THÔNG TIN TÀI LIỆU
MINISTRY OF EDUCATION MINISTRY OF JUSTICE AND TRAINING HANOI LAW UNIVERSITY DO HONG QUYEN THEORETICAL AND PRACTICAL ISSUES ON DISPUTE RESOLUTION CLAUSES IN INTERNATIONAL SALE OF GOODS CONTRACTS - EXPERIENCE FOR VIET NAM Specialized faculty: International Law Code 38 01 08 THESIS FOR PHD IN LAW Hanoi - 2021 This project is completed at: HANOI LAW UNIVERSITY Scientific research instructor Assoc Prof PhD.Nong Quoc Binh Reivewer 1: Dinh Ngoc Vuong, Assoc Prof., PhD Reviewer 2: Nguyen Trung Tin, Assoc Prof., PhD Reviewer 3: Ngo Quoc Chien, Assoc Prof., PhD The thesis was defended in front of the Doctoral thesis grading committee at the university level, Hanoi Law University, on …………………… The thesis can be found at: The National Library The Library of Hanoi Law University Theoretical and practical issues on dispute resolution clauses in international sale of goods contracts - experience for viet nam PREAMBLE THE URGENCY OF THE TOPIC Dispute Resolution Clauses have an important role in solving arising disputes during the performance of contracts for the international sale of goods (CFTISOG) However, in some circumstances, these clauses are not considered as crucial as other fundamental clauses of the contracts such as: clauses of goods' name; the quantity of goods; the quality of goods; clauses of the prices In the context of increasingly complex in international trade activities leading to the diversity and complexity in international trade contracts in general and international sale of goods contracts in particular Not knowing about the legal issues related to the contract or disregarding of the provisions of the group of dispute resolution clauses such as clauses of choosing applicable law and clauses of selecting dispute resolution agency…has exposed traders to some risks and affect their interests in making contracts as well as solving disputes in the jurisdictions As a result, the study of the dispute resolution clauses in the international sale of goods contract will not only give a positive view of this type of clauses in the contract but also the certain restrictions when entering a contract for the sale of goods with "foreign elements" but lack or not strict of this dispute resolution clauses Therefore, I choose the topic "Theoretical and practical issues on dispute resolution clauses in international sale of goods contracts - experience for Viet Nam " as my research topic THE RESEARCH OBJECTS AND THE SCOPE OF RESEARCH TOPIC: - The research objects: The dissertation focuses on reseraching on dispute resolution clauses of the international sale of goods contract - The scope of research topic: The disseration does not research on dispute resolution with all kinds of international trade contracts, nor does indepth research on the methods of international trade contract dispute resolution but only specializes in researching in-depth on the clauses of dispute resolution in the CFTISOG Therefore, the dissertation will focus on researching the clauses of dispute resolution in the CFTISOG with the following specific aspects: First, in theoretically: Clarifying the concept of the clauses of dispute resolution in the CFTISOG; clarifying the legal validity of the clauses of dispute resolution in the CFTISOG to determine the necessity of this type of clauses in the CFTISOG; indicating the binding of the parties of the CFTISOG to the clauses of dispute resolution; analyzing the legal elements of the clauses of dispute resolution Second, in pratically : The study will analyze some typical cases related to the clauses of dispute resolution that have caused legal consequences for the parties, and also pratically apply, formulate the clauses of dispute resolution in a CFTISOG On the basis of research on theory and practice, the dissertation proposes a number of specific solution for perfecting the law governing the signing and implementation of the dispute resolution clause in CFTISOG and proposes a number of recommendations for Vietnamese businesses in signing and implementing dispute resolution clauses METHODOLOGY AND THE METHOD TO RESEARCH THE SUBJECT To clarify the subjects that need to be studied above, the dissertation uses many different scientific research methods such as: descriptive, synthetic, analytical, The research methods in the dissertation are carried out on the basis of historical and dialectical materialism methods; the political, economic, cultural and social viewpoints of the Communist Party of Vietnam Specifically: - Descriptive, syntheis and statistical methods are used to outline the content of legal provisions related to the clauses of dispute resolution in CFTISOG - Comparative and analytical methods are used to point out the similarities and differnces between the international law, international trade practices and the laws of countries on issues related to the subject - The method of synthesis and analysis is used to clarify the content of the legal provisions within the research scope of the topic and propose some solutions to improve the law of Vietnam as well as suggestions for the Vietnamese enterprises' capacity related to the clauses of