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MINISTRY OF EDUCATION MINISTRY OF JUSTICE AND TRAINING HANOI LAW UNIVERSITY ========&======== LÊ HƯƠNG GIANG TOPIC IMPROVING THE LAW ON COMMERCIAL MEDIATION IN VIETNAM IN THE CONTEXT OF INTERNATIONAL ECONOMIC INTERGRATION Major: Economic law Code: 38 01 07 DOCTORAL THESIS OF LAW HANOI - 2019 Thesis is completed at: HANOI LAW UNIVERSITY Supervisors: Assoc.Prof.Dr Dương Đăng Huệ Dr Đoàn Trung Kiên Committee member (Opponent) 1: Committee member (Opponent) 2: Committee member (Opponent) 3: Thesis is defensed with Doctoral thesis Committee organized at Hanoi Law University, date time year Available at: National Library of Vietnam Library of Hanoi Law University     LIST OF PUBLICATIONS RELATED TO DOCTORAL THESIS No Name of publication Journal Number/ Page Year number Commercial mediation- State and 10 Prospect and proposal for Law Review (342)/2016 33-38 building up the relevant law in Journal Vietnam Some comments on Decree Legislative 24 (352)/ No.22/2017/ND-CP of Studies 12/2017 Government on commercial Journal 45-52 mediation in Vietnam   German law on commercial State and mediation and some legal Law Review (363)/2018 advices for Vietnam Journal Evaluating current regulations Legal (121) - on commercial mediators in Sciences 2018 Vietnam Journal   24-34 30-36 INTRODUCTION OF THESIS Necessary of the research Currently, Vietnam is on the path of economic development and integration As a member of the World Trade Organization (WTO), signing newgeneration free trade agreements with a lot of comprehensive commitments, Vietnam is playing the same game with developed countries around the world Therefore, our State is making the effort to create a dynamic and modern economy, review and supplement the legal system for ensuring compatibility with that development and integration One of them is developing modern commercial dispute resolutions such as arbitration and mediation The policy in promoting the use of alternative dispute resolutions (ADRs) is to reduce the burden on the court system as well as to diversify business dispute resolutions which is reflected in the Resolution No 49-NQ/TW of the Politburo dated June 2, 2005 on the Judicial Reform Strategy to 2020: "Encourage the settlement of some disputes through negotiation, mediation and arbitration; Courts support them by recognizing that settlements" Decree No 22/2017/ ND-CP of the Government on commercial mediation (hereinafter called Decree No.22/2017/ND-CP) is a new step to transform the commitments with the WTO on the commercial mediation into national law Establishing the legal framework for commercial mediation also makes the Vietnamese legal system more suitable with international law, such as the UNCITRAL (United Nations Commission on International Trade Law) Model Law on International commercial mediation (2002, amended 2018) (hereinafter called UNCITRAL Model Law) and the laws of some other countries in the world Nevertheless, the further study and improvement of the law on commercial mediation in Vietnam this period is suitable with the development needs, the policy of improving the market economy in Vietnam and the trend of international integration For these reasons, Ph.D candidate have chosen subject for doctoral thesis: "Improving the law on commercial mediation in Vietnam in the context of international economic integration" Purposes and research tasks The purpose of the thesis is to systematize and to deepen the theory of commercial mediation; as well as to study and to evaluate the current status of the law on commercial mediation in Vietnam; finally to contribute to improving the law on commercial mediation in Vietnam To achieve the purpose of research, the task of the thesis is: - Systematizing, studying and assessing legal opinions on commercial mediation, conceptualizing, analyzing the legal characteristics of commercial mediation, determining the factors governing the law of commercial mediation     trade awards associated with the context of international economic integration, determining the form and content of legislation on commercial mediation; - Synthesizing, analyzing and evaluating the advantages and disadvantages of Vietnam's current legislation on commercial mediation and applying the lawcomparison methodology to make the evaluation on current regulations of Vietnam with some of the outstanding regulations of the typical countries on commercial mediation such as Germany, Singapore, Australia and the international regulations of UNCITRAL Model Law; - Based on the orientations for improving the law, this thesis provides general solutions and specific solutions to improve the law on commercial mediation in Vietnam, and give recommendations following the policy guidelines of the Party and State, meeting the rules of mobilization of the market economy and the reality demands in Vietnam in the current period Objects and scope of research The objects of the research: Legal opinions on commercial mediation including opinions of scientists at both national and international level in published scientific works; current regulations on commercial mediation of Vietnam, some provisions on UNCITRAL Model Law and some typical countries on this field For the requirements of capacity, the thesis would be limited in the scope of research: In terms of research space, thesis focuses on the research on Vietnamese law Some international laws and regulations of other countries are only for reference and comparative assessment in order to make the lessons for the improvement of Vietnamese law, including the UNCITRAL Model Law, national legislation of Germany, Australia, Singapore and some other countries; In terms of research time, the thesis studies the socio-economic context, Vietnamese law since the Sixth Party Congress (1986) to now, focusing on the period of international integration In terms of research content, the thesis only deals with mediation in the field of commerce; conciliation and mediation in other fields such as civil and labor would not be covered in thesis This thesis also deals with commercial mediation as an independent resolution for commercial dispute cases governed by Decree 22/2017/ND-CP Research methodology To achieve the purpose of research, the thesis apply a combination of many research methodologies: - Methodology of collecting information from researches in scientific works related to commercial mediation at both national level and international level Then using the law-comparison methodology to determine the problems that     have been resolved, the direction of scientific issues should continue to be studied - Methodology of dialectical materialist methodology to find the independence and the relationship between commercial mediation and other modes of dispute settlement - Methodology of systematizing and synthesizing, analyzing legal concepts to solve the problem of commercial mediation theory - Methodology of analyzing, collating and comparing in law to make the comment on the current status of commercial mediation law in Vietnam - Methodology of interpretation, inductive and prediction to make proposals and solutions to improve the law on commercial mediation in Vietnam Among the above methods, the methodology of systematizing, analyzing and comparison of law is used primarily and throughout most of the content of the thesis Research results and new contributions of the thesis Based on the selection of the results of previous studies on commercial mediation, the thesis has some new scientific contributions: Firstly, the thesis uses the methodology of systematization and analysis to deepen some of the theoretical issues including the concepts and legal characteristics of commercial mediation, the concept of law on commercial mediation, formulation process, form and content of commercial mediation law in Vietnam Secondly, the thesis uses the method of collecting information and analyzing and collating to clarify the role of commercial mediation and the elements affecting to commercial mediation in the context of economic integration, and show how the current international economic integration in Vietnam have the demands and challenges for commercial mediation; Thirdly, the thesis uses the analytical method to provide comments on current Vietnamese legislation in Decree 22/2017/ND-CP and Chapter XXXIII of the Vietnamese Civil Procedure Code (2015) on the issue of commercial mediators, the organization of commercial mediation, the settlement of disputes and the management and support of the State for commercial mediation; Fourthly, use the comparative law methodology to clarify the degree of integration of Vietnam's commercial mediation legislation with the UNCITRAL Model Law and the laws of some countries such as Germany, Singapore, and Australia; Fifthly, the thesis analyzes the orientations for improving the law on commercial mediation in Vietnam to ensure that it is considered as an effective tool for traders The thesis also give a number of solutions to improve the form     and content of legislation on commercial mediation that are suitable for the context of international economic integration in Vietnam at present Structure of thesis Apart from the introductory part, the literature review, conclusions, list of references and appendices, the main contents of the thesis are divided into three chapters with the following specific contents: Chapter 1: Theoretical issues on commercial mediation and law on commercial mediation Chapter 2: Current status of Vietnamese law on commercial mediation Chapter 3: Orientations and solutions for improving the law on commercial mediation in Vietnam     LITERATURE REVIEW Evaluation of national and international scientific publications on issues related to the topic 1.1 Evaluation of theoretical studies on commercial mediation Firstly, in terms of the concept of "commercial mediation", there is no scientific work in Vietnam to systematize the concept in domestic and foreign projects In addition, there is much debate between using terms "conciliation" and "mediation" Thus, Ph.D student has found that the further studies of the concept of "commercial mediation" on the basis of systematization and synthesis of the results of published research is necessary Secondly, in terms of the legal characteristics of "commercial mediation", although many previous studies have identified the characteristics of commercial mediation, however, Ph.D student has found that it was not yet completed Authors in previous writings have mostly pointed to the basic principles of dispute resolution through commercial mediation, but have not yet fully addressed other legal characteristics such as nature, subjects, purposes, and procedures of commercial mediation Thirdly, in terms of classification of "commercial mediation”, Ph.D student has found that there is no in depth research on this issue Although, in some journals, some authors have suggested ways of mediation, but mainly giving information, without distinguishing the types of commercial mediation according to specific criteria 1.2 Evaluation of research on theoretical issues on commercial mediation law Theoretical issues on commercial mediation law are not really addressed by Vietnamese and international scholars Major studies have explored the experience of some countries on commercial mediation Some issues have been controversial such as conferences, seminars, but not yet clarified by scholars such as the concept of commercial mediation law, the regulatory elements of commercial mediation in the context of international economic integration, the legal structure of commercial mediation 1.3 Evaluation of research on the current legal status of commercial mediation law Studies on the current status of commercial mediation law in Vietnam are mainly aimed at identifying the lack of legal framework for commercial mediation and the recommendation for Decree 22/2017/ND-CP In the current context, Decree 22/2017 / ND-CP has been issued; further studies is necessary These international studies on commercial mediation are also valuable sources of reference for the Ph.D candidate in comparing the law and the lessons learned for Vietnam in the process of improving commercial mediation law     1.4 Evaluation of researches on solutions to improve the law on commercial mediation in Vietnam Legal scientists have also expressed their opinion on the need to improve the law of dispute resolution in a market economy Some researchers have given different views on the development of a law on commercial mediation Some authors also made specific recommendations on the content of legislation In addition, some proposals emphasize the support of the State to commercial mediation so that this method is more developed However, Ph.D candidate find it necessary to continue to make more suggestions on general solutions in lawmaking as well as others to promote commercial mediation development in Vietnam Proposals to complete the law in previous doctoral thesis, scientific projects was without the appearance of Decree No 22/2017/ND-CP A number of later journals have offered valuable references and practical applications, the thesis will continue to inherit the results of that researches and develop further arguments The issue