LE HONG ANH453522 ALTERNATIVE DISPUTE RESOLUTION ADR METHODS IN AMERICAN AND VIETNAMESE CONTRACT LAW: A COMPARATIVE PERSPECTIVE BACHELOR'S THESIS... LIST OF ABBREVIATIONSexempli gratia f
Research objectives of the Thesis
This article aims to provide a thorough comparative analysis of alternative dispute resolution (ADR) methods in American and Vietnamese contract law, highlighting the importance of historical, cultural, and institutional contexts in both legal systems Additionally, it critically evaluates the practical implications of these ADR methods within the respective legal landscapes A key objective of the thesis is to formulate policy recommendations to improve the utilization and effectiveness of ADR in both American and Vietnamese contract law.
5.1 Research objects of the Thesis
This thesis evaluates and compares Alternative Dispute Resolution (ADR) methods within the legal frameworks of American and Vietnamese contract law, focusing on their application, effectiveness, and cultural influences It aims to provide a comprehensive understanding of ADR's role in resolving contractual disputes in both systems, while also addressing practical implications such as enforceability and judicial support The research identifies opportunities for cross-jurisdictional learning and improvement, and offers policy recommendations to enhance the effectiveness and utilization of ADR methods in both American and Vietnamese contexts.
5.2, Research scope of the Thesis
This thesis examines and contrasts Alternative Dispute Resolution (ADR) methods in American and Vietnamese contract law, taking into account historical, cultural, and institutional factors It evaluates the practical effects of these ADR methods and seeks to shed light on their significance and feasibility in each legal framework Furthermore, the thesis proposes policy recommendations aimed at improving the adoption and efficacy of ADR methods in both jurisdictions.
The Thesis employs dialectical and historical materialism based on Marxist-Leninist philosophy, integrating Ho Chi Minh's views on the State and Law alongside the Communist Party and State of Vietnam's perspectives on establishing a rule of law, judicial reform, and international integration This approach facilitates a thorough comparative analysis of Alternative Dispute Resolution (ADR) methods, taking into account legal, cultural, and policy dimensions within both legal systems.
First, the analysis method, combining theoretical research with practice, is the main method used in this Thesis to clarify the regulations on alternative dispute resolutions in contract law.
The synthesis method is primarily employed in gathering documents, opinions, and solutions to enhance the legal framework surrounding alternative dispute resolution in Vietnam.
Third a systematic method is used to sequence and find consistency among common issues of alternative dispute resolutions legislation.
The fourth comparative legal analysis focuses on a thorough examination of the legal frameworks, statutes, and judicial precedents governing Alternative Dispute Resolution (ADR) methods in both American and Vietnamese contract law This analysis seeks to uncover similarities and differences between the two systems, highlighting potential areas for cross-jurisdictional learning and enhancement.
In addition to the preface; literature review of previous researches related to the topic, conclusion and references, the contents and results of the Thesis include three chapters:
Chapter 1 Theoretical issues of alternative dispute resolution methods in contract lew
Chapter 2 Alternative dispute resolution methods in American and Vietnamese contract law
Chapter 3 Implications to improve provisions on alternative dispute methods inVietnamese contract law
CHAPTER 1 THEORETICAL ISSUES OF ALTERNATIVE DISPUTE RESOLUTION METHODS 1.1 The concept of contract and contract dispute
A contract serves as the legal foundation for facilitating civil exchanges across various aspects of social life, compelling the parties involved to adhere to their commitments to avoid facing corresponding sanctions Today, there are primarily two main approaches to contracts.
The subjective approach to contracts defines them as a meeting of the parties' wills, resulting in various legal consequences Richard Austen-Baker proposes that the enduring concept of "meeting of minds" may stem from a misinterpretation of the Latin phrase consensus ad idem, which accurately signifies a mutual agreement.
A contract is formed when parties demonstrate their mutual assent through objective conduct, emphasizing the importance of consent This subjective approach highlights that the legal effect of a contract is to create obligations to act or refrain from acting in specific ways The concept of a "meeting of the wills" is central to this understanding, as it relies on the personal interpretations of the parties involved If the parties have differing understandings of the contract terms, it may render the agreement invalid Ultimately, this theory prioritizes individual beliefs and intentions over an objective analysis of the contract's language.
‘ Nguyen Hàn Phuong (2022), Law on contracts from the perspective of comparanve lav, People’s Police Publishing House , Ha Noi,p 33-38.
*R Austen-Baker (2002), Gilmore and the Srange Case of the Faihe of Contract to Die After All, 18 Jounal of Contract Lew 1
* e.g Lord Steyn (1997), Contract Lew: Fidfilling the Reasomible Expectations of Honest Men, 113 LQR 433; cf.