dispute resolution in CFTISOG PURPOSE, TASKS OF THE SUBJECT RESEARCH The study focuses on clarifying the following fundamental issues: - Clarifying the theoretical issues of the clauses of dispute resolution in CFTISOG; - Researching on the provisions of international and national law of clauses of dispute resolution in CFTISOG; - Researching on the pratice of formulating and applying the clauses of dispute resolution in CFTISOG in Vietnam and other paticular countries around the world - From the theoretical and practical analysis to propose some solutions to effectively develop and implement the clauses of dispute resolution in CFTISOG for Vietnamese enterprises and traders 5 NEW RESEARCH RESULTS OF THE DISSERTATION Theoretically - Clarifying some basic theoretical issues about the clauses of dispute resolution in CFTISOG such as: definition, form, content, the relationship between the clauses of dispute resolution in the contract and some other clauses in the contract - Clarifying the legal validity of the clauses of dispute resolution in CFTISOG - Affirming the necessity of the clauses of dispute resolution in CFTISOG Practically - Indicating the actual situation of composing and implementing the clauses of dispute resolution in CFTISOG around the world and in Vietnam - Making some specific proposals for Vietnamese enterprises and traders in composing and implementing the clauses of dispute resolution in CFTISOG Improving the law - Proposing to competent state agencies in the development and enforcement of laws related to the dispute resolution in CFTISOG THE STRUCTURE OF THE DISSERTATION Apart from the introduction, the conclusion and the list of references, the dissertation content is divided into four chapters, with conclusions of each chapter: Chapter 1: The overview of the research situation and the research issues Chapter 2: Theoretically issues on the clauses of dispute resolution in the contracts for the international sale of goods Chapter 3: The current status of law on the clauses of dispute resolution in the contracts for the international sale of goods Chapter 4: The practice of composing and implementing the clauses of dispute resolution in the contracts for the international sale of goods and some proposals CHAPTER THE OVERVIEW OF THE RESEARCH SITUATION AND ISSUES 1.1 The overview of the research situation related to the dissertation content To detect the research status of the scholars, the dissertation considers two groups separately, the first group consists of the studies in other countries and the other one contains studies in Vietnam 1.1.1 Research situation in Vietnam 1.1.1.1 The researches related to general issues on the contracts for the international sales of goods 1.1.1.2 The researches related to specific issues on the dispute resolution in contracts for the international sales of goods 1.1.1.3 The researches related to legal basis issues on the dispute resolution in contracts for the international sales of goods 1.1.2 Research situation in other countries 1.1.2.1 The researches related to issues on contracts and the clauses of dispute resolution 1.1.2.2 The researches related to issues on the dispute resolution in contracts for the international sales of goods 1.1.2.3 The researches related to issues on legal basis in the dispute resolution in contracts for the international sales of goods 1.2 The evalution of the research issues related to the subject of the dissertation 1.2.1 The evalution of the research situation related to the subject of the dissertation Firstly, most of the researches related to the subject of the dissertation that PhD students have access to, all refers to the content related to contracts for the international sales of goods, contracts for international trade, the dispute resolution in general and dispute resolution related to CFTISOG in particular Ass a result, it can be seen that the dispute resolution is always an issue that scientific works are interested in Secondly, the issues of dispute resolution methods are often be mentioned by the researches as the method of dispute resolution that is solved by the international trade arbitration The issues related to the dispute resolution in CFTISOG in terms of theory and pratice are often be determined by various solutions such as: negotiating, mediating, being judged by the court or by the arbitration However, in the accessible researches, there is a tendency to considerably mention about the method of resolving the dispute in international trade by the arbitration Thirdly, most of the researches that the PhD students can get acccess to focus on the legal issues and composing the CFTISOG; the method of resolving dispute in international trade and the practice of dispute resolution; the actual situation of the international law regulations related to the adjustment in international trade contractual relations in general 1.2.2 The issues that are continue to be researched in the dissertation In the current context of international economic integration, the application of theoretical issues on the clauses of dispute resolution in CFTISOG in practice or using the actual