needed to be solved by the thesis Firstly, continuing to systematize and deepen the concept and legal characteristics of commercial mediation Secondly, analyzing the role of commercial mediation in the context of international economic integration Thirdly, analyzing theoretical issues on commercial mediation law Fourthly, analyzing and evaluating the current status of commercial mediation law in Vietnam Fifthly, the thesis would point out the requirements and solutions to improve the commercial mediation law in the context of international economic integration in Vietnam Research questions, research hypotheses, expected research results 3.1 Research question 1: What is commercial mediation in Vietnam? Research hypothesis: Commercial mediation is an independent, out-of-court dispute resolution process based on the principle of free will in business and commercial relations Study results: This research question is expected to solve in Chapter The thesis will systematize and analyze the concept of commercial mediation and the four legal characteristics of nature, subject, purpose and procedure to clarify the independence, out-of-court and free will of commercial mediation 3.2 Research question 2: Which type of intervention that State should apply to commercial mediation in the context of international economic integration in Vietnam? Research hypothesis: The law should be adjusted with the type of recommendations and supporting, should not use administrative measures     Expected results: The research questions are addressed in Chapter and Chapter 2, based on the nature of commercial mediation, the form and content of commercial mediation legislation in order to make the explanation for research hypothesis 3.3 Research question 3: Does the current law in Vietnam on commercial mediation respect the nature of commercial mediation, meet the practical needs and requirements of suitability in the context of international economic integration? Research hypothesis: The law on commercial mediation in Vietnam respects the nature of commercial mediation but it is not sufficient; is able to meet a part of practical needs and the suitability requirements of legal documents system in the context of international economic integration Expected results: Analyze and prove two factors: (i) The current law respects the nature of commercial mediation but does not clearly distinguish mediation with arbitration; (ii) The current law meets the need for recognition of commercial mediation, the establishment of commercial mediation subjects, the establishment of a mediation procedure and the recognition of the State for the results of mediation, however, there are still some points that are incompatible with international legal trends as well as the laws of some developed countries 3.4 Research question 4: What should the State to improve the law to ensure the development of commercial mediation model in Vietnam? Research hypothesis: The government's promulgation of policies and legislation on commercial mediation should be based on practical requirements and consideration of integration factors, respecting the basic principles of the commercial mediation as well Expected research results: The research question is expected to solve throughout the thesis The thesis provides and demonstrates the issues that the State should do: (i) Proposing general solutions for the promulgation of Laws and policies promoting development of commercial mediation; (ii) Proposals for the development, supplementation or modification of detailed legal provisions on commercial mediation CONCLUSION OF LITERATURE REVIEW   10   Court (Article 27); the contents are concretized in Chapter XXXIII on procedures for recognition of conciliation results outside courts (from Article 416 Article 419) Decree No 22/2017/ND-CP dated February 24, 2017 on commercial mediation promulgated following the Prime Minister's Decision No 808/QDTTg of June 29 on the promulgation of an action plan to implement the overall strategy for the development of the service sector of Vietnam by 2020 In order to finalize the legal framework for commercial mediation in Viet Nam, on 26 February 2018, the Ministry of Justice promulgated Circular No 02/2018/TTBTP issued and guided the use of some forms of organization and operation of commercial mediation 1.2.3 Factors controlling the law on commercial mediation in the context of international economic integration 1.2.3.1 Orientation and policies of the Party The policy of encouraging commercial mediation development is reflected in Resolution No 49-NQ/TW of the Politburo dated June 2, 2005 on the Judicial Reform Strategy to 2020 on "encouraging the settlement some disputes through negotiation, mediation, arbitration; The court shall issue a decision approving the settlement"; Resolution No 48-NQ/TW by the Politburo on May 24, 2005 on the strategy for building and improving the Vietnamese legal system up to 2010, orienting to 2020 also confirms the orientation for construction and improvement the law in order for international integration, the State must "improve the law on economic dispute resolution (arbitration, mediation) suitable with international commercial practices." One of the factors facilitating the development of mediation in Vietnam is the policy to develop and apply the case law in the court Specifically, Resolution No 48-NQ/TW of the Ministry The guiding principle is that " the use of cases and customs (including international trade practices and rules) and rules of professional associations ” 1.2.3.2 Traditional factors and social needs in the context of integration The traditional factor is twofold: the adequate side is that Vietnamese society is community-based, harmonious, combining and flexible, respecting self-esteem; the inadequate side is in some of the features such as small business practices, arbitrary habits; limited vision, short-term thinking, lack of linkage, community; relationship-oriented, bureaucratic, dependence, lack of credibility The current social demand for trade mediation is quite large Traders want a more flexible method of dispute resolution than procedural ones, but the results must still be valid 1.2.3.3 The context of the integration economy A number of factors such as the recognition of the market economy, the expiration of the reserve-clause period as committed to the World Trade Organization (WTO), regional integration (ASEAN), the signing of new   14   generation agreements, becoming the 84th member of the Vienna Convention on International Contracts for the International Sale of Goods (CISG) 1.2.4 Form and content of law on commercial mediation 