Artck 133 BGB m Germany, where “the actual will of the contracting party, not the literal sense of words, is to be determined.
‘Duncan Fairgreve (2016), Comparative lew in practice: contract law in a mid-cheonwl jraisdiction, Oxford; Portland, Oregon: Hart Publishng,p 39.
The objective approach to contracts posits that a contract represents a party's voluntary intention to be bound, with their conduct reflecting this intention According to Robert W Emerson and John W Hardwick, a contract is defined as a legally enforceable agreement, whether expressed or implied This theory underscores the importance of actions over intentions, suggesting that a contract is not merely an agreement but a series of observable actions that suggest an agreement exists By prioritizing external actions instead of internal beliefs, this approach offers a clear and objective standard for determining the existence and terms of a contract.
Vietnamese researcher Ngo Huy Cuong defines a contract as a method of organizing social life, where parties collaborate to meet their needs and share interests while respecting each other's rights This definition aligns with the objective theory of contracts, highlighting the cooperative nature of agreements and the importance of mutual assent through observable actions By focusing on shared interests and the avoidance of infringement, this perspective underscores the role of contracts in promoting societal welfare.
Contract law operates under three primary systems: common law, civil law, and mixed-law jurisdictions In common law jurisdictions, a valid contract must include consideration, while civil law and most mixed-law jurisdictions have different requirements.
` Robert W Emerson and Jolm W Hardwick (1997), Brisiness Leow, Barron’s educational series Inc., USA,p 65.
’ Vice Dean Cavil Law Faculty, Hanoi Law University.
“Ngo Huy Cuong (2013), Text book of Contract Lae - General, (For postgrachute traning), Hanoi National
Unwersty Publishing House in Hanoi highlights that various jurisdictions emphasize the necessity of mutual agreement between parties in a contract Despite differing approaches, they all acknowledge the fundamental aspect of a contract as the collective intention to create binding legal obligations Consequently, a contract can be defined as an agreement in which one or more parties commit to another party or parties to transfer property or perform specific actions, or refrain from doing certain tasks.
A contract dispute is defined as a conflict or controversy involving competing claims or rights, as noted in legal dictionaries like Black's Law Dictionary This definition highlights the essence of disputes as rooted in opposing assertions, yet it may oversimplify the complexities inherent in modern legal conflicts By focusing solely on conflicting claims, this perspective risks overlooking the diverse range of scenarios that characterize legal disputes today.
According to Brown and Marriott’s ADR Principles & Practice, a dispute is defined as a legal conflict that can be resolved through various means such as negotiation, mediation, conciliation, or third-party settlement This definition highlights the importance of adaptability and flexibility in addressing legal conflicts However, it may not fully capture the complexities of certain multi-faceted disputes that necessitate a more tailored approach Additionally, the broad nature of this definition may overlook specific nuances inherent in different types of disputes, indicating a need for further elaboration to accurately represent the diverse methods of legal conflict resolution.
Charles Fried a prominent legal scholar and former US Solicitor General,
THEORETICAL ISSUES OF ALTERNATIVE DISPUTE
The definition of cowfracf : Me 1.1.2 The definition and characteristics of contract dispute ¿Ð 1.2 Contract disp ute resolution 1.2.1 The concept of contract dispute resolution - thú 1.2.2 Significance of contract dispute resolhufion
A contract serves as the legal foundation for facilitating civil exchanges in various aspects of social life, obligating the parties involved to adhere to their commitments to avoid potential sanctions Today, there are primarily two approaches to understanding contracts.
The subjective approach defines a contract as a meeting of the parties' wills, resulting in various legal consequences Richard Austen-Baker proposes that the persistent notion of a "meeting of minds" may stem from a misinterpretation of the Latin phrase consensus ad idem, which more accurately signifies agreement on the same thing.
A contract is formed when parties demonstrate mutual assent through their conduct, emphasizing the importance of consent This subjective approach highlights that a contract creates an obligation to act or refrain from acting in a certain way It is based on the "meeting of the wills," where personal understandings of the terms are crucial If the parties have differing interpretations of the contract's terms, it may be deemed invalid Ultimately, this theory focuses on individual beliefs and intentions rather than an objective analysis of the contract itself.
‘ Nguyen Hàn Phuong (2022), Law on contracts from the perspective of comparanve lav, People’s Police Publishing House , Ha Noi,p 33-38.
*R Austen-Baker (2002), Gilmore and the Srange Case of the Faihe of Contract to Die After All, 18 Jounal of Contract Lew 1
* e.g Lord Steyn (1997), Contract Lew: Fidfilling the Reasomible Expectations of Honest Men, 113 LQR 433; cf.
Artck 133 BGB m Germany, where “the actual will of the contracting party, not the literal sense of words, is to be determined.