situation to clarify the theoretical issues on the clauses of dispute resolution in CFTISOG still needs to be researched more in Vietnam As a result, on the basis of inheriting the research results of previous scientific works, the dissertation focus on clarifying the issues on the clauses of dispute resolution in CFTISOG In particular: First, the dissertation clarifies the theories of the international trade contracts and the clauses of dispute resolution in CFTISOG such as: definition, clauses of dispute resolution's characteristics, legal basis, form, the content of the clauses of dispute resolution Second, on theoretical basis, the dissertation updates the regulations of international law in the clauses of dispute resolution in CFTISOG, thereby finding the pratice of applying those regulations in some typical countries around the world and the practice of resolving the disputes related to CFTISOG Third, the dissertation focuses on clarifying the actual construction and application the clauses of dispute resolution in CFTISOG in Vietnam through the findings of actual construction of the clauses of dispute resolution in CFTISOG of some Vietnamese import and export enterprises as well as the actual dispute resolution in some dispute resolution organizations such as: Vietnam international arbitration center, Vietnam court Fourth, the dissertation proposes some specific solutions to improve the law and to implement the clauses of dispute resolution in CFTISOG The conclusion of chapter CHAPTER THEORETICAL ISSUES ABOUT THE CLAUSES OF DISPUTE RESOLUTION IN CONTRACTS OF THE INTERNATIONAL SALE OF GOODS 2.1 The overview of the clauses of dispute resolution in contracts of the international sale of goods 2.1.1 The concept of the contracts of the international sale of goods 2.1.1.1 The definition the contracts of the international sale of goods CFTISOG are different from the usual contracts of sale of goods in that the "international" or "foreign" elements in the contracts of sale of goods In the law of nations as well as international law, there are different clauses in "international" or "foreign" elements Determining the "international" or "foreign" elements to the contracts of sale of goods has an important legal meaning in defining the governing law for the contracts of sale of goods A contractual relationship without an "international" element will only be governed by national laws, while a contractual relationship with an "international" element will be governed by the regulation of many legal resources such as: international law, national law, foreign law The "internationality" in CGTISOG can be considered with signs such as: (i) being related to more than one country, (ii) the scope of an international treaty, (iii) the movement of goods accross the borders, (iv) or contracts that create values and interests in international trade As follows, based on theses four signs, it can be clearly seen that the determination of " internationality" for the CFTISOG relationship is based on two specific criteria that are economic and legal criteria According to Vietnamese law, foreign elements are specified in Clause 2, Article 663 of the 2015 Civil Code in cases: (i) Firstly, at least one of the parties is a foreign individual or legal entity; (ii) Secondly, the parties involved are all Vietnamese citizens, Vietnamese legal entities, but the establishment, change, performance or terminiation of such relationship occurs in a foreign country; (iii) Thirdly, the parties involved are all citizens, legal entities of Vietnam but the subject matter of that civil relationship is in a foreign country 2.1.1.2 Features of contract for the international sale of goods To compare with other contracts of sale of goods, CFTISOG have some specific features such as: First, about the subject of the contract The subjects of CFTISOG are trade legal entities, the organizations and individuals performing trade-related transactions, collectively known as traders and having trade offices in different countries Second, about the form of the contract The actual situation shows that there are two groups of views: The first group of views is: CFTISOG can be expressed in writing, verbally, or in any other form that are agreed by the parties The second group of view is: CFTISOG has to be expressed in writing Third, about the language of the contract Normally, CFTISOG will be formed in the form of documents in different languages (according to the agreement of the contracting parties) However, the fact that there have been cases of translation errors or multi-sense phenomena has led to the fact that the contract can have different interpretations, which is one of the causes leading to disagreements and conflicts between the parties In international practice, when there is an inconsistency between texts in different languages,it is often interpreted according to the original version Fourth , about the subject of the contract The goods that will be the subject of CFTISOG must be on the list of permitted goods to be traded or exchanged in accordance with the law of the purchase and sale parties First of all, goods that are