Hong Kong, as dissatisfaction with traditional litigation and arbitration has spread from the United States Critics have highlighted the limitations of conventional dispute resolution methods, leading to the rise of ADR This development is further supported by China's unique cultural emphasis on consensus and non-adversarial approaches, encapsulated in philosophies such as "better bend than break" and the idea that "willows are weak yet they bind others' wood." In Chinese society, maintaining face and preserving business relationships are paramount, which has fostered the growth of ADR, especially in trade While the U.S ADR model has a global impact, China's approach holds particular significance for Asia and Southeast Asia.

Singapore has emerged as a pioneer in alternative dispute resolution (ADR) in Southeast Asia, influenced by trends from the US The necessity for ADR stems from the limitations of traditional litigation, particularly evident in the early 1990s when Singapore's courts were overwhelmed with case files, including over 2,000 cases pending resolution in the Supreme Court and more than 10,000 inactive cases, some unresolved for over a decade Approximately 44% of cases took 5-10 years to initiate, while appeals required an additional 2-3 years for hearings This significant latency not only affects the life expectancy of individuals involved but also highlights the inefficiencies of the judicial process Consequently, the Singapore judiciary implemented ADR to alleviate court congestion and provide timely support for claimants in need (Judith Prakash, 2009).

The thesis outlines the origins of Alternative Dispute Resolution (ADR) in the United States and its influence on neighboring countries like China and Singapore, which share similar motivations for adopting ADR due to the limitations of litigation and court proceedings It will further define ADR and its significance in resolving disputes effectively.

According to Yona Shamir, ADR is defined as:

“Alternative Dispute Resolution (ADR, sometimes also called

Appropriate Dispute Resolution (ADR) encompasses various techniques designed to resolve conflicts without confrontation It includes direct negotiations between parties for mutual agreement, as well as formal methods like arbitration and adjudication, where an external party determines the outcome Mediation, situated between these extremes, involves a neutral third party facilitating a resolution that satisfies all involved.

Alternative dispute resolution (ADR) is often referred to as dispute settlement, which more accurately reflects its essence The primary aim of dispute resolution is to enhance social interactions (Park and Burger, 2009) This process addresses conflicts, enabling individuals and businesses to maintain their relationships Rooted in Latin, the concept emphasizes the importance of resolving disputes for both personal and societal harmony Without effective dispute resolution, social cohesion becomes challenging.

Or even the Great Gandhi once said:

Throughout my two decades of legal practice, I came to understand that a lawyer's primary role is to facilitate unity among parties This insight profoundly influenced my work, leading me to focus on achieving private compromises in numerous cases In this pursuit, I gained invaluable experience and maintained my integrity, ultimately finding fulfillment without sacrificing my values or financial stability.

What the thesis tries to say, all are in the words of the former US Chief Justice, Warren Burger:

Our profession's primary duty is to act as healers of human conflict To honor this obligation, we must implement solutions that yield satisfactory outcomes efficiently, minimizing both costs and stress for those involved This encapsulates the essence of justice.

Source: (Chief Justice Warren Burder, 1997)

In conclusion, Alternative Dispute Resolution (ADR) encompasses various methods for resolving legal disputes, addressing the delays often encountered in traditional court systems These alternative approaches enable disputing parties to settle conflicts efficiently and cost-effectively, while still complementing the judicial process Both nationally and internationally, ADR is gaining traction in legal and commercial sectors, applicable to a wide range of disputes, including civil, family, and commercial matters Research indicates that ADR methods are particularly effective in resolving trade disputes, which are crucial for a country's economic development (Shodhganga, 2018).

Obviously, ADR is not a new concept, but novelty lies in the proliferation of its model:

Alternative dispute resolution (ADR) methods have been utilized by societies globally for centuries, relying on non-judicial and indigenous practices to address conflicts Recently, there has been a significant rise in the promotion and implementation of various ADR models, along with an increase in court-connected ADR initiatives Furthermore, ADR is increasingly recognized as a valuable tool for achieving broader objectives beyond merely settling individual disputes.

1.1.3 Methods and forms of ADR

ADR systems can often be categorized into negotiation, mediation or mediation systems and arbitration According to the USAID study in 1998, the thesis summarized the following categories:

The negotiation process serves as a platform for direct discussions between conflicting parties without third-party involvement In contrast, mediation and reconciliation involve a third party who assists in resolving specific conflicts or improving relationships While mediators facilitate communication and help structure agreements, they do not have the authority to make decisions Ultimately, arbitration empowers a third party to make binding decisions on the dispute resolution.

It is crucial to distinguish between binding and non-binding Alternative Dispute Resolution (ADR) methods Non-binding processes, such as negotiation, mediation, and reconciliation, emphasize the parties' willingness to achieve consensus In contrast, arbitration can be either binding or non-binding; a binding arbitration results in a decision that parties must adhere to, similar to a court ruling, while a non-binding arbitration allows the parties to choose whether to follow the third-party decision.

Mediation

Mediation is defined by the International Mediation Institution as negotiation facilitated by a trusted neutral person, known as the mediator The mediator's role is to assist parties in resolving issues and reaching a consensus, which may include finalizing agreements, resolving disputes, enhancing communication, and improving relationships Additionally, mediation encompasses two key features that further highlight its effectiveness and versatility in conflict resolution.

Mediation is a confidential process that ensures discussions and agreements remain private, requiring mutual consent for any disclosure Information shared in private sessions with individual parties is protected and cannot be revealed to others without prior approval During these private meetings, the mediator can use neutral questions to help parties evaluate their situations, enabling them to formulate more realistic proposals that facilitate reaching a settlement.

Before mediation begins, the parties involved must create a written mediation agreement, which serves as the legal foundation for the process The mediator cannot enforce a resolution, and if mediation fails to yield an agreement, either party retains the right to take the dispute to court or arbitration Importantly, the specifics of the mediation will remain confidential and cannot be introduced in any subsequent legal proceedings.

Arbitration has traditionally been the preferred method for resolving international commercial disputes, as noted by Gary B Born (2009) However, the international community is increasingly moving away from arbitration due to concerns about its time, cost, and procedural complexities (William W Park, 2012) Consequently, disputants are seeking alternative resolution mechanisms, with mediation emerging as a more favorable option (Jacqueline Nolan-Haley, 2012).

International commercial mediation, though it may seem like a recent development, has long been a familiar method for resolving cross-border commercial disputes Historically, commercial mediation was widely utilized before the rise of arbitration, which gained prominence after World War II as a key mechanism for settling transnational trade conflicts.