‘Duncan Fairgreve (2016), Comparative lew in practice: contract law in a mid-cheonwl jraisdiction, Oxford; Portland, Oregon: Hart Publishng,p 39.
The objective approach to contracts views them as voluntary commitments by a party, where their conduct reflects their intention to be bound According to Robert W Emerson and John W Hardwick, a contract is a legally enforceable agreement, whether explicit or implicit This theory emphasizes that a contract is more than just a mutual agreement; it consists of observable actions that suggest an agreement Consequently, the actual intentions of the parties are secondary to their actions, which are interpreted by an external observer By prioritizing these external actions over internal beliefs, this approach establishes a clear and objective standard for determining the existence and terms of a contract.
Vietnamese researcher Ngo Huy Cuong defines a contract as a means of organizing social life, where parties collaborate to fulfill their needs and share interests while respecting each other's rights and societal welfare This definition aligns with the objective theory of contracts, highlighting the cooperative nature of agreements and the importance of observable actions and mutual assent in ensuring that individual interests do not infringe upon one another.
Contract law is primarily governed by common law, civil law, or mixed-law jurisdictions, each with distinct principles In common law jurisdictions, a valid contract typically necessitates consideration, while civil law and most mixed-law jurisdictions have different requirements for contract validity.
` Robert W Emerson and Jolm W Hardwick (1997), Brisiness Leow, Barron’s educational series Inc., USA,p 65.
’ Vice Dean Cavil Law Faculty, Hanoi Law University.
“Ngo Huy Cuong (2013), Text book of Contract Lae - General, (For postgrachute traning), Hanoi National
Unwersty Publishing House in Hanoi highlights that various jurisdictions emphasize the necessity of a mutual agreement between parties, showcasing distinct approaches while acknowledging the fundamental aspect of a contract: the unified intention to create binding legal consequences Thus, a contract can be defined as an agreement in which one or more entities commit to transferring property or performing specific actions, thereby establishing a contractual relationship.
1.1.2 The definition and characteristics of contract dispute From legal perspectives, the definition of a dispute can be found in many legal dictionaries, especially cited in Black's Law Dictionary (2TM edition), a dispute is defined as "4 conflict or controversy; a conflict of claims or rights; an assertion of aright, claim, or demand on one side, met by contrary claims or allegations on the other" The definition of a dispute as presented portrays it as a conflict or controversy rooted in claims or rights, however, the avowed description may pose limitations in encapsulating the intricacies of contemporary legal disputes This definition's focus on opposing claims and allegations may inadvertently oversimplify the multifaceted nature of legal conflicts Consequently, it runs the risk of excluding the diverse array of dispute scenarios that exist within the legal realm
According to Brown and Marriott’s ADR Principles & Practice, a dispute is defined as a legal conflict resolved through various methods such as negotiation, mediation, conciliation, or third-party settlement This definition highlights the flexibility and adaptability needed to effectively address legal conflicts However, it may not fully capture the complexities of certain multifaceted disputes that necessitate more tailored approaches Additionally, the broad nature of the definition may overlook the nuances present in different types of disputes, suggesting a need for further elaboration to accurately represent the diverse methods of legal conflict resolution.
Charles Fried a prominent legal scholar and former US Solicitor General,
A contract dispute is defined as a conflict between parties regarding their rights and obligations under a contract, as highlighted by various legal cases Understanding the specific terms and intentions of the parties involved is crucial in defining such disputes While the primary focus is often on rights and obligations, it is essential to recognize that conflicts can also arise from issues related to contract formation, termination, and other consequential matters.
Ewan McKendrick, an expert in contract law, defines a contract dispute as a disagreement between parties regarding the formation, interpretation, performance, or termination of a contract He emphasizes that such disputes can occur at different stages of the contracting process, from the initial agreement to its execution and conclusion This definition complements Fried's perspective on contract disputes.
A contract dispute refers to conflicts or disagreements that emerge from contractual relationships between parties concerning the fulfillment or failure to fulfill rights and obligations outlined in the contract, resulting in violations of the parties' rights and interests.
A contract dispute is characterized by its various forms, often stemming from contract violations such as non-payment, delayed performance, substandard deliverables, or breaches of contractual terms, which can lead to contentious disagreements over liability and enforcement However, it is important to note that not all contract violations result in disputes.
A contractual relationship involves parties where one party may violate obligations, leading to disagreements about the violation and its consequences Classifying contract disputes based on criteria such as the legal nature of the contract, the relevant field, disputed value, and foreign elements is crucial for determining the appropriate dispute resolution method and applicable law Common issues include disagreements over contract terms, interpretational ambiguities, breaches, and fraud Additionally, the legal framework and available remedies significantly affect the dynamics and strategies employed in resolving contract disputes, shaping their characteristics and outcomes.