1.2.4.1 Legal form of law on commercial mediation In terms of the form of legal documents regulating the relations of commercial mediation, Vietnam does not elaborate the specific Law on commercial mediation, only the sub-law documents exist, including the Government's Decree No 22/2017/ND-CP on commercial mediation and Circular No.02/2018/TT-BTP of the Ministry of Justice guiding the use of some forms of organization and operation of commercial mediation The legal document regulating commercial mediation is included only legal documents that provide the basis for the execution of commercial mediation, list commercial mediation as a means of resolving disputes that may be selected by the disputed parties such as Commercial Law, Investment Law, and Consumer Protection Law 1.2.4.2 Legal content of law on commercial mediation In the world, there are two tendencies to legislate mediation regulations: Generallevel (such as Europe, typically Germany), specific-level (such as Asia, typically Singapore) Vietnam follows a specific-level model that includes groups of regulation on commercial mediation such as subjects of mediation (mediators and commercial mediation organizations); process of commercial mediation (principle, competence, procedures and results); State management of commercial mediation The content of Vietnamese regulation on commercial mediation is complex and contains many administrative provisions by the State CONCLUSION CHAPTER   15   CHAPTER 2: CURRENT STATUS OF VIETNAMESE LAW ON COMMERCIAL MEDIATION 2.1 Regulations on commercial mediators 2.1.1 Regulations on conditions for practicing commercial mediators 2.1.1.1 Standard requirements for practicing commercial mediators Vietnamese law currently applies both quantitative and qualitative standards to the practice of mediators Concerning quantitative standards, the mediator must be a person with full capacity for civil acts, hold a bachelor or higher degree and have worked in the educated field at least years Qualitative standards include good ethics, credibility, independence, impartiality, unbiased, having mediation skills, legal knowledge, business practices, (Clause of Article of Decree No 22/2017/ND-CP) Some prohibited cases: "Persons who are currently being the arrestees, defendants, persons executing criminal sentences or completely executed their sentences but not yet having their criminal records remitted; persons who are being subjected to administrative sanctions to compulsory education or compulsory rehabilitation establishments shall not be allowed to act as a commercial mediator"(Clause 4, Article of Decree No 22/2017 / ND-CP) Commercial mediation centers may even set standards for mediators that are higher than the standards above, but not allowed to be lower standards (Clause 3, Article of Decree 22/2017 / ND-CP) The application of both quantitative and qualitative criteria to mediators practicing profession in Vietnam is quite strict in comparison with the standards applied to commercial arbitrators, this also reveal unclear about the policy of ensuring the quality of the mediators in relation to the law of some other countries in the world 2.1.1.2 Recognizing the status of commercial mediator After fulfilling the prescribed standards of mediators, the commercial mediators shall not automatically practice unless authority recognizes him or her In order to become a mediator, the persons qualified for mediator must be accredited by the Department of Justice (for ad-hoc mediators) or the mediation centers (for statutory mediators) 2.1.2 Regulations on the rights and obligations of commercial mediators 2.1.2.1 Rights and obligations of the mediator in terms of professional activities As a professional mediator, he or she have rights as being protected of the interests, participation in professional organizations, associations, to participate in training activities On the other hand, as a professional mediator engaged in the dispute, he or she should also comply with the standards, rules and procedures of mediation provided by the State, mediation centers (for statutory mediators)   16   2.1.2.2 Rights and obligations of commercial mediators in terms of dispute resolution process The mediator has the right to accept or refuse to conduct commercial mediation activities, refuse to provide information relating to the dispute, unless the parties agree in writing or in accordance with law, request the parties to respect the three parties' agreement in the dispute settlement process; request the parties to present truthfully details of the dispute, providing true information and documents related to the dispute and making proposals for settling disputes During the process of mediation, the mediators shall be responsible for carrying out mediation procedures as agreed by the parties or the mediation center; if mediators knows the information about the incident and the clients are not allowed to disclose, unless it is agreed in writing by the parties to the dispute; mediators also must ensure an independent, impartial and fair roles in the process of disputes 2.2 Regulations on the commercial mediation organization 2.2.1.Regulations on the form of commercial mediation Under the current regulations in Decree No.22/2017/ND-CP of the Government, in Vietnam, commercial mediation organizations including commercial mediation centers, commercial arbitration centers registered commercial mediation operation Foreign commercial mediation organizations are only allowed to operate in Vietnam as branches and representative offices 2.2.2 Regulations on the rights and obligations of commercial mediation organizations Mediation organizations have the right to provide mediation services, to perform professional activities and the rights toward the mediators of their organizations Mediation organizations have the obligations: Obligations toward the disputed parties, obligations toward commercial mediators, other professional obligations and some obligations for the State management activities 2.2.3 Regulations on the establishment and termination of activities of commercial mediation organizations 2.2.3.1 Establishing and terminating the operation of the mediation center (i) Establishment of a mediation center through three steps: license to establishment, registration, operation and information announcement (ii) Termination of operation of the mediation Center for the reasons: The mediation center itself decides to terminate its operation; commercial mediation centers are revoked their licenses 2.2.3.2 Registering and terminating commercial mediation activities of the arbitration center   17   (i) Registration