the subject of CFTISOG have to be movable property and secondly, they must satisfy the regulations on goods which include the permitted goods to be bought, sold, exchanged, exported and imported according to the laws of the buyer's country and the laws of the seller's country Goods that are the subject have to be on the list of the HS Convention on the " Harmonized Hàng hóa đối tượng phải có tên danh mục Công ước HS “Harmonized system of description and numbering of goods" of the World Custom Orrganization (WCO) Fifth, about the law governing the contracts Contracts for the international sale of goods are governed not only by the national laws but also by a variety of other resources such as: international treaties, international trade practices, general principles of the contract, legal doctrines The law governing the contract may depend on the choice of the parties The parties in the contract can choose a source of law related to the contract, it can be the seller's country law, the buyer's country law, the law of the place of performance of the contract, the law of the place where the contract is concluded 2.1.2 The concept of the clauses of dispute resolution in international sales contracts 2.1.2.1 The definition of contract disputes and dispute resolution of CFTISOG * The definition of contract disputes Disputes on CFTISOG are understood as disagreements between the buyer and the seller during the performance of the CFTISOG when one of the parties or both parties has not properly performed the agreements recorded in the contract and has caused damange that harm to the other party *The definition of dispute resolution of CFTISOG Dispute resolution in a contract of sale of goods is a method that the disputing parties apply to resolve the conflicts of interests of the parties during the performance of the contracts for the sale of international goods Depending on the characteristics and the extent of the dispute to use the appropriate resolution method, the methods can be negotiating, conciliating, being judged by the court or the arbitration 2.1.2.2 The definition of the clauses of dispute resolution On the basis of the process of developing the terms and the purpose of using the dispute resolution clauses, the definition of the clauses of dispute resolution in CFTISOG can be drawn as follows: The clauses of dispute resolution in CFTISOG are the clauses that are agreed by the parties of CFTISOG to determine the method or the law to be applied to resolve the conflicts of interest between the parties arising from the contract 2.1.2.3 Characteristics of the clauses of dispute resolution - First, the independence of the contract This independence of the clauses is seen as a second contract Accordingly, the first contract is a contract defining the rights and obligations of the subjects in the international sale and purchase of goods, the second contract is a contract on dispute resolution (if any) between the parties - Second, the rights the enforce in the event of a breach of a contractual obligation This characteristic of the clauses of dispute resolution ensures that if a party has breached the contract, the aggrieved party has the right to apply the clauses of dispute resolution to protect its interest In the event that one party has breached a fundamental obligation of the contract to the extent that the first contract is cancelled, this contract will not be cancelled in its entirety Accordingly, the content of the second contract is still valid and is the basis for protecting legitimate rights and interests of the violated party - Third, being formed during the negotiation, drafting and the performance of the contract The clauses of dispute resolution can be established at any time from the time of contract negotiation, drafting and performance First, the clauses of dispute resolution are composed in the process of negotiating, drafting the contract In the negotiation and the drafting stage of the contract, because no dispute has occured, the content related to the dispute to be included in the contract is only "contingency" Second, the clauses of dispute resolution are composed during the performance of the contract This is the case when a contract is signed and being performed However, for some reasons, a dispute occurs between the parties and the contract signed by the previous parties lacks of the clauses of dispute resolution Therefore, in order to resolve the arising disputes, the parties will usually directly negotiate and discuss the issues related to dispute resolution and sign an agreement on dispute resolution with the contents such as: dispute resolution methods, dispute resolution jurisdiction and applicable law for dispute resolution 2.1.2.4 The roles of the clauses of dispute resolution - First, they create the convenience in resolving the dispute - Second, they help the violated party easily protect their legitimate interests - Third, they save time and cost in dispute resolution - Fourth, they create the satisfaction of the parties about the results of the dispute resolution 2.2 The form and the content of the clauses of dispute resolution in contracts