China has a rich history of mediation, dating back to the Qing dynasty when judges often mandated parties to mediate before pursuing litigation (Wang Wenying, 2005) The influence of Confucian philosophy in Southeast Asia, particularly in countries like Vietnam, Singapore, and Thailand, emphasizes harmony and the importance of yielding to others to avoid conflict This consensus-based approach to dispute resolution remains prevalent in China today and is widely adopted across Southeast Asia Research indicates that the region's preference for mediation over arbitration stems from a desire to maintain business relationships, as arbitration and litigation typically designate a winner and a loser, potentially jeopardizing ongoing partnerships (Danny McFadden, 2011).

Commercial mediation is gaining traction not only in the Eastern region but also in the Western world, as evidenced by the growing commitment of business professionals to utilize consensus-based dispute resolution mechanisms (John Lande, 2000) This trend spans various sectors, including private, public, and international domains Notably, international organizations like the World Bank and International Finance Corporation are actively promoting international commercial mediation Many jurisdictions now mandate that disputing parties engage in mediation before pursuing court action Prominent corporations such as General Electric and Siemens are also advocating for advanced mediation as an effective dispute resolution method (S.I Strong, 2014) Consequently, empirical studies indicate that commercial mediation is becoming increasingly institutionalized.

This article explores the concept of commercial mediation, building on its background and significance According to the Vietnamese government’s Decree 22/2018/ND-CP, commercial mediation is defined in broad terms, highlighting its importance in resolving disputes within the business sector.

Commercial mediation is a method for resolving business disputes, involving an agreement between the parties and facilitated by a neutral third party known as a commercial mediator, in accordance with relevant regulations.

The lack of specificity in the definition of commercial disputes can lead to confusion among viewers and disputants To clarify what constitutes a commercial dispute, one can refer to the Commercial Act of 2005 and the Commercial Arbitration Act of 2010, which provide more detailed regulations.

While looking at the definition of a country in the region – Singapore, the dispute parties can know right away what type of dispute is considered having commercial characteristic:

“…commercial disputes … include banking, construction, healthcare, employment, information technology, insurance, partnership, shipping and tenancy disagreements…”

Commercial mediation is an effective dispute resolution process that helps parties settle conflicts related to various commercial matters, including banking, construction, and healthcare, without resorting to court It enhances communication between disputants and allows them to collaboratively create resolutions with the guidance of a fair-minded mediator This alternative dispute resolution (ADR) method is characterized by confidentiality, enabling parties to discuss their disputes openly and express their concerns Participants can share their perspectives and relevant information while freely asking questions and receiving feedback The face-to-face nature of commercial mediation fosters detailed discussions about the issues at hand Research indicates that over two-thirds of parties involved in mediation reach a resolution, highlighting its high success rate While it cannot guarantee a 100% agreement, commercial mediation paves the way for improved negotiations and greater chances of success in future discussions.

Mediation is a flexible process influenced by cultural differences across nations In the USA, mediators tend to prioritize a win-lose scenario, emphasizing quick resolutions and implementation over relationship building Conversely, Asian mediators focus more on fostering connections between the parties involved Despite these cultural variations, mediation sessions generally follow three major stages.

Agreement to mediate Contact with mediator Mediation scheduled

Mediation conducted Parties reach agreement

Parties do not reach agreement Arbitration or

In commercial disputes, communication between parties is often hindered, as lawyers typically serve as the primary representatives Disputants are frequently advised against speaking for themselves to prevent potential pitfalls from careless remarks However, effective mediation relies heavily on fostering open communication channels, which is essential for achieving a successful resolution (Street, 2005).

Effective communication between parties is essential for understanding each other's objectives and needs, which forms the foundation for developing suitable solutions Research indicates that a lack of information exchange can lead to negotiation failures To achieve successful outcomes, mediators must facilitate open communication, encourage parties to express their needs, and foster a positive and productive discussion environment (J Butler, 1999).

Effective communication relies on trust and honesty, as individuals must openly share their needs and desires with the mediator's support However, not all situations are conducive to open dialogue; negative emotions can hinder communication, leading to a breakdown in information flow In these instances, the mediator acts as a messenger, facilitating communication between the parties Additionally, when one party dominates the conversation—referred to as the "big fish and small fish" scenario—the mediator must serve as an equalizer, ensuring that everyone has the opportunity to express themselves (Street, 2005).

Arbitration

Arbitration serves as the most formal alternative to litigation, allowing disputing parties to present their cases to a neutral third party who makes a binding decision This method is commonly utilized for dispute resolution across both private and public sectors.

Arbitration is often viewed as a more efficient alternative to litigation due to its speed, cost-effectiveness, and procedural flexibility Parties involved can choose their arbitrator and have control over various aspects of the arbitration process Additionally, arbitrators usually possess specialized expertise in the relevant subject matter, allowing for more informed decision-making.

Arbitration is a method for resolving business disputes by presenting them to an impartial third party, known as an arbitrator This arbitrator listens to the evidence from both parties involved and issues a decision, which can be binding Essentially, to arbitrate means to submit a dispute for resolution by an arbitrator, who acts as an objective observer in the process.

Arbitration is an alternative dispute resolution (ADR) method that aims to resolve disputes efficiently and cost-effectively, avoiding the lengthy court process associated with litigation Unlike litigation, which is a formal court procedure resulting in binding decisions and the possibility of appeals, arbitration offers a more streamlined approach with distinct procedural differences and outcomes for the parties involved.

Arbitration is frequently mistaken for mediation, which is an informal method involving a third party to facilitate discussions between disputing parties Unlike arbitration, mediation is non-binding, meaning the mediator does not make decisions based on evidence but instead encourages dialogue and collaboration through meetings and separate discussions Both arbitration and mediation, along with litigation, play significant roles in resolving business disputes (Jean Murray, 2019).

In legal science, the arbitration was studied under many different levels and there are many definitions of arbitration:

According to the American Arbitration Association/ICDR (AAA):

"Arbitration is a dispute resolution method by submitting the dispute to a number of objective consideration and settlement and they will make the final decision, valuable required the claimants to enforce "

In Vietnam, commercial arbitration is defined by Article 3 (1) of the Law on Commercial Arbitration 2010 as a method of dispute resolution that is mutually agreed upon by the parties involved and conducted in accordance with the provisions of this law.

