Le Huong Giang 2019, Completing the law on commercial conciliation in Vietnam in the context of international economic integration, PhD Thesis, Hanoi Trang 16 Nguyen Hung Quang 2019, C
MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY OPEN UNIVERSITY ∞0∞ LE THI HANH PHUOC LEGAL FRAMEWORK FOR COMMERCIAL CONCILIATION IN VIETNAM - FROM THEORY TO PRACTICE MASTER’S THESIS IN BUSINESS LAW HO CHI MINH CITY, 2023 MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY OPEN UNIVERSITY ∞0∞ LE THI HANH PHUOC LEGAL FRAMEWORK FOR COMMERCIAL CONCILIATION IN VIETNAM - FROM THEORY TO PRACTICE Major: BUSINESS LAW Major code: 38 01 07 MASTER’S THESIS IN BUSINESS LAW Supervisor: Associate Professor -DR DU NGOC BICH HO CHI MINH CITY, 2023 TRƯỜNG ĐẠI HỌC MỞ CỘNG HÒA XÃ HỘI CHỦ NGHĨA VIỆT NAM THÀNH PHỐ HỒ CHÍ MINH Độc lập – Tự – Hạnh phúc KHOA ĐÀO TẠO SAU ĐẠI HỌC GIẤY XÁC NHẬN Tôi tên là: LÊ THỊ HẠNH PHƯỚC Ngày sinh: 20/03/1985 Nơi sinh: Bình Định Chuyên ngành: Luật kinh tế Mã học viên: 1883801070037 Tôi đồng ý cung cấp tồn văn thơng tin luận văn tốt nghiệp hợp lệ quyền cho Thư viện trường đại học Mở Thành phố Hồ Chí Minh Thư viện trường đại học Mở Thành phố Hồ Chí Minh kết nối tồn văn thông tin luận văn tốt nghiệp vào hệ thống thông tin khoa học Sở Khoa học Công nghệ Thành phố Hồ Chí Minh Ký tên LÊ THỊ HẠNH PHƯỚC CỘNG HÒA XÃ HỘI CHỦ NGHĨA VIỆT NAM Độc lập - Tự - Hạnh phúc Ý KIÉN CHO PHÉP BẢO VỆ LUẬN VĂN THẠC sĩ CỦA GIẢNG VIÊN HƯỚNG DẪN Giảng viên hướng dẫn: Phó Giáo sư - Tiến sĩ Dư Ngọc Bích Học viên thực hiện: Lê Thị Hạnh Phước Lớp: MLAW018A Ngày sinh: 20/03/1985 Nơi sinh: Bồng Sơn, Hồi Nhơn, Bình Định Tên đề tài: “Legal framework for commercial conciliation in Vietnam - From theory to practice” Ý kiến giáo viên hướng dẫn việc cho phép học viên: Lê Thị Hạnh Phước bảo vệ luận văn trước Hội đồng: Thành phố Hồ Chí Minh, ngày C tháng 03 năm 2023 Người nhận xét Dư Ngọc Bích i DECLARATION I undertake that the thesis “Legal framework for commercial conciliation in Vietnam - From theory to practice” is my own scientific work Except the reference materials are quoted in this thesis, I undertake that whole part or small parts of this thesis has not ever been announced or used to get the degree at another university There are not any products/ studies of other authors to be used in this thesis without quoting according to the regulations This thesis has never been submitted to get any degree at any university or other training institutions Ho Chi Minh City, 2023 Author Le Thi Hanh Phuoc ii ACKNOWLEDGEMENT The completion of thesis “Legal framework for commercial conciliation in Vietnam - From theory to practice” has marked the author’s process of perseverance and continuous efforts First of all, I would like to express my endless thanks and gratefulness/ sincere thanks to the School Administrator, Faculty of Law, Graduate School and all the lecturers and staffs of Ho Chi Minh City Open University has created all favorable conditions during the process of studying, researching and completing my thesis In particular, I would like to express my deepest gratitude to Associate Professor - Dr Du Ngoc Bich that wholeheartedly helped, guided and created all the best conditions for me in the process of researching this thesis Associate Professor – Dr Du Ngoc Bich has given many valuable comments to help me complete this thesis in the best way This will be extremely valuable knowledge for my future career and life I would also like to express my sincere gratitude to my family, friends and colleagues who have always supported, helped and encouraged me during the study and completion of this thesis Finally, I would like to thank the lecturers in the Thesis Evaluation Committee for giving me the valuable comments to improve this thesis The author wishes all lectures good health, happiness and success in the noble teaching career The author also wishes the Ho Chi Minh City Open University more and more development to train and teach more students in the future iii ABSTRACT The thesis “Legal framework for commercial conciliation in Vietnam - From theory to practice” is a research topic on commercial conciliation The thesis focuses on researching theoretical issues and legal provisions on commercial conciliation in Decree No 22/2017-ND-CP such as: Conditions for dispute resolution to commercial conciliation; Commercial conciliation procedures; Regulations and recognition of successful conciliation results; Regulations on commercial conciliators and commercial conciliation organizations Besides, the thesis also mentions