1.2.1 The concept of coutract dispute resolution Dispute resolution is the process through which competent agencies or organizations review relevant documents and evidence to handle civil, marital and family, business, commercial, and labor disputes and protect the legitimate rights and interests of individuals, agencies, and organizations !° Contract dispute resolution specifically involves the selection of competent agencies or organizations by the partiesinvolved in a contractual relationship These agencies or organizations consider and make decisions to resolve conflicts of interest that may arise during the implementation of the contract If the parties are unable to resolve the dispute on their own, a competent dispute resolution agency will handle the matter Overall, contract dispute resolution can be implied that a method employed to address conflicts, disagreements, or breaches of rights and obligations that arise from contractual agreements
Upon examining the concept of contract dispute resolution, it becomes evident that certain distinct characteristics as follows:
In term of subjects involved the resolution process The primary subjects involved are the parties to the contract, which may include individuals, businesses, or
!* Mmistry of Fastice , Institute of Legal Sciences (2006), Lew Dictionary, Encyclopedia Publishing House and
Alternative disp ute resolution methods Seearesszz.a3 1 The definition of alternative dispute resolution methods
1.3.1 The definition of alternative dispute resolution methods Contract disputes are an inevitable aspect of modern business and legal environments Contractual ADR methods refer to the specific ADR mechanisms that parties agree to use in their contract to resolve disputes that may arise These methods are included in the dispute resolution clause itself and provide a pre-determined framework for resolving disagreements.
Presented by Mose and Kleiner in The Emergence of Alternative Dispute
Alternative Dispute Resolution (ADR) is a structured process designed to resolve disputes amicably without the need for court intervention By utilizing various techniques and the support of a neutral party, ADR aims to minimize litigation costs, which include time, emotional strain, financial expenses, and damage to partner relationships The process emphasizes a deliberate approach to conflict resolution, aligning with the overarching goal of achieving a peaceful settlement However, it is important to recognize that ADR may not be suitable for complex cases that require formal legal adjudication.
Marat defines Alternative Dispute Resolution (ADR) as a method that complements, but does not replace, traditional judicial processes It is important to note that utilizing ADR techniques does not prevent parties from pursuing their disputes in court or through arbitration This distinction clarifies the scope and boundaries of ADR in the context of legal resolution.
ADR may highlight an overreliance on formal legal proceedings, which could impede its adoption in specific situations Furthermore, finding the right balance between ADR and formal adjudication poses challenges in identifying the most suitable method for resolving individual disputes.
Inrecent years, there has been more discussion about taking a systems approach in order to offer different kinds of options to people who are in conflict, and to foster
Not all disputes are suitable for informal resolution; certain cases require formal processes such as grievances, court intervention, police involvement, or government oversight Meanwhile, some conflicts can be resolved amicably between the parties involved with adequate support and guidance Additionally, mediation or arbitration may be necessary for other disputes, highlighting the importance of selecting the appropriate method for resolution.
The emergence of alternative dispute resolution (ADR) in business is increasingly significant, as highlighted by Mose and Klemer (1999), emphasizing its role in fostering equal opportunities within contractual frameworks Mukhamydiyey (2011) further explores the importance of mediation clauses in business contracts, underscoring the effectiveness of ADR mechanisms in resolving disputes efficiently.
“Lynch J (2001), ADR coud Beyond: A Systems Approach to Conflict Management, Negotiation Jounal, Vohme
“alternative” dispute resolution usually means “a method that is not the courts”. However, ADR is also increasingly being adopted as a tool to help settle disputes within the court system P516
Alternative Dispute Resolution (ADR) encompasses various methods for resolving disputes outside of traditional litigation, focusing on conflict resolution techniques that do not involve governmental authority The primary goals of ADR are to reduce adversarial attitudes and foster improved communication and openness between disputing parties This approach often results in earlier settlements, saving time, costs, and reducing stress for all involved Additionally, a significant benefit of ADR is the increased likelihood that parties can maintain a working relationship after the dispute has been resolved.
1.3.2 Classification of alternative dispute resolution methods Appropriate dispute resolution may take many forms Basically the intervention of a third party making the decision is at the extreme end of appropriate dispute resolution It is commonly called arbitration There are other forms, including: conciliation, mediation, early neutral evaluation, mini-trials, med-arb, arb/med fact- finding, rights-based mediation, interest-based mediation, neutral-based mediation
Generally, ADR maybe classified into three major areas!”
1.2.2.1 Negotiation Negotiation is a method of resolving disputes without the involvement of any state agency or third party It embodies the freedom of agreement and determination of the involved parties Negotiations are only meaningful if the parties truly desire to resolve their dispute and provided that they are prepared to make at least some concessions * In the majority of contractual dispute resolution clauses, parties stipulate negotiation as the method for resolving disputes in case of contract breaches.