Besides, according to Martin Domke, commercial arbitration is defined as:

Arbitration is a method for resolving disputes by appointing a neutral arbitrator chosen by the parties involved This arbitrator makes a decision based on the evidence and arguments submitted to the arbitration tribunal Both parties consent beforehand to accept the arbitrator's decision as final and binding.

Commercial arbitration is a key form of alternative dispute resolution (ADR) that enables the resolution of commercial disputes outside of traditional court systems In this process, disputes are adjudicated by one or more arbitrators, ensuring a streamlined and efficient resolution.

"arbiters" or "arbitral tribunal"), which renders the "arbitration award" An arbitration award is legally binding on both sides and enforceable in the courts (O'Sullivan, Arthur; Sheffrin, Steven M., 2003)

According to the American Arbitration Association (AAA), here is the general process for arbitration

Arbitrations, as outlined by the American Arbitration Association, typically follow a series of general stages, although each case may present unique circumstances that can alter standard procedures.

Upon filing a case, the arbitration center will notify the involved parties via letter or email, outlining the arbitration process and key dates This communication will specify when the respondent must submit their answer to the claimant's Demand for Arbitration, as well as deadlines for all parties to provide necessary information Additionally, if any fees are required, the arbitration center will request these payments at this stage.

Depending on what process is set forth in the Rules that govern your arbitration, the arbitration center/asscociation invites an arbitrator or arbitrators to

Position Statements submitted to arbitrator Hearing

In the decision award and enforcement process, the arbitrator examines the case details, identifies any potential conflicts, and submits a signed oath document along with necessary disclosures, if required.

Parties are informed of the appointed arbitrator and have the opportunity to raise objections by a specified due date If objections are submitted, the arbitration center will evaluate whether to retain or dismiss the arbitrator Should the arbitrator be removed, the process reverts to the invitation stage for appointing a new arbitrator Conversely, if the arbitrator remains, the arbitration proceeds to the next phase.

1.3.3.4 Preliminary Hearing and Information Exchange

Once the Arbitrator is appointed and confirmed, a preliminary hearing conference call will be scheduled with the parties involved This call addresses initial issues, sets a timeline for information exchange, and establishes a hearing date Following the call, the Arbitrator will issue a written "scheduling order" that outlines all key dates and details discussed during the conference.

In this stage of arbitration, the parties present their cases to the arbitrator through various means, including in-person meetings, telephone discussions, or written submissions The arbitration agreement and relevant governing rules determine the specific procedures followed Additionally, the arbitrator may request that the parties submit written arguments after the hearing concludes.

Once the hearing concludes and the arbitrator decides that no additional evidence will be presented, the hearing is officially closed, and a date is established for the issuance of the award The arbitrator then provides a written award that determines the case's outcome, which is subsequently sent to the involved parties At this stage, the arbitration process is finalized, and the arbitration center or association closes its file on the case.

The key differences between mediation and arbitration

Although mediation and arbitration have the same goal in mind, a fair resolution of the issues at hand, there are some major differences which both parties must understand beforehand

Arbitration differs from mediation in that an arbitrator reviews evidence and renders a decision, resembling a court trial but typically in a less formal setting In contrast, mediation involves a neutral third party facilitating negotiation, with resolution achieved only when all parties consent.

Mediators facilitate settlements by assisting parties in communication, gathering relevant information, and exploring resolution options, rather than issuing orders or making determinations Typically, the mediation process begins with an informal joint meeting where each party shares their perspective on the dispute The mediator may then hold separate discussions with each party to delve deeper into the issues and potential solutions, often alternating between the two sides The primary goal is to help the parties work towards a mutually beneficial agreement, which usually culminates in a written settlement Many individuals find mediation more satisfying than arbitration or court processes, as it allows them greater control over the outcome and involvement in the resolution.

Arbitration is a formal dispute resolution process where an arbitrator, often a retired judge or experienced professional, hears both parties present their cases Unlike mediation, arbitration involves minimal out-of-court negotiations, and lawyers can question witnesses during the proceedings The arbitrator issues a legally binding decision, which is enforceable in courts across 142 countries, ensuring that both parties must comply with the award.

Table 1.3: Comparison Between Arbitration & Mediation

Arbitrators control the outcome Parties control the outcome

Arbitrator is given power to decide

Mediator has no power to decide

Settlement only with party approval

Often extensive discovery is required

Exchange of information is voluntary and is often limited Parties exchange information that will assist in reaching a resolution

Arbitrator listens to facts and evidence and renders an award

Mediator helps the parties define and understand the issues and each side's interests

Parties present case, testify under oath

Parties vent feelings, tell story, engage in creative problem-solving

Process is formal Attorneys control party participation

Joint and private meetings between individual parties and their counsel the arbitrator

Decision based on facts, evidence, and law

Outcome based on needs of parties

Result is win/lose award—

Result is mutually satisfactory—A relationship may be maintained or created

More expensive than mediation, but less expensive than traditional litigation

Private and confidential Private and confidential

(Financial Industry Regulatory Authority-FINRA, 2018)

The understanding of arb-med-arb model

To address the diverse legal cultures in today's global marketplace, dispute resolution mechanisms must evolve continuously A notable recent development in this area is multi-tiered dispute resolution, which is evolutionary rather than revolutionary, as it builds upon established practices rather than introducing entirely new concepts.

In recent years, the "Arb-Med-Arb" process has emerged as a popular dispute resolution mechanism This approach, which stands for Arbitration-Mediation-Arbitration, involves initiating arbitration proceedings, then engaging in mediation to seek an amicable resolution, and finally resuming arbitration if mediation fails.

Multi-tiered dispute resolution offers multiple pathways for settling disputes within a single procedure, integrating various methods like mediation and arbitration This innovative approach, increasingly utilized in commercial and cross-border contexts, enables a flexible mechanism for resolving conflicts effectively.

In various regions, particularly in mainland China and other civil law countries, judges and arbitrators commonly play a role in promoting settlement during trials and arbitration proceedings.

Multi-tiered dispute resolution offers an effective approach for resolving cross-border disputes by integrating negotiation and mediation's flexibility with the finality and swift enforcement of arbitration, as outlined in the UN Convention for the Recognition and Enforcement of Foreign Arbitral Awards This method presents distinct considerations that parties must carefully navigate.

The debate surrounding "Arb-Med-Arb" often questions the necessity of initial arbitration compared to the potentially more efficient "Med-Arb" process, which could save time and costs for the parties involved However, seasoned mediation practitioners emphasize the importance of ensuring that each party fully understands their own case and that of their opponent before engaging in mediation, particularly in complex or contentious disputes.