of commercial mediation operation by the arbitration center: The arbitration centers shall be entitled to provide mediation services and regulations on registering additional operation of mediation quite simple (ii) Termination of the commercial mediation operation of the arbitration center for the reasons: The arbitration center terminates its operation in accordance with the provisions of the commercial arbitration law; The arbitration center terminates the operation of the commercial mediation activities according to the center's charter; The arbitration center shall not conduct any commercial mediation activities within years as from the date the Ministry of Justice's decision on supplementation of commercial mediation activities takes effect; arbitration centers that commit acts of administrative violation have been sanctioned for related to commercial mediation activities under the provisions of law on administrative violations, which have been continue to violate 2.1.4 Activities of foreign trade conciliatory organizations in Vietnam In order to concretize Vietnam's commitment to open the mediation service market, the Decree 22/2017/ND-CP stipulates the organizational structure of the foreign mediation organization operated in Vietnam Foreign commercial mediation organizations would like to operate in Vietnam would meet two conditions: (i) Having been established and operating legally in foreign countries, respecting the Constitution and laws of Vietnam; (ii) Carrying out procedures for representation in two forms, including branches and representative offices Thus, Vietnam has not yet recognized the presence of a legal entity by a foreign mediation center in Vietnam at the moment 2.3 Regulations on the operation of commercial mediation in commercial dispute 2.3.1 Principle of operation of commercial mediation - Voluntary - Self-Determination - Confidentiality - Flexible and effective dispute resolution - Neutrality, equality and impartial 2.3.2 Regulations on the competence of commercial mediation The authority of commercial mediation is determined on the basis of two factors: (i) Competence vested by the State (based on the scope of dispute settlement in accordance with law); (ii) Competence delegated by the parties (based on mediation agreement) 2.3.2.1 Competence in accordance with the law The type of dispute must fall within the scope of dispute resolution by commercial mediation Article of Decree 22/2017/NĐ-CP regulates the cases that parties may use commercial mediation to settle their disputes, including: (i)   18   disputes between parties arising from commercial activities; (ii) disputes between parties in which at least one party has engaged in commercial activities; (iii) Other disputes between the parties that are required by law to be resolved by commercial mediation 2.3.2.2 Competence delegated by the disputed parties The basis of commercial mediation is the agreement by the parties on the use of mediation in a commercial dispute According to the current regulations, the mediation agreement is an "agreement between the parties on the settlement of disputes which may arise or have arisen by mediation" (Clause 2, Article of Decree No 22/2017/ND- CP) Mediation agreements are voluntary, selective and independent 2.3.3 Regulations on the order and procedures of commercial mediation After settling a legally mediation agreement, further steps for mediation are initiated in the following order: (i) The parties to the dispute shall select or nominate the mediator and determine the order and procedures for mediation (ii) Mediator(s) performs mediation case (iii) End of mediation 2.3.4 Regulations on confidentiality in commercial mediation Commercial mediation is a method of dispute settlement that is rooted in the principle of free agreements, free will, and respect for the legitimate interests of the parties Therefore, the confidentiality regime in commercial mediation is one of the core issues that need to pay much attention in commercial mediation In terms of subjects having a duty of confidentiality, including disputed parties and commercial mediators In terms of confidentiality scopes, all information both during and after the dispute resolution process in commercial mediation should be kept confidential Additionally, there are some exceptions of confidentiality regime 2.3.5 Regulations on implementation of conciliation results The outcome of the mediation may be a successful or unsuccessful dispute resolution In case of unsuccessful outcome, disputes between the parties have not yet been settled, the parties may still proceed to re-mediate or continue using other modes of dispute settlement In case of successful mediation (in whole or in part), the parties should seriously implement such agreements According to the provisions of the Civil Procedure Code (Chapter XXXIII), in order to have a compulsory mediation settlement, the parties must request the court to issue a decision recognizing the mediation results In terms of procedure, pursuant to Article 418 and Article 419 of the Civil Procedure Code (2015), applicants for recognition of results of mediation must submit an application together with the   19   document on the results of mediation to the court within 06 months from the date the parties reach settlement 2.4 Regulations on the role of the State in commercial mediation activities 2.4.1 State management of commercial mediation Firstly, the Government assigns the unified management of commercial mediation to the Ministry of Justice Secondly, the Government decentralizes the authority to the People's Committees of provinces and cities directly under the Central Government to manage commercial mediation in the locality 2.4.2 State support for commercial mediation The current regulation in Decree No 22/2017 / ND-CP does not reflect the role of state support in commercial mediation activities at local level, but only at the central level Accordingly, the Ministry of Justice is responsible for implementation of measures to support and overall planning development of commercial mediation activities throughout the country The two basic support contents assigned by the Government to the Ministry of Justice included the support of information, networks and the development of mediation skills In addition, according to the provisions of the Civil Procedure Code (2015), the court will recognize the mediation results outside the court when it meets the conditions and follows the procedures However, the current regulations on the role of the State in mediation show that it is still administrative-oriented, with little emphasis on