‘* J Pirie Andrew (2000), Alternative dispute resolution: skills, science, coxd the law , Toronto, vm Law p 5
‘“Islam, Sharia (2013), Alternative Dispute Resolution: Mechanisms for Legal Recess in the Muslim Commuouty , London, UK.
'' Kenneth Glaser (2001), Contact Disputes cad Alternative Dispute Resolution: Some Observations , Advocate
(Vancouver Bar Association) 59 Advocate (Vancouver), Vol 59 Part 5,p 725-726.
“R Fisher, W L Uy and B Patton (2011), Gesnng to Yes: Negotiating Agreement without Giving in, Penguin
The result of negotiations often comprises commitments and agreements on specific solutions to resolve previously arisen disputes %
This method offers several advantages, including the absence of complex procedures, a lack of stringent legal restrictions, and cost-effectiveness Additionally, it minimizes damage to relationships between parties and preserves business confidentiality Dispute resolution through negotiation typically occurs during contract performance, following a violation, or after the contract ends, initiated by one party proposing solutions to resolve disputes and facilitate compromises.
Negotiation as a dispute resolution method has its drawbacks, primarily requiring both parties to be sincere, honest, and highly cooperative, often necessitating compromise for successful outcomes The results of negotiations rely entirely on the voluntary agreement of the involved parties, which diminishes its legal standing Additionally, if disputes arise post-negotiation, initiating legal action can be complex, particularly in establishing the grounds for a lawsuit—whether stemming from contract violations, improper execution, or unmet commitments Enforcing agreements reached through negotiation can also pose significant challenges.
1.2.2.2 Out-of court mediation Mediation, akin to negotiation, stands as a chosen method for resolving disputes by the involved parties Differing from negotiation, mediation contains an element of aneutral third party This third party, jointly accepted or designated, acts as a facilitator to guide the parties in reaching suitable solutions to resolve conflicts and put an end to hostilities The mediator is not acting as ajudge or counsel, and has no power to impose a decision on the parties.”
“Conciliation” is aterm that has led to some confusion with “mediation” As the
‘Nguyen Thi Khe (1997), Economic Contracts coxi Forms of Economic Dùptde Resolution, Dong Nai Pulisher House , Dong Nai,p 56.
According to the 2nd edition of Black's Law Dictionary (1991), the terms "mediation" and "conciliation" are often used interchangeably in practice, leading to a blurred distinction between them In some contexts, particularly within the building industry, conciliation is viewed as a form of mediation where the conciliator neither imposes decisions nor offers opinions Conversely, others, such as those involved in the London Common Law and Commercial Bar Association Pilot Scheme, differentiate conciliation from mediation by asserting that the conciliator ultimately provides an opinion and an assessment regarding the likely outcome of a trial.
The preference for the term "mediation" over "conciliation" is rooted in two key reasons Firstly, "conciliation" is often associated with industrial relations and family disputes, while "mediation" more accurately represents the role of a neutral intermediary who facilitates communication and negotiation between conflicting parties.
In the United States, "mediation" is a widely accepted practice, significantly advanced by IDR (Europe) Limited, which has branded and promoted this process IDR specifically highlights 'commercial mediation' to set it apart from family mediation, addressing various disputes such as personal injury, partnership disagreements, and other issues typically classified as 'commercial litigation' in legal settings.
ALTERNATIVE DISPUTE RESOLUTION METHODS IN
Alternative disp ute resolution methods in American contract law 20 1 Negotiation as an alternative dispute resolution method in
2.1.1 Negotiation as au alternative dispute resolution method in American contract law
Section 2 of the FAA upholds the validity and enforceability of arbitration agreements, unless a ground exists in law or equity for their revocation This underscores the legal foundation enabling parties to engage in negotiation with the assurance that arbitration agreements are binding and enforceable, thereby influencing the negotiation landscape Section 3 of the FAA provides the provision for courts to stay proceedings in actions referable to arbitration, underscoring the FAA's impact on the negotiation process by facilitating the progression of disputes to arbitration Furthermore, Section 9 of the FAA specifically addresses the confirmation of arbitration awards, showcasing the legal framework's influence beyond the negotiation phase by establishing the procedure for confirming arbitral awards in court and enforcing them as if they were a court judgment
2.1.1.1 Choice of negotiation While there may not be specific laws that solely govern negotiation as a method for resolving contract disputes, the legal framework in the US supports the inclusion of negotiation in contract dispute resolution clauses, allowing parties to choose negotiation as an initial step in resolving their disputes.