The "Arb-Med-Arb" process initiates arbitration proceedings only after exchanging pleadings, ensuring that parties clearly outline their disputes and prepare for mediation effectively This approach prevents parties from using mediation as a means to gather additional information for litigation or arbitration Under this model, all case files and documents are transferred from the arbitration center to the mediation center, providing necessary information to all participants and reducing time and costs associated with document reproduction The collaboration between arbitration and mediation in Singapore enhances the efficiency of the dispute resolution process While the simpler "Med-Arb" method remains effective, the increasing popularity of "Arb-Med-Arb" highlights its potential as a more comprehensive solution for alternative dispute resolution.

The specific procedure of Arb-Med-Arb will be described in the next Chapter.

INTERNATIONAL EXPERIENCE ON APPLYING ARB- MED-ARB MODEL: STUDY OF SINGAPORE

Singapore’s development in mediation and arbitration

Singapore is recognized as a premier destination for international alternative dispute resolution (ADR) solutions, having established itself as a leading hub for alternative dispute settlement Notably, it is the only country to implement the arbitration-mediation-arbitration model, which highlights its innovative approach to dispute resolution This research aims to analyze the development of Singapore's institutional framework and its mediation and arbitration proceedings, exploring the factors that have contributed to its status as a global center for commercial mediation and arbitration.

In the late 1990s, Singapore revitalized its mediation practices in response to an overwhelming court case backlog, recognizing mediation as an efficient alternative for dispute resolution due to its shorter procedures and ability to promote harmony This shift aimed to alleviate the burden on the judiciary and led to the establishment of the first three mediation institutions to support these objectives (Sundaresh Menon, 2015).

The Primary Dispute Resolution Centre in Singapore specializes in civil cases with a monetary limit of approximately $200,000 This centre primarily employs judges as mediators, who have undergone advanced mediation training to effectively manage the high volume of cases Due to the substantial caseload and limited number of judges, the centre actively seeks additional mediators with the necessary legal expertise to enhance its mediation services.

The accreditation of Alternative Dispute Resolution (ADR) in the Asia Pacific region has been strengthened by the State Courts Practice Directions in Singapore, which mandate that parties in conflict are automatically referred to the most appropriate alternative dispute resolution methods, including mediation, ensuring that there are no situations where they opt out of this process.

The Singapore Mediation Center, established in 1997, primarily focuses on commercial cases and operates alongside the Supreme Court of Singapore, where parties are encouraged to consider mediation for dispute resolution The court retains the authority to direct cases to mediation when deemed appropriate A notable initiative is the collaboration between the Singapore Mediation Center and local businesses, which aims to develop mediation programs tailored to the economic landscape Key outcomes of this partnership include the Council for Estate Agencies Mediation Sub-Scheme and the Court for Private Mediation Education.

Community Mediation Centres (CMC) play a vital role in addressing diverse conflicts related to people's homes and lives To effectively manage a wide range of cases, CMC requires a team of mediators from various social backgrounds The institution has established a Mediator Framework to ensure high standards for its mediators, which includes comprehensive training programs and qualifications for recruiting volunteer mediators.

By classifying mediation institutions, the result was noticeable As reported in

Since its inception in 2015, the PDRC has addressed over 7,000 cases, showing a remarkable increase over the years, with a high resolution rate of 90% Meanwhile, the SMC has successfully resolved nearly 2,500 cases, achieving an impressive success rate of around 80% Additionally, the CMC has managed approximately 7,000 community disputes, boasting a commendable resolution rate of 70% (Sundaresh Menon, 2015).

Singapore has recognized the growing demand for quality dispute resolution in response to increasing foreign direct investment (FDI) and cross-border trade activities (UN, 2013) As a result, it has established itself as a leading hub for international commercial dispute resolution, becoming one of the world's most prominent arbitration and mediation institutions (White & Cases, 2012) In 2013, the Singapore International Mediation Center (SIMC) was created by a Working Group following a survey on mediation needs, which also recommended an accreditation system for mediators and a robust legal framework for mediation in Singapore The SIMC offers international-quality mediation services, supported by a diverse range of qualified mediators and specialists, adhering to established mediation principles Additionally, the Singapore International Mediation Institute (SIMI) plays a crucial role in validating mediators at the SIMC, ensuring high standards in mediation practices.

The Singapore International Commercial Court (SICC) is a vital component of Singapore's Alternative Dispute Resolution (ADR) landscape, functioning as part of the Singapore High Court to handle international trade disputes that often do not involve the country directly This unique institution merges the advantages of both court litigation and arbitration, enhancing the efficiency and effectiveness of dispute resolution Alongside the Singapore International Mediation Centre (SIMC) and the Singapore International Arbitration Centre (SIAC), Singapore has established itself as a leading ADR hub globally In this environment, parties have the flexibility to choose their preferred resolution methods, whether through voluntary mediation or court referrals, all within a robust and reliable framework.

Furthermore, the Asian Mediation Association was formed in Singapore on

On August 17, 2007, five mediation centers signed a Memorandum of Understanding (MOU) to enhance the mediation ecosystem in the region, focusing on improving mediation for business and commercial conflicts The unique Arb-Med-Arb model facilitates collaboration among diverse mediation centers across Asia, accommodating various cultures and jurisdictions This organization primarily addresses disputes involving parties engaged in trading activities in Asia, offering a range of services including neutral mediation facilitation, mediator selection and training, and the establishment of mediation systems Currently, the membership has expanded to twelve centers, including notable institutions such as the Bahrain Chamber for Dispute Resolution, Delhi Mediation Centre, and Singapore Mediation Centre, among others (AMA, 2018).

In just 25 years, Singapore has transformed from having minimal international arbitration to becoming a leading hub in Asia and globally This growth is evidenced by the Singapore International Arbitration Centre (SIAC), which was recognized as one of the fastest-growing arbitral institutions, handling 343 new cases in 2016, with over 80 percent of these cases being international.

Singapore has successfully positioned itself as a leader in international arbitration through active regulatory competition Minister of Law K Shanmugam emphasized this commitment during the 2011 Arbitration Dialogue, stating Singapore's goal to be at the forefront of international arbitration thought He highlighted the government's clear and determined stance on enhancing arbitration practices, reflecting Singapore's dedication to excellence in this field.

In Singapore, our approach to arbitration is proactive and legislative, allowing us to address issues within three to six months For instance, we swiftly resolved a case from the High Court that was inconsistent with our arbitration objectives through legislative action in just four months This reflects our court system and judicial philosophy, which are highly supportive of arbitration Rather than adopting a hands-off stance, our judiciary intervenes appropriately, aligning with international standards and fostering a conducive environment for arbitration.