the Singapore Mediation Act with the main highlights including regulations on the implementation of the successful mediation agreement; confidentiality of information about the mediation process; regulations on the continuity of the mediation proceedings and foreign mediator From there, there is an analysis and comparison of the provisions of Decree No 22/2017-ND- CP with the UNCITRAL Model Law and the Singapore Mediation Act to compare the similarities and differences with international and regional countries on commercial conciliation Based on the above comparison results, the thesis lists some practical issues of the laws on commercial conciliation in Vietnam and proposes solutions to improve the laws on commercial conciliation such as studying, developing and promulgating the Law on Commercial Conciliation; promulgating a code of ethics and professional conduct of Vietnamese commercial conciliators; recognizing the successful conciliation results; supplementing regulations on prioritizing the use of commercial conciliation method if the parties already have a conciliation agreement; issuing more detailed regulations on confidentiality in commercial conciliation On that basis, in order to develop commercial conciliation method to be more effective in the coming time and to become the preferred dispute resolution method of enterprises when disputes arise iv TABLE OF CONTENTS DECLARATION i ACKNOWLEDGEMENT ii ABSTRACT iii TABLE OF CONTENTS .iv LIST OF ACRONYMS vii INTRODUCTION 1 Rationales for the study Literature review .2 Objectives of the Study .7 Questions of the Study Subject and Scope of the study Methods of the Study Scientific and practical significance of the thesis .9 The expected structure of the thesis 10 CHAPTER THEORETICAL GROUNDS OF COMMERCIAL CONCILIATION 11 1.1 Definition and legal characteristics of commercial conciliation 11 1.1.1 Definition of dispute and commercial dispute 11 1.1.2 Definition of commercial conciliation 13 1.1.3 Legal characteristics of commercial conciliation 17 1.2 Classification of commercial conciliation 18 1.2.1 Base on the methods of commercial conciliation 18 1.2.2 Base on the forms of commercial conciliation 20 1.3 The advantages of commercial conciliation .22 1.4 The process of forming the commercial conciliation laws in Vietnam .24 v CONCLUSION OF CHAPTER 28 CHAPTER LEGAL FRAMEWORK FOR COMMERCIAL CONCILIATION IN VIETNAM 29 2.1 Provisions of the laws on commercial conciliator 29 2.1.1 Provisions on condition for practicing commercial conciliator .29 2.1.2 Provisions for rights and obligations of commercial conciliator .33 2.1.3 The prohibited acts for commercial conciliator .34 2.2 Provisions of the laws on commercial conciliation organizations 35 2.2.1 Provisions for the form of commercial conciliation organizations 35 2.2.2 Provisions for the rights and obligations to commercial conciliation organization 37 2.3 Order and procedures for commercial conciliation 39 2.3.1 Conciliation agreement 39 2.3.2 Conciliation order and procedures .40 2.3.3 Termination of conciliation proceedings 42 2.3.4 Recognition of successful conciliation results 43 CONCLUSION OF CHAPTER 45 CHAPTER COMPARISON AMONG UNCITRAL MODEL LAW, SINGAPORE LAW AND VIETNAMESE LAW ON COMMERCIAL CONCILIATION – PROPOSALS FOR THE LAW OF VIETNAM 46 3.1 Comparison between Decree No 22/2017/ND-CP and UNCITRAL Model Law on International Commercial Conciliation 46 3.1.1 Overview of UNCITRAL Model Law on International Commercial Conciliation 46 3.1.2 Similarity and difference between Decree No 22/2017/ND-CP and UNCITRAL Model Law on International Commercial Conciliation 47 3.2 Comparison between the Singaporean law and Vietnamese law on commercial conciliation .50 3.2.1 The scope of application of the Mediation Act 51 vi 3.2.2 Stay of legal proceedings pending mediation 51 3.2.3 The confidentiality of mediation communications 51 3.2.4 Recording of mediated settlement agreement as order of court 52 3.2.5 Foreign counsels and mediators .53 3.2.6 Evaluation of Singapore's commercial mediation model and its applicability in improving Vietnamese laws 53 3.3 Proposals for the law of Vietnam 56 3.3.1 Practical issues of the laws on commercial conciliation in Vietnam 56 3.3.2 Proposals for improving the laws on commercial conciliation in Vietnam 60 3.3.2.1 The necessary for developing and improving the laws on commercial conciliation in Vietnam 60 3.3.2.2 Some specific solutions to improving the laws on commercial conciliation in Vietnam 63 CONCLUSION OF CHAPTER 72 CONCLUSION 73 REFERENCES 75