supporting and promoting mediation There are no regulations on social-professional organizations in the field of commercial mediation CONCLUSION OF CHAPTER   20   CHAPTER 3: ORIENTATION AND SOLUTIONS FOR IMPROVING THE LAW ON COMMERCIAL MEDIATION IN VIETNAM 3.1 Orientation for improving the law of commercial mediation 3.1.1 Ensuring the implementation of the Party and State's guidelines and policies on the judicial reform strategy and the improvement of the market economy regime The guidelines and policies of the Party and State are reflected in documents such as the Politburo Resolution No 49-NQ / TW dated June 2, 2005 on the judicial reform strategy to 2020; Resolution No 48 / NQ-TW of the Politburo dated May 24, 2005 on the strategy of building and perfecting the Vietnamese legal system up to 2010 and orientations to 2020 The improvement of the law on commercial mediation should ensure business freedom, the spirit of encouraging the development of mediation and be supported by the Court and relevant agencies This is also a content that the Constitution of the Socialist Republic of Vietnam (2013) has affirmed in the construction and improvement of market economic institutions, regulating the economy on the basis of respecting the laws of market (Article 52) 3.1.2 Ensuring the compliance with the requirements from the reality and the trend of international economic integration According to draft Decree on commercial mediation of Judicial Ministry submitted to Government No.02/TTr-BTP dated January 26, 2016, the reality is that businessmen doing business in Vietnam wish to resolve their disputes with flexible and economical methods, in which commercial mediation is a good way to meet this need In addition, the development of law on commercial mediation needs to meet the trend of integration, the development of law on commercial mediation should contribute to ensuring the harmony in international economic relations, studying the law of the UNCITRAL Model Law on international commercial mediation and learning experiences of some developed countries on the model of commercial mediation 3.1.3 Ensuring the respect for the fundamental principles of commercial mediation The principles to be ensured are: Voluntariness, confidentiality, equality and neutrality, efficiency and flexibility 3.2 Solutions to improve law on commercial mediation in Vietnam 3.2.1 General solutions 3.2.1.1 Legislating Law on Mediation In Vietnam, Decree 22/2017/ND-CP of the Government on commercial mediation applies mainly to commercial disputes Accordingly, in order for the mediators or the mediation organizations operate the case, the dispute must arise from commercial activities, if not, the case have to fall into the regulations that   21   allow using mediation by the State Therefore, non-commercial and nonregulated by specific law will not fall within the scope of application and jurisdiction of the dispute resolution by commercial mediators under this Decree Vietnam should study the promulgation of a law on mediation This law will be a general legal document regulating mediation activities outside the court This is a common trend not only in Europe as Germany, but also in Asia, typically in Singapore Vietnam should have an itinerary for the legislation of the Law on mediation with a scope including the mediation of disputes arising from social activities, with the exception of specific administrative, criminal relations Accordingly, this Law will cover the scope of commercial mediation, family marriage mediation, land disputes, civil and labor disputes, etc., if the parties wish to use mediation services In other words, the Law on Mediation will be the legal document providing the legal basis for the mediators, determining the standard mediation process and matters relating to the professional scope of these service activities In terms of content, the mediation law should cover three major regulatory groups: Mediators and mediation organizations, dispute resolution by mediation (which defines the principles of mediation, competence and process, mediation results), the role of the State in the mediation activities (should pay attention to specific support from the State for mediation activities) 3.2.1.2 Promulgating the law on sanctioning of administrative violations in line with the regulations on commercial mediation The provisions on sanctioning administrative violations in the field of commercial mediation may also be prescribed in a general legal document on the dealing with violations in the fields managed by the Ministry of Justice (Currently, The Ministry of Justice is implementing the common content of administrative sanctions in the field of commercial mediation in the Decree on sanctioning administrative violations in the judicial area) The contents of the regulations on administrative sanctions in commercial mediation activities should clearly define the sanctioning competence, subjects of application of the regulations, basis of sanctioning administrative, type of applied sanctions In particular, administrative measures need to be taken to ensure that the principles of commercial mediation are respected by mediation organizations, mediators and disputed parties Penalties for mediators violating professional standards and ethics, prohibited acts and obligations when conducting mediation activities should be prescribed from the sanctioning level to the ban from professional practice depending on the seriousness of the breach The issue of sanctions against mediation organizations, branches or representative offices of foreign mediation organizations should closely follow their obligations in Decree 22/2017/ND-CP, avoiding lacking of penalties The heaviest sanctions, such as revocation of permits, forcible termination of operation of these establishments,   22   especially violations of professional ethics, quality standards of mediation services should be promulgated State should focus on clearly defining and imposing strict sanctions rather than on tightening standards of mediators and mediation organizations, which would have a detrimental impact on these actors 3.2.1.3 Develop a mechanism encouraging the courts connected to commercial mediation The development of conciliation at the court or at a mediation center connected to court is a good solution for the parties to reach consensus settlements However, instead of investing in such centers, besides the Court, Vietnam should focus on developing mediation center, which is same model with Singapore It should be assigned to a professional body other than the State’s body responsible for the operation To that, the State needs