Singapore is emerging as a competitive hub for arbitration, rivaling traditional centers like London, Paris, and Stockholm Over the last 15 years, case filings at the Singapore International Arbitration Centre (SIAC) have surged by over 300% In 2000, Singapore managed only 58 cases, but this figure has significantly escalated since the financial crisis.

In 2015, there were 271 filings, marking a 22% increase compared to 2014 In contrast, the London Court of Arbitration handled 326 arbitrations in the same year, reflecting a 10% rise from 2014 Notably, Singapore is rapidly closing the gap in arbitration cases.

Figure 2.1: Total Number of New Cases Handled by SIAC (2006-2016)

2016 was a record breaking year for Singapore's main arbitral institution, the Singapore International Arbitration Centre (SIAC), and the ICC (Lim Tat, Singapore, 2017):

- SIAC administered 343 new cases from 56 jurisdictions, representing almost a 400% rise from a decade ago and a 27% increase from 2015

- SIAC handled a total amount in dispute of US$11.85 billion), nearly three and half times the amount in 2014

- The ICC Court recorded 966 new cases filed in 2016, with the average monetary value in dispute rising from US$63 million in 2014 to US$84 million in 2015

- Singapore was also named the number one seat of ICC arbitration in Asia for five years running and the fourth most preferred seat globally for ICC arbitration

Over 84% of all new Singapore seated SIAC arbitrations and 71% of all new Singapore seated ICC arbitrations filed in 2015 were international in nature, involving one or more nonSingaporean parties

The attraction of arbitration in international business transactions in Singapore is attributable to its:

- Arbitration legislation based on the UNCITRAL Model Law on International Commercial Arbitration 1985 (UNCITRAL Model Arbitration Law)

Singapore's Arb-Med-Arb model

The "arb-med-arb" process is a distinctive feature of Singapore's mediation culture, emerging from the collaboration between the Singapore International Arbitration Center and the Singapore International Mediation Center This model allows conflicting parties to voluntarily select either arbitration or mediation, emphasizing the importance of binding arbitration agreements while incorporating the benefits of mediation.

2.2.1 SIAC-SIMC Arb-Med-Arb Protocol

The AMA Protocol, developed through collaboration between the Singapore International Arbitration Centre (SIAC) and the Singapore International Mediation Centre (SIMC), consists of three main stages Once the arbitration proceedings are initiated and the arbitral tribunal is formed, the tribunal will issue a stay of the arbitration to facilitate the process.

When a case is referred to the Singapore International Mediation Centre (SIMC) by the Singapore International Arbitration Centre (SIAC), mediation proceedings will be conducted and must be completed within eight weeks If the parties reach a settlement during mediation, they can request the arbitral tribunal to issue a consent award based on their agreement However, if mediation does not resolve the dispute, the arbitral tribunal will lift the stay on arbitration and continue with the arbitration proceedings.

The AMA Protocol can be adopted at any stage of arbitration proceedings or included in a dispute resolution clause within the parties' contract It enforces a strict compliance timeline and triggers automatic referrals to SIMC following a stay of arbitration by the tribunal SIAC handles all fee collections for both itself and SIMC, ensuring that parties only pay a single set of fees throughout the process Additionally, the Protocol maintains a clear separation between arbitration and mediation, with arbitrators not serving as mediators, and mediation being managed by SIMC independently from SIAC's arbitration proceedings.

The AMA Protocol combines the advantages of mediation and arbitration, ensuring flexibility while minimizing costs and time typically involved in switching dispute resolution methods By maintaining a clear separation between arbitration and mediation proceedings, it mitigates concerns of bias, with mediation only commencing after arbitration has begun, thus clarifying the origins of disputes Additionally, the Protocol enables parties to reach a settlement agreement, which can be partially or fully issued as an award, leading to higher compliance rates compared to traditional arbitral awards These features establish the AMA Protocol as the new "gold standard" for multi-tiered dispute resolution.

Under the AMA Protocol, parties initiating arbitration must first engage in mandatory mediation for their disputes If mediation leads to a successful resolution, the parties can formalize their settlement agreement with the arbitral tribunal, resulting in an enforceable covenant award.

The AMA Protocol is applicable to all disputes submitted to the Singapore International Arbitration Centre (SIAC) for resolution under the Arb-Med-Arb Clause or any disputes mutually agreed upon by the parties for resolution under this Protocol Parties acknowledge that any dispute resolved during mediation at the Singapore International Mediation Centre (SIMC) will be encompassed within the framework of their arbitration agreement.

The SIMC and SIAC advocate for the inclusion of the AMA Clause in contracts, as it establishes a multi-tiered dispute resolution mechanism that enhances the overall effectiveness of conflict resolution within the agreement.

2.2.2 Procedure of Singapore’s Arb - Med - Arb model

Arb-Med-Arb under the SIAC-SIMC Arb-Med-Arb Protocol works as follows:

Firgue 2.2: Procedure of Singapore Arb-Med-Arb model

(Source: Edmund Wan and Alex Ma King & Wood Mallesons‘ Hong Kong office)

Arb-Med-Arb model is a hybrid mechanism and combines arbitration and mediation It contains inessence the following steps:

 The claimant initiates arbitration and files a notice of arbitration

 The tribunal is constituted but immediately stays the proceedings

 The parties attempt to settle their disputes by way of mediation

 If the mediation is successful, the tribunal enters a consent award

 If the mediation is not successful, the parties are referred back to arbitration

The Singapore International Arbitration Centre (SIAC) and the Singapore International Mediation Centre (SIMC) are currently the sole institutions providing a model clause and explicit guidelines for conducting Arb-Med-Arb proceedings To utilize the Arb-Med-Arb framework, parties must integrate this model into their commercial contracts, using the standard wording established for this process.

Any disputes related to this contract, including issues of existence, validity, or termination, will be resolved through arbitration administered by the Singapore International Arbitration Centre (SIAC) The arbitration will adhere to the current SIAC Rules, which are incorporated by reference in this clause.

The seat of the arbitration shall be [Singapore] 2 The Tribunal shall consist of _** arbitrator(s) 3 The language of the arbitration shall be

The parties agree to engage in good faith mediation at the Singapore International Mediation Centre (SIMC) after arbitration begins, following the SIAC-SIMC Arb-Med-Arb Protocol Any settlement achieved during mediation will be submitted to the SIAC-appointed arbitral tribunal and can be formalized as a consent award based on the agreed terms.