of the international sale of goods 2.2.1 The form of the clauses of dispute resolution Considering the form of the clauses of dispute resolution, it shows that the clauses of dispute resolution are usually expressed in two forms, namely: the written form and the non-written form For the written form, the clauses of dispute resolution are reflected in the contract or written agreement to resolve the dispute Orr the clauses of dispute resolution are expressed in other forms with equivalent value in writing such as: fax, telex, offer letter, For the non-written form, the clauses of dispute resolution are expressed through a clear agreement between the parties, specifically through words 2.2.2 The content of the clauses of dispute resolution In fact, the parties often include in the clauses of dispute resolution such content as: dispute resolution methods, legal basis for the dispute resolution First, about the dispute resolution methods, the parties can choose one or many resolutions of the dispute resolutions such as: the method that going through the negotiation, the method that going through a third party, the method that going through a jurisdiction Second, the parties can determine the legal basis for the dispute resolution The legal basis for the dispute resolution will serve as a basis for the subject with the dispute resolution competence to apply in the dispute resolution, including different sources of law such as: national law, international law and international trade law 2.3 The relationship between the clauses of dispute resolution and the clauses of the contract 2.3.1 The relationship between the clauses of dispute resolution and the basic clauses of the contract The group of dispute resolution clauses and the group of basic contract clauses have a close relationship with each other Accordingly, the violation of the basic clauses of the contract such as the clauses of goods, the quality of the goods, the delivery will trigger the dispute resolution clauses Specifically: with the content of the clauses on the choice of dispute resolution method by negotiation, conciliation, arbitration or court, the violated party will have the right to complain or initiate a lawsuit against the subject mattered by the parties that is on the clauses With the content of the applicable law selection clauses being the international law or the national law of the seller's country or the buyer's country or some foreign law, it will be the legal basis for dispute resolution between the parties 2.3.2 The relationship between the clauses of dispute resolution in the contract The relationship between the clauses of dispute resolution is cohesive, mutually supportive Accordingly, choosing a dispute resolution method can lead to a choice of applicable law For example, choosing the method of dispute resolution as arbitration may lead to the application of the law of the place where the arbitration is located; choosing the method of dispute resolution as the court, the dispute resolution will apply the Lex-fori principle to resolve the dispute 2.3.3 The relationship between the dispute resolution clauses and the force majeure clauses and the hardship clauses in the contract The force majeure clauses in CFTISOG are the clauses that includes cases when it occurs that the parties are not liable despite a breach of the contract The hardship clauses in CFTISOG are the type of clauses that are developed by the parties with the aim of creating an appropriate mechanism in ensuring the interests of the contracting parties through reasonable sharing of risks and re-establishing the blance of rights and benefits of the parties, the parties have included in the contract a clause that allows one party to have "special" difficulties in performing its contractual obligations to request the other party to renegotiate contract It can be said that the clauses of dispute resolution are always directed to the responsibility of the party that violates the contract However, when applying the force majeure clauses or the difficult circumstances clause, the liability of the violating party will be waived or reduced This phenomenon reflects the reciprocal relationship of binding and mutual restraint between the dispute resolution clauses and the clauses that unduly affect the interests of the contracting parties The consequences of excesive loss of benefits can be damaging to business as well as partnerships in international trade 2.4 Legal effect of the clauses of dispute resolution 2.4.1 The clauses of dispute resolution in effect The clauses of dispute resolution are the clauses agreed upon by the parties and expressed in detail in a contract, therfore, if the clauses of dispute resolution in a contract want to be legally valid, it must also fully satisfy the conditions of validity of a contract Specifically: that clauses are signed by entities with full legal capacity and behavioral capacity; the clauses are signed entirely on a voluntary and equal basis; the purpose and content of the clauses are not contrary to the clauses of law 2.4.2 The clauses of dispute resolution that are invalid The establishment of a