In the United States, the use of Alternative Dispute Resolution (ADR) methods is mandatory, as federal courts are required by law to permit at least one ADR method in all civil cases Additionally, in instances where cases are assigned to a Magistrate Judge, this requirement applies even before all parties consent to the Magistrate Judge's jurisdiction.
28 USC § 636(c), the Magistrate Judge shall have the authority to refer cases to ADR programs and to grant relief from the requirements of these ADR local rrles""39.
American judges encourage litigants, courts advisers and lawyers to contact and
The United States District Court's ADR Local Rules, accessible at http://www.annycand.uscomts.gov/rules/ADR, emphasize the importance of consulting with trust units of ADR to evaluate options for individual cases ADR involves various procedures, including negotiation, overseen by a designated ADR Magistrate Judge This judge is tasked with managing the ADR Unit and collaborating with the ADR Director and legal staff on policy matters, program design, evaluation, education, training, and administration.
Encouraging litigants, court advisers, and lawyers to utilize ADR units demonstrates a proactive approach to exploring case-specific options This strategy highlights the importance of informed decision-making and the effective use of ADR processes, such as negotiation, under the guidance of a designated ADR Magistrate Judge The role of the ADR Magistrate Judge is pivotal in reinforcing the significance of ADR within the court system and ensuring its efficient administration To further enhance the functionality and accessibility of ADR methods, it is essential to promote awareness and understanding among legal professionals and stakeholders, alongside ongoing education, training, and program development overseen by the ADR Magistrate Judge.
Currently, there is no specific governing provision for negotiation laws in the US, recognizing that each negotiation possesses unique characteristics This indicates that there is no singular or exclusive approach to organizing a bargaining session.
In many contracts, it is essential for the parties involved to engage in face-to-face meetings to address and resolve disputes Typically, these agreements stipulate that negotiation is a required step, often necessitating the involvement of designated individuals or senior executives to facilitate the discussions.
'! Oana Rwanda Gherghina, Comparative study between FIDIC Disprite Adjudication and Negotiation as
Alternative Dispute Resolution methods , Law Jounal Library - HemOnime , availabh at: s Jhemontine org/HOL (Page Ivaudile=hem Mcxistre 30 1 7đ:1d&0 6:c oll ction=joumals cindex=, accessed on 28 November 2023.
The legal framework surrounding 'good faith' negotiations remains unsettled, as highlighted by various clauses that mandate parties to engage in 'bona fide' negotiations For further details, refer to the source available at http://Anmrcanduscouts.gov/locainiles/ADR, accessed on 28 November 2023.
2.1.2 Mediation as au alternative dispute resolution method in American contract law
2.1.2.1 Principles First, the principle of freedom of will: In the US, mediation is a consensus- building process where parties resolve disputes with a mediator's guidance This active participation aims to generate outcomes aligning with their interests, often resulting in greater satisfaction than litigation Parties have freedom in enforcing agreements and can seek support from legal counsel or other individuals during mediation.
Under the UMA regulations, the principle of confidentiality ensures that all parties involved in mediation, including mediators and lawyers, enjoy varying levels of privilege to safeguard the discussions from disclosure While parties may choose to waive these protections, they are still required to respect the rights of other participants Furthermore, mediators are restricted from revealing mediation details to the court or offering testimony regarding their opinions or assessments in a judicial setting.
The principle of equality in mediation emphasizes the open expression of each party's viewpoints and their voluntary commitment to the final decision This equality is further reinforced when mediation effectively addresses disputes at their core, allowing for the active participation of all parties involved Ultimately, the goal is to achieve mutually satisfactory outcomes, ensuring that each disputing party feels content and gratified with the result, while willingly honoring the agreement without any external pressure from judicial authorities.
2.1.2.3 The mediation agreement Regarding formal validity, a valid agreement to mediate (AtM) must be both formally and substantively valid 33 Formal validity relates to the external expression of the agreement Unlike agreements to arbitrate, for an AtM to be formally valid there ằ This nchades considerations such as whether the agreement has to be writing, signed, na special font or color,stapled or digtal Substantive (or material) validity concems the legality of the content of the parties' agreement,their capacity and consent to enter the agreement, public policy, and sufficient certamty. are special requirements outside of the applicable contract law requirements Thus, such agreements do not have to be in writing or signed However, the court in some states, for example, a Texas appellate court affirmed enforcement of a handwritten mediation agreement, stating that the parties “agree[ đ] to enter into aformal settlement agreement," because key terms were set forth and there was no language clarifying that the parties did not intend to be bound by the handwritten agreement."#
The substantive validity of Alternative Dispute Resolution (AtM) is influenced by public policy and mandatory rules, which cannot be overridden by contractual agreements Public policy governs contracts that involve non-negotiable matters, such as public administration and third-party interests For example, in the case of Garrett v Hooters-Toledo, American courts declined to enforce a mediation clause that required employees to request mediation within ten days of a claim arising, stating that failure to do so would result in forfeiting the claim Additionally, the clause mandated that mediation occur outside the employee's workplace, leading the court to deem it unconscionable due to the excessive burdens it placed on former employees seeking to assert their rights.