The Arb-Med-Arb model stipulates that disputes will be resolved through arbitration in Singapore, followed by an attempt at mediation at the Singapore International Mediation Centre (SIMC) after arbitration begins Any settlements achieved during the mediation process are binding.

Parties involved in arbitration should clearly designate their preferred seat of arbitration If an alternative location outside of Singapore is desired, replace “*Singapore+” with the chosen city and country (e.g., “*City, Country+”).

3 State an odd number Either state one, or state three. shall be referred to the SIAC appointed arbitral tribunal and made as a consent award

The AMA Clause is not required to be included in the initial contract between parties, as it can be adopted after a dispute has occurred, provided that both parties give their consent.

In AMA proceedings, the arbitrator and mediator are distinct individuals to maintain impartiality; however, parties can choose one person for both roles, though this is discouraged due to the potential for bias, as the arbitrator may be influenced by insights gained during mediation discussions.

APPLICABILITY OF AMA MODEL IN VIET NAM AND

Vietnam’s approach on applying Arb – Med - Arb model

Since 1986, Vietnam's economy has experienced steady growth, significantly transforming from a low-income to a lower-middle-income nation due to economic and political reforms initiated by Doi Moi Since 1990, Vietnam has been among the fastest-growing countries in terms of GDP per capita, averaging 6.4% annual growth during the 2000s Despite global market fluctuations, Vietnam's economy has maintained a robust development trajectory, with a GDP growth rate of 6% in 2016 The country's strong and stable internal demand, along with a thriving export-oriented manufacturing sector, contributes to its promising medium-term economic outlook, as evidenced by a significant increase in newly established enterprises, according to the Ministry of Planning and Investment.

In 2018, Vietnam recorded 10,594 enterprises with a total registered capital of 119.243 billion VND, marking a 9.3% increase in the number of businesses and a 17.8% rise in registered capital compared to 2016 Notably, the number of new enterprises established in May 2018 was double that of May 2014, highlighting significant growth This surge in enterprise numbers correlates with an increased likelihood of disputes, as a crowded market often leads to more conflicts The diversification of industries and the rise of thousands of new businesses necessitate the development of Alternative Dispute Resolution (ADR) mechanisms to effectively manage the growing demand for dispute settlement among both new and established enterprises in Vietnam.

Figure 3.1: Newly established enterprises of May from 2014 – 2018

Over the past 30 years, foreign direct investment (FDI) in Vietnam has significantly increased, establishing the country's presence in the global market (Bui Quang Vinh, 2013) Since the Doi Moi reforms, the foreign investment sector has played a crucial role in Vietnam's economic development As of August 2012, Vietnam had 14,095 valid foreign investment projects with a total registered capital of $206.8 billion, of which $97.4 billion had been disbursed This sector has demonstrated remarkable dynamism, with a GDP growth rate consistently surpassing the national average For instance, in 1995, the foreign investment sector's growth rate was 14.98%, compared to the national rate of 9.54% Subsequent years showed similar trends, with rates of 11.44% and 6.79% in 2000, 13.22% and 8.44% in 2005, and 8.12% and 6.78% in 2010 Since 1992, the contribution of the foreign investment sector to GDP has steadily increased, starting at 2%.

Between 2000 and 2011, the contribution of the foreign investment sector to Vietnam's economic structure increased by 5.4%, with export proportions rising from 12.7% in 1992 to 18.97% in 2011 Policies encouraging foreign investment have significantly enhanced Vietnam's export capacity, facilitating the country's integration into and advancement within the global value chain Notably, prior to 2001, exports from the foreign investment sector had already exceeded overall export figures.

In 2012, domestic enterprises contributed significantly to Vietnam's export growth, accounting for 64% of the total export value Additionally, foreign investment played a crucial role in expanding Vietnam's export markets, particularly in the USA and EU, leading to a dramatic shift in the export structure As a result, the United States emerged as Vietnam's largest export market.

Vietnam's dynamic economic growth and foreign direct investment (FDI) landscape have paved the way for numerous international agreements, starting with ASEAN in July 1995, followed by the Vietnam-USA Bilateral Trade Agreement in 2000 and WTO membership in January 2007 Currently, Vietnam has signed or is in the process of signing 16 Free Trade Agreements (FTAs), with the EVFTA and TPP-CPTPP being the most significant Notably, these FTAs incorporate mediation options in their dispute resolution terms, particularly in the new generation agreements like the EVFTA, which outlines specific mediation procedures and a code of conduct for mediators While Vietnam traditionally viewed mediation as a domestic solution, many of its trade partners have adopted mediation as a means to resolve international disputes, with the EU being a prominent advocate for this approach, as highlighted in the preamble of the agreements.

Mediation offers a cost-effective and swift alternative for resolving civil and commercial disputes, with processes customized to meet the specific needs of the parties involved Agreements reached through mediation tend to be adhered to voluntarily and help maintain amicable, sustainable relationships These advantages are especially significant in cross-border situations.

Source: EU Directive 2008/52/EC (Europa, 2008)

Vietnam is on the verge of committing to a prominent global mediation center, yet it faces challenges in matching their expertise This discrepancy could lead to confusion during disputes, potentially disadvantaging Vietnam and leaving it vulnerable to European parties Experts note that dispute resolution in trade and investment is emerging as a key trend in new-generation Free Trade Agreements (FTAs), although this concept remains relatively unfamiliar to Vietnam.

Vietnam's commercial mediation landscape is marked by several notable challenges Primarily, the legal framework governing commercial mediation remains incomplete and does not fully align with international standards Additionally, the advisory role of lawyers in mediation is limited, hindering their ability to effectively represent the country Enforceability issues further complicate the situation due to existing regulations However, despite these shortcomings, Vietnam has made significant strides in advancing commercial mediation and arbitration This thesis will examine the evolution of Vietnam's legislation on commercial mediation and arbitration, tracing its development from the initial documents to the most recent regulations.

3.1.2 Vietnam development in commercial mediation and arbitration 3.1.2.1 Legislation a) Mediation

The regulation of mediation in Vietnam began with Decree No 13 on Court organization issued on January 21, 1946 Subsequently, Decree No 20/TTg on January 14, 1960, acknowledged mediation as an option for disputes under the Central Arbitration Council's jurisdiction The Economic Arbitration Order of March 25, 1991, led to Decree No 70/HDBT, which outlined the principles and procedures for resolving economic contract disputes While this decree did not explicitly regulate mediation, it highlighted its role within the Economic Arbitration process for settling such disputes.