to study and transform the provisions into the Civil Procedure Code, in which judges need to attempt to introduce and persuade the parties to use independent mediation outside the courts to settle disputes 3.2.1.4 Developing legal provisions on the combination between commercial mediation and commercial arbitration Currently in Vietnam, the Commercial Arbitration Law (2010) mentions mediation in arbitral proceedings, arbitration organizations can also provide independent mediation services and Decree 22/2017/ND -CP also noted that However, the model of commercial mediation combined with commercial arbitration is still not fully recognized by Vietnamese law The combined process of commercial mediation and commercial arbitration can be combined in several ways, including: Med-Arb, Arb-Med or Arb-Med-Arb, Co-Med-Arb, MEDALOA In order to be able to build such a mechanism, there is a need for coordination between law making in the field of arbitration and mediation in a uniform manner 3.2.1.5 Establishing legal provisions on social organizations on commercial mediation State should have an incentive mechanism for the establishment of socialprofessional organizations as well as promulgate policies to promote the operation of associations on commercial mediation in particular, alternative dispute resolution in general International cooperation and professional training activities should also be assigned to these organizations to improve the effectiveness, reduce the workload and the burden of expenditure of State 3.2.2 Specific solutions 3.2.2.1 Regulations on commercial mediators Firstly, amending the regulations on conditions for professional practice of commercial mediators: Clarifying the standards on professional practice;   23   supplementing some prohibited people to become commercial mediators; removing the administrative procedure for ad-hoc mediators registration Secondly, it is necessary to supplement the regulations on training policies to improve the quality of commercial mediators Simultaneously with the reduction of the standards of professional practice, the removal of administrative procedures for the management of commercial mediators, Vietnam also needs to issue regulations on training and granting the certification for mediators Certification is only to determine the amount of knowledge and skills that have been accumulated by the mediators The regulations on certificated mediators should not exclude the un-certificated mediators’ right in providing mediation services in the society In this regard, Vietnam can learn from German, Singaporean and Australian regulations Thirdly, the Ministry of Justice should be assigned to publish the list and information of commercial mediators Procedures for disclosing information about mediators are necessary so that disputing parties could access this list, to bring commercial mediation services closer to society However, it should be assigned to Ministry Justice to avoid duplication The Ministry of Justice also needs to develop a separate website to publish a list of commercial mediators as well as to publish information relating to the management of commercial mediation Fourthly, supplementing some rights and obligations of commercial mediators Concerning the rights of the mediators, the following rights should be added: the payment of reasonable expenses and other expenses (if any) as agreement; the requirement to the parties in providing the necessary information and documents for the settlement of the dispute; the right to make suggestions and opinions during the dispute settlement process so that the parties can consult it to make the settlements; the right to engage in other activities not violate the principles of commercial mediation for the purpose of settling disputes for the parties Concerning obligations to commercial mediators, Decree 22/2017/ND-CP should also provide more clarification on certain obligations relating to confidentiality and dispute settlement In order to ensure the principle of confidentiality in mediation, the regulations should stipulate that commercial mediators must protect the principle of confidentiality, not disclose information about disputants and disputes (including information acquired during or from the mediation process) with a third party, otherwise agreed upon by the parties or in accordance with law In addition, the law should clarify the mediator's obligation to try and use the necessary measures without infringing upon the parties' legitimate rights and interests to assist the parties in reaching the most optimal dispute resolution results   24   3.2.2.2 Regulations on the organization of mediation Firstly, supplementing the provisions on subjects who have rights to establish mediation centers Some subjects should be prohibited as civil servants, judges, procurators, investigators, executors and employees of the People's Courts, the People's Procuracy, the investigating and executing bodies Additionally, learning from Singapore's experience (for example, the SMC Singapore Mediation Center is an organization affiliated with the Singapore Academy of Law SAL), Vietnam should also recognize that the founders of the mediation center could be organizations Secondly, simplification of administrative regulations in the establishment, operation and termination of mediation organizations At present, there are a lot of administrative obligations of commercial mediation organization to the State As an organization that assists the parties in the resolution of disputes without making any decision, the administrative procedures of the State governing the mediation should be suitable Thirdly, supplementing some provisions on the rights and obligations of commercial mediation organizations In terms of rights: Right to accept or refuse to conduct disputes; the right to terminate mediation activities in cases of necessity or following rules of the center; the labor management's right to the mediators of the center Besides, it is necessary to add some basic obligations: Conducting of disputes as agreed (contract); taking responsibility for recommending and appointing mediators of their organizations to the parties when requested, taking responsibility for the quality and standards of the mediators; supporting the location of the dispute settlement and other activities related to the dispute settlement process; compensating to customers if their legitimate rights and interests are infringed upon in mediation process 3.2.2.3 Regulations on mediation process Firstly, broaden the competence to conduct disputes for commercial mediation Vietnam should learn from Malaysian Mediation