The Uniform Mediation Act (UMA) outlines fundamental principles and shared privileges for parties involved in mediation while emphasizing the importance of decision-making freedom It does not impose strict procedures, allowing individual states to adopt mediation methods that reflect their unique customs and characteristics.
In the US, the development of private professional mediation centers external
* Border Gateway, LLC v Gomes, No 14-10-01266-CV, 2011 WL 4361485, "1-4 (Tex App 14" Sept 20, bí tin v Hooters- Toledo, 205 F Supp 2s 774 (ND Ohio 2003).
'* Jamifer Ralph, Unconucionable Mediation Claue:: Garret v Hooters- Toledo, Harvard Negotiation Law Review, 10 (2005) 383 ,p 34.
Garrett, supra note 40,783, highlights that courts have increasingly delegated disputes to mediation centers when appropriate Through formal agreements, courts can transfer certain jurisdictional powers to these centers, which then manage the mediation process Cases that remain unresolved through mediation are returned to the courts for further handling Although linked to the judicial system, mediation centers function independently as separate legal entities from the courts.
IMPLICATIONS TO IMPROVE ON ALTERNATIVE
Guiding principles for the proposals to imp rove provisions on
An in-depth analysis of Vietnam's legal landscape reveals a critical need for specific directions and tangible recommendations to improve the regulations governing negotiation, conciliation, and arbitration in contract disputes Enhancing these legal frameworks is essential to reaffirm the significance and effectiveness of these dispute resolution methods in Vietnam.
The legal framework for resolving business disputes through Alternative Dispute Resolution (ADR) methods in Vietnam must be refined to align with the directives of the Party and State, addressing the needs of the current socio-economic strategy and the trends of international economic integration Judicial reforms are essential for maintaining political and social stability, which is crucial for the advancement of the legal system In developing business and contract laws, it is vital to reflect Vietnam's practical realities while preserving its cultural identity and thoughtfully integrating relevant international experiences.
The development of effective mechanisms for resolving business disputes must prioritize the interests of the involved parties while aligning with the sustainable economic and social strategies of the Party and State Enhancing the skills and knowledge of mediators and arbitrators is essential for improving the efficiency and effectiveness of legal enforcement in these matters.
To enhance the resolution of business disputes in Vietnam, the legal framework for negotiation, conciliation, and arbitration should be improved by incorporating relevant international provisions This strategy seeks to cultivate unique Vietnamese methods of dispute resolution that align with global standards and practices.
The refining process must include a thorough examination of foreign and international regulations regarding business dispute resolution methods like negotiation, conciliation, and arbitration Given that these approaches are relatively novel in Vietnam, it is essential to learn from global benchmarks in this field Notably, organizations such as the United Nations and the International Chamber of Commerce have established specific rules and procedures for mediation and arbitration, which can serve as crucial resources for enhancing the Vietnamese legal framework for alternative dispute resolution (ADR) in contract law.
3.2 Specific proposals te improve provisions on alternative dispute resolution methods in Vietnamese contract lw
3.2.1 Specific proposals to improve provisions on negotiation in Vietnamese contract law
There is an urgent need for legal regulations in Vietnam to facilitate dispute resolution through negotiation, particularly for contract disputes The current legal framework is insufficient, and it is essential to mandate negotiation as a prerequisite before escalating disputes to courts or arbitration This includes establishing clear procedures, guidelines for conduct, and the recognition of negotiated settlements outside formal proceedings Developing these regulations is crucial for strengthening the legal framework and providing an effective means for businesses to resolve disputes amicably through negotiation.
To improve the effectiveness of negotiation as an alternative dispute resolution (ADR) method in Vietnam, it is essential to implement mechanisms that enable courts to acknowledge and enforce negotiated agreements By adopting a model similar to that of the United States, Vietnam can enhance judicial support and recognition for negotiated settlements, thereby strengthening the overall ADR framework.
3.2.2 Specific proposals to improve provisious ou mediation in Vieftamtese contract law
Firstly, research is needed to develop a Mediation Law (outside of the court) The
The US Uniform Mediation Act (UMA) encompasses mediation across diverse fields such as family, land, and commercial disputes, whereas Vietnam currently only has Decree 22/2017/NĐ-CP, which addresses mediation solely in commercial conflicts This disparity highlights the need for Vietnam to consider enacting a comprehensive Mediation Law to govern out-of-court mediation activities Establishing specific legal frameworks is crucial for the successful implementation of mediation practices in Vietnam.