Assembly issued the Procedure for settlements of Economic Cases Order 73

Later, Commercial Arbitration Order 2003 has been issued and Article 37 has regulated mediation in arbitration adjudication (UBTVQH, 2003) In June 15 th

In 2004, the ratification of the Civil Procedure Code marked a pivotal advancement in civil procedure law, particularly with Chapter II recognizing mediation as a fundamental principle of civil procedure (Quoc Hoi, 2004).

Resolution No 49-NQ/TW of the Politics Ministry dated June 2 nd 2005 about Jurisdiction reform Strategy until 2020 concludes:

“… promote to settle some of the disputes by negotiation, mediation, arbitration; the court supports by approved such settlements”

Source: Resolution No 49-NQ/TW (BCHTU, 2005)

This undertaking is crucial as it lays the groundwork for future legal regulations regarding Alternative Dispute Resolution (ADR) methods, including mediation and arbitration A key aspect of mediation highlighted in the relevant legal frameworks, such as the Civil Code 2005 and the Commercial Code 2005, is the principle of voluntary participation by the parties involved.

In civil relationships, mediation is promoted as a means of resolving disputes in accordance with legal regulations It is essential that no party resorts to force or threats when entering into civil relationships or addressing civil conflicts.

Source: Article 12 Civil Code 2005 (Quoc Hoi, 2005)

Both parties are entitled to negotiate freely within the framework of legal regulations, customs, and social morals to define their rights and obligations in commercial activities Additionally, while Article 317 of the Commercial Code acknowledges mediation as a method for dispute resolution, it lacks specific details Article 12 of the Investment Code 2005 further stipulates that disputes related to investment activities in Vietnam should be resolved through negotiation, mediation, arbitration, or court proceedings in accordance with the law.

Source: Article 11 Commercial Code 2005 (Quoc Hoi 2005)

Vietnam's international treaties, including Protection and Investment Encouragement Agreements and trade agreements, prioritize negotiation and mediation for conflict resolution Private mediation is considered a business matter without specific legal regulations The Vietnam International Arbitration Center (VIAC), affiliated with the Vietnam Chamber of Commerce, established the Mediation Principle to guide parties in selecting mediators and procedural processes Effective since September 10, 2007, this principle consists of 20 articles aimed at resolving disputes arising from commercial activities when parties agree to mediation through VIAC Key features include the freedom to choose mediators, adherence to principles of independence and impartiality, information openness, confidentiality obligations, and the commitment to refrain from arbitration or court actions during mediation Successful mediation results in a binding agreement per civil law regulations Additionally, Article 9 of the 2010 Law on Commercial Arbitration emphasizes the role of negotiation and mediation within arbitration adjudication.

Recommendations for Viet Nam

3.2.1 For Government 3.2.1.1 Developing the commercial legal environment a) Working group on commercial mediation

To enhance commercial mediation in Vietnam, the government should establish a dedicated Working Group, similar to Singapore's approach in 2003 This group, comprising key officials from the Ministry of Justice and global mediation experts, would conduct research and provide strategic recommendations to transform Vietnam into an international mediation hub The Singaporean Working Group took a year to identify essential elements for internationalizing their mediation framework, resulting in government-supported initiatives that significantly advanced their mediation landscape.

In 2007-2008, Hong Kong established a Working Group, similar to Singapore's, comprising experts from various sectors to enhance mediation, particularly in commercial disputes Over two years, the group proposed nearly 50 recommendations addressing the legal framework, training and accreditation, and public education These findings underwent a three-month public review for feedback Subsequently, three Mediation Task Forces were created, involving stakeholders from mediation institutions and legal authorities to focus on these key areas To further advance mediation practices, a Steering Committee was formed, supported by three sub-committees dedicated to the major aspects of study, resulting in a robust mediation framework in Hong Kong (CEDR, 2012).

Commercial mediation institutions in Vietnam, as outlined in Decree No 22, serve primarily as mediator appointing authorities, facilitating both ad-hoc and institutional mediation While the rise of multiple commercial mediation centers may seem beneficial, it poses challenges in a nascent legal framework and limited social need assessment, making it potentially ineffective and costly Instead, establishing a large-scale national commercial mediation center, informed by international best practices, could provide a more viable solution This center could operate alongside existing arbitration institutions, enhancing their services without complicating administrative processes Promoting mediation services within organizations like the Vietnam Chamber of Commerce and Industry and other professional associations is crucial, as these entities understand the needs of their members and can effectively facilitate mediation Empowering such organizations to offer or recommend mediators would enhance the effectiveness of commercial mediation, providing dispute parties with diverse options for conflict resolution, as evidenced by successful models in Singapore's mediation landscape.

Vietnam currently lacks an international accreditation system for mediators, resulting in a fragmented approach across various ADR centers To enhance the development of international commercial mediation in Vietnam, establishing a National Mediation Accreditation Center is essential Internationally, parties prefer resolving disputes with experienced mediators or field experts, necessitating proof that Vietnamese mediation institutions can provide such expertise This initiative aligns with the recommendation to relax overall mediation practice standards, fostering a more conducive mediation environment in Vietnam The focus is on the implications for mediators within accredited institutions, rather than ad hoc mediators.

Effective regulation is essential for the success of mediation processes, as demonstrated by the mandatory mechanisms in the US Vietnamese courts can adopt similar approaches in various commercial sectors, particularly in international cases, where preserving relationships is crucial due to the involvement of multiple countries This shift towards mediation can enhance conflict resolution beyond traditional court methods.

To enhance the commercial mediation landscape in Vietnam, the introduction of apology legislation is crucial Similar to the regulations in Hong Kong, this legislation would protect parties from accusations when admitting faults during negotiations or mediation By alleviating the fear of being blamed, this mechanism would promote greater honesty and openness among parties, fostering a more effective mediation process.

To effectively implement the Arb-Med-Arb (AMA) process, the Vietnam International Arbitration Centre (VIAC) and the Vietnam Mediation Centre (VMC) should issue a comprehensive practice note addressing key concerns such as legal foundations, timelines, and fees, similar to the SIAC-SIMC protocol A significant advantage in Vietnam is the close affiliation between VMC and VIAC, facilitating collaboration between these two institutions The AMA Protocol involves three main stages: once arbitration is initiated and the tribunal is formed, the tribunal will pause the arbitration and VIAC will refer the case to VMC for mediation, which must conclude within eight weeks If mediation results in a settlement, the parties can request a consent award from the tribunal; if not, the tribunal will lift the stay and continue with arbitration proceedings.