Law (2012), whereby the scope of dispute settlement is defined as any disputes, except for certain types of disputes specified in the Law To be consistent with the open scope, the name of the law should be Law on mediation, not kust commercial mediation Secondly, supplementing some principles of mediation, including: - Self-determination Principle: The mediators respect the opinion and not make any decision on behalf of the parties without consensus - The principle of impartial and equality dispute resolution: The mediators must be impartial, not take sides in the dispute and deal fairly with the parties;   25   - The principle of flexibility and efficient dispute resolution: The mediators must ensure the settlement of disputes in a manner that is most beneficial to the parties in terms of quality, time and cost Thirdly, supplementing the regulations on the execution of mediation agreement The mediation agreement is only a condition for the parties to use commercial mediation and it is not a binding legal document obliging the parties to use commercial mediation as for commercial arbitration Mediation agreements not automatically exclude the jurisdiction of the arbitrator The settlement of the dispute at the arbitral tribunal does not exclude the mediation procedure and mediation’s competence It is necessary to provide solutions to deal with the legal consequences of cases where the parties concurrently agree on the use of mediation, arbitration or court Fourthly, specifying the rules of confidentiality in commercial mediation Included: internal mode (between the parties); external mode (from insiders with outsiders); special mode (related to State agencies, courts, social organizations protecting the rights of special vulnerable persons such as children, women, etc.) Fifthly, specifying some steps in the mediation process Specifically, supplementing provisions on the starting mediation process, recommending the number of mediators and conclude a mediation contract, recommending the initial steps of mediation process, supplementing the mediation termination, advising the cost of mediation Sixthly, supplementing the provision on temporary suspension of limitation of actions This is also a recommendation in the UNCITRAL Model Law Vietnam should supplement the provision that not count the period conducting disputes in mediation to the period of limitation of actions in order to avoid prejudicing the rights and capabilities of the parties This also encourages the disputing parties to prioritize the use of commercial mediation Seventhly, amending Article 417 of the Civil Procedure Code 2015 in recognizing mediation settlement by Courts In cases where the State still determines the criteria and procedures for recognizing the professional status of a commercial mediators, the conditions for recognizing the mediation results by the Court should be include the competence of legal mediators In addition, it is necessary to consider the appropriateness of the provisions of Clause of Article 417 and clause of Article 418 of the Civil Procedure Code 2015 on the period of sending a requesting the Court to recognize the mediation settlements within 06 months from the date on which the parties reach agreement Accordingly, Clause of Article 417 should be edited:   26   "One or more parties requesting the Court to recognize settlement should be within the time limit prescribed by law" Eighthly, supplementing the case where the mediation settlements are recognized by Notary At present, Vietnamese law stipulates that mediation settlements outside the court will be enforceable if the Court issues a decision on recognition on the basis of the request of the parties However, in further, Vietnam should also aim to apply the implementation of the mediation settlement as for arbitration, which is called “immediate execution”- valid without the recognition of the Court Viet Nam can also learn from the procedure for keeping the minutes of mediation at the Court or requesting confirmation from the notary public (notarization procedure) of Germany CONCLUSION OF CHAPTER   27   GENERAL CONCLUSION Commercial mediation is one of alternative dispute resolution modalities for business and commercial disputes, which is conducted outside the Court, This is one of the alternative dispute resolutions that most of countries in the world are encouraging to develop Commercial mediation has a better degree of self-determination than commercial arbitration, which also makes parties more initiative However, the mediation result will depend mostly on the attitude of the parties The role of the third party as mediator is not as decisive as commercial arbitration Therefore, the content of legislation regulating commercial mediation also respect to the principle of self-determination of the parties at a higher level than that of commercial arbitration Decree 22/2017/ND-CP is a step to institutionalize policy of encouraging dispute settlement outside the court, besides, reflecting the innovation and integration of Vietnam in the present context The provisions of the Civil Procedure Code (2015) on the procedure for recognizing the results of mediation outside the Court also express the uniformity in the legal system of commercial mediation in particular and the mediation in general Current Vietnamese law has met the requirements of the international economic integration context, but the content of legislation still needs to be assessed from the practical application in the coming time Some contents that need to be further reviewed including the regulations on commercial mediation organizations, commercial mediators, commercial mediation process, and the recognition of commercial mediation settlements Improving the law on commercial mediation is a requirement in the current practical and integration context Accordingly, the State needs to unify the method of regulating commercial mediation relations in the direction of recommending, encouraging, supporting, and reducing administrative regulations   28   ... commercial mediators Vietnamese law currently applies both quantitative and qualitative standards to the practice of mediators Concerning quantitative standards, the mediator must be a person with full... CHAPTER 3: ORIENTATION AND SOLUTIONS FOR IMPROVING THE LAW ON COMMERCIAL MEDIATION IN VIETNAM 3.1 Orientation for improving the law of commercial mediation 3.1.1 Ensuring the implementation of the... commercial mediation 1.3 Evaluation of research on the current legal status of commercial mediation law Studies on the current status of commercial mediation law in Vietnam are mainly aimed at identifying