US model of private mediation centers, allowing them to determine mediation procedures and respecting party autonomy, resulting in widespread access and successful outcomes.
To enhance the understanding of U.S courts' jurisdiction in recognizing mediated outcomes, it is essential to amend Article 31 of the CPC to clarify the court's authority in endorsing these outcomes in business and commerce, similar to the provisions in Article 27(7) Furthermore, the CPC should include additional guidelines for recognizing mediated outcomes in international mediations, reflecting the increasing importance of mediation in resolving international commercial disputes and addressing the complexities involved in the acknowledgment and enforcement of foreign arbitral awards.
To enhance international commercial dispute resolution, it is recommended that an assessment be conducted to explore the potential accession to the Singapore Convention on Mediation and to align national mediation regulations with its provisions Notably, the US is a supporter of this Convention, which presents a practical alternative for resolving cross-border disputes without resorting to litigation over breaches of mediated settlement agreements By utilizing the Convention, businesses can safeguard their reputation and maintain long-term relationships, while benefiting from harmonized enforcement mechanisms that streamline the process of resolving international disputes.
3.2.3 Specific proposals to improve provisions on arbitration in Vietnamese contract law
To enhance the clarity and effectiveness of arbitration in Vietnam, it is essential to amend the 2005 Commercial Law, specifically Article 3, Section 1, to broaden the definition of "commercial activities" in line with international standards Currently, Vietnamese law lacks a clear delineation of arbitrator activities, leaving ambiguity regarding which disputes are eligible for arbitration Rather than enumerating specific dispute types, a more effective approach would be to expand the definition and outline guiding principles for disputes outside arbitration jurisdiction This aligns with the principle of permitting actions not explicitly prohibited by law, which benefits arbitrators and fosters a more conducive environment for business and commerce.
In the United States, the FAA and UAA oversee the validity of arbitration agreements in maritime transactions, which include charter parties, bills of lading, and other commerce-related agreements as defined in Section 1 of the FAA "Maritime transactions" encompass various matters under admiralty jurisdiction, while "commerce" refers to activities among states, foreign nations, and U.S territories Notably, this regulation does not apply to employment contracts for seamen or railroad employees This illustrates the flexibility of arbitration in the U.S Moreover, when referencing "commercial arbitration" in legal documents, it is crucial to ensure clarity and consistency to prevent overlap or contradictions, and if arbitrators are to handle non-commercial disputes, the term "arbitration" should be distinctly defined, specifying the type if necessary.
The proposal seeks to clarify the authority for resolving disputes through arbitration in Vietnam, extending beyond commercial arbitration to include cases where at least one party is engaged in commercial activities This ambiguity complicates the practical application of arbitration limits One interpretation suggests that only disputes arising from commercial activities are subject to arbitration, while another posits that any dispute involving a party with commercial activities falls under arbitration jurisdiction, regardless of the dispute's nature To align with international standards, such as those in U.S arbitration laws, it is essential to broaden the scope of Vietnamese arbitration to encompass civil disputes Arbitration should be based on mutual agreement between parties, allowing for the resolution of various civil disputes, while explicitly excluding certain matters like family issues, moral rights, and those requiring state intervention Defining the arbitrator's jurisdiction by specifying disputes that cannot be arbitrated, such as bankruptcy and complex family matters, would enhance clarity and effectiveness in the arbitration process.
The third proposal focuses on enhancing the regulations concerning the effects of arbitral awards Currently, the law does not provide clear criteria for courts to annul an arbitral award deemed "contrary to the basic principles of Vietnamese law." While Article 14(2) of Resolution 01/2014/NQ-HDTP offers some clarification on this term, it remains insufficient for guiding judicial decisions on annulment.
* Article 2 Law on Commercial Arbitration 2010.
"Infact, there is a case where an arbitration centre , Interpret that law this way and accept a bow dispute, Le Tha
In addressing the disparities between employees and employers regarding non-compete agreements, it is essential to clarify the "fundamental principles of Vietnamese law," as vague definitions contribute to the misuse of annulment requests for arbitral awards The inconsistent application of these principles heightens the risk of unjust arbitration awards being invalidated To improve this situation, it is crucial to revise Article 14(2) of Resolution 01/2014/NQ-HDTP by clearly defining the fundamental principles, specifying conflicts with these principles that the arbitral tribunal failed to uphold, and establishing that an arbitral award must substantially violate specific interests to warrant annulment If these criteria are not met, the court should reject annulment petitions Drawing inspiration from the US legal framework, which offers clear guidance on interpreting fundamental legal principles, can help create a more predictable and coherent arbitration system in Vietnam.