VMC and VIAC should promote the adoption of the AMA Clause in contracts to improve dispute resolution mechanisms The recommended standard wording for this clause should align with Singapore's AMA clause.

Any disputes related to this contract, including issues of existence, validity, or termination, will be resolved through arbitration by the Vietnam International Arbitration Centre (VIAC) according to its current Arbitration Rules, which are considered part of this clause.

The seat of the arbitration shall be [Viet Nam]

The Tribunal shall consist of _** arbitrator(s)

The language of the arbitration shall be

The parties agree to attempt good faith mediation at the Vietnam International Mediation Centre (VMC) following the initiation of arbitration, in line with the current VIAC-VMC Arb-Med-Arb Protocol Any settlement achieved during mediation will be submitted to the arbitral tribunal appointed by VIAC and can be formalized as a consent award based on the agreed terms.

The AMA protocol and AMA clause provide clear guidelines for those studying and implementing this model in their cases With the AMA's application, successful mediation minutes are automatically recognized as an arbitration award, simplifying the process and avoiding complex issues This approach allows parties to save time, as mediation must occur within an 8-week timeframe, and an unsuccessful mediation does not affect the statute of limitations for initiation It is essential to consider adjusting the fixed mediation period when applying Arb-Med-Arb in Vietnam to align with practical circumstances and the capabilities of mediators.

3.2.1.2 Mediators and arbitrators’ capacity improvement a) Liberalization of mediation and arbitration practice

Commercial mediation and arbitration serve as alternative dispute resolution methods outside of traditional court systems, but they are not classified as adjudication Unlike judges or arbitrators who make binding decisions, mediators act as neutral, impartial, and independent facilitators, assisting parties in reaching a mutually acceptable resolution to their disputes.

In Vietnam, the criteria for granting mediator licenses or professional certifications are misaligned with international practices, as parties often prefer mediators based on trust rather than certification Imposing strict standards for mediation certification could undermine the self-determination of parties in resolving commercial disputes, which contradicts the core principles of mediation Notably, even arbitrators, who adjudicate disputes, are not mandated to hold certifications Countries like the United States do not require mediators to have legal backgrounds or formal certifications Thus, there is no compelling reason to enforce a mediation license in Vietnam However, given that commercial mediation is relatively new in the country, enhancing the knowledge and skills of mediators is essential Instead of stringent regulations, Vietnam could implement training programs similar to those offered by the NCMA in the USA Additionally, mediation institutions could establish codes of conduct and standards for mediator admission, akin to practices in Hong Kong and Singapore, thereby indirectly creating foundational criteria for mediators as commercial mediation evolves primarily through institutional frameworks before the rise of ad-hoc mediation.

Vietnam should refrain from imposing regulations on mediation practices, as evidenced by the experiences of the USA and Singapore, where early mediators often emerged as volunteers during the initial stages of mediation development.

Engaging the public in the practice of mediation is essential for its growth in Vietnam, where it remains relatively unfamiliar By encouraging individuals interested in mediation to support conflict resolution, we can start with small issues that gradually expand in scope This approach fosters a conducive environment for mediation's development, making the concept more relatable and accessible to the community As mediation becomes more familiar, it will enhance its proliferation and significantly strengthen the mediation platform, paving the way for integration into the international commercial mediation ecosystem Additionally, improving the skills and capabilities of mediators and arbitrators is crucial for advancing this practice.

Conclusions

The legal field is evolving alongside technological advancements to address the dynamic needs of the commercial world A prime example of this evolution is the Arb-Med-Arb model, which has emerged as a modern solution to meet the demands of global businesses.

The combination of mediation and arbitration, known as the Arb-Med-Arb model, offers a compelling alternative dispute resolution option A key advantage is that any settlement achieved through mediation is recorded as a consent award by the arbitral tribunal, making it enforceable This is especially beneficial for parties seeking enforcement in foreign jurisdictions, as such awards are recognized as SIAC awards and are enforceable under the New York Convention However, it's important to note that traditional arbitration awards typically cover only monetary compensation, injunctive relief, and specific performance orders In contrast, mediation allows parties to negotiate their desired outcomes freely, which may not always align with the standard arbitration awards.

In a mediation scenario where parties reach an agreement involving future commercial arrangements, such as engaging third parties or winding up a company, the Arb-Med-Arb model necessitates that the arbitral tribunal convert this agreement into a consent arbitral award However, this conversion is problematic, as the tribunal lacks the legal authority to enforce such commercial arrangements, making any resulting award susceptible to challenges, potential annulment, or unenforceability.

In conclusion, the Arb-Med-Arb model presents a viable alternative to existing dispute resolution mechanisms, offering parties a constructive environment for negotiation prior to formal arbitration While it is essential for parties to understand that certain limitations exist regarding the terms of a settlement that can be converted into a consent award, this should not hinder discussions on other commercial terms that may facilitate a resolution Being aware of these limitations allows for productive dialogue while still pursuing settlement options.

Limitation of research

Due to limited time and limited knowledge, my study will surely have some inevitable shortcomings.:

This thesis primarily focuses on the study of Singapore, which limits its findings in representing the global multi-tier dispute resolution landscape Consequently, there are valuable insights from other countries that Vietnam can learn from, highlighting the need for more extensive research in this area.

Due to time and financial constraints, as well as the unique nature of commercial mediation and arbitration in Vietnam, the data gathered for this thesis is not fully optimized Consequently, future research will necessitate a more extensive and targeted data collection approach.

Further research is needed to address the identified shortcomings and develop a comprehensive understanding of the potential for multi-tiered dispute resolution While this master's thesis cannot encompass all facets of mediation, arbitration, and alternative dispute resolution methods, it aims to offer valuable insights for Vietnam by exploring the Arb-Med-Arb model based on Singapore's experience It is my hope that this research will serve as a significant resource for future discussions on dispute resolution in the region.

1 BCHTU, 2005, Resolution No 49-NQ/TW, available at: http://www.moj.gov.vn/qt/clqhkh/Pages/chien-luoc-quy-hoach-ke- hoach.aspx?ItemID&CateID=1 [Accessed on 1/12/2018]

2 Chinh Phu, 2018, Decree No 22/2018/ND-CP, available at: https://thuvienphapluat.vn/van-ban/Thuong-mai/Nghi-dinh-22-2018-ND-CP- hoa-giai-thuong-mai-280010.aspx [Accessed on 1/12/2018]

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