dispute resolution clause in the contract is considered as the establishment of a civil transaction with the meaning of the second contract in the first contract Therefore, when we consider it as a civil transaction, the causes leading to the invalidity of civil transactions will be the cause leading to their invalidity that is the failure to ensure the conditions of the subject; the subject performs the transaction involuntarily; The content of the transaction is contrary to the principles and clauses of law and social ethics The conclusion of chapter CHAPTER LEGAL SITUATION ON DISPUTE RESOLUTION IN CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 3.1.Principle of the freedom to agree on dispute resolution clauses in international sales contracts 3.1.1 International law on the principle of freely agreement on dispute resolution clauses in CFTISOG On the basis of the principle of freedom of the contract in international legal documents, the freedom to agree on dispute resolution clauses in international arbitration contracts has been specifically recognized by the international law in many other documents such as: The 1955 La haye Convention on the Applicable Law to CFTISOG, the 1958 La haye Convention on the Jurisdiction of Selected Arbitrators in the International Sale of Goods, the 1986 La haye Convention on the Applicable Law to International Arbitration Agreement, the 2005 La haye Convention on Court Selection Agreement Accordingly, the contracting parties use their freedom to agree with a specific method of dispute resolution, or the applicable law to the contract However, it is necessary to understand the principle of the freedom of the contract, the freedom to agree with the clauses of dispute resolution is the freedom within the framework of the law 3.1.2 Vietnamese law on the principle of the freedom to agree with the clauses of dispute resolution in CFTISOG The freedom to agree with the clauses of dispute resolution of the contract is based on the principle of the freedom of contract, therefore, the parties when drafting the dispute resolution clauses of CFTISOG are free to express their will on the euqal, voluntarily basis and by the agreement Accordingly, the freedom to agree with the the clauses of dispute resolution for CFTISOG is recognized by Vietnamese law in many different legal documents, not only in general legal documents but also in specialized legal documents 3.2 The clauses determining the method of dispute resolution in CFTISOG in accordance with the provisions of international law and Vietnamese law 3.2.1 The clauses of dispute resolution by negotiation Negotiation is a method of dispute resolution through which the disputing parties work together to discuss, settle and resolve disagreements Accordingly, the settlement of disputes by means of negotiation will be done by the selfsettlement mechanism without the assistance of any third party; not bound by any legal procedures or stereotypes; the implementation of the results of the negotiation is completely dependent on the voluntariness of each disputing party without any legal mechanism to guarantee the enforcement of the agreement of the parties The Vietnamese law regulates the issues of dispute resolution by negotiation with many provisions in different legal documents such as: Articles and 372 of the 2015 Civil Code; Articles and of the 2010 Law on Commercial Arbitration 3.2.2 The clauses of dispute resolution by mediation Meditation is a method of dispute resolution through a third party, the participation of a third party (mediator) will not have the authority to make any binding decisions on the disputing parties That means that the opinion of the mediator is not binding on the disputing parties and it is only consultative for the parties to resolve the dispute The elective mediation clause will bring the disputing parties to a third party, whom they have jointly chosen to resolve the dispute when it arises The third party will base on the content of the clauses to resolve the dispute The issue of dispute resolution in international trade by mediation is regulated through various legal documents such as the "principle of mediation" of the International Chamber of Commerce (ICC); United Nations Commission on Commercial Law (UNCITRAL) "Rules of Mediation"; Article 10, Civil Procedure Code 2015; Article of the 2010 Law on Commercial Arbitration; Decree No 22/2017/ND-CP of the Government dated 24/2/2017 on Commercial Mediation 3.2.3 Arbitration dispute resolution clauses The arbitration agreement clause is a binding clause in the selection of an arbitrator to resolve the dispute, the selection of arbitration to resolve the dispute has eased the burden on the court in resolving the dispute (unless the arbitral tribunal's decision or the arbitration agreement is invalidated) The clauses of the arbitration agreement which form the basis of the arbitrator's jurisdiction, but the arbitral tribunal, the arbitration agreement must be made in writing The issue of dispute resolution by arbitration is governed by many international and national legal documents, such as: the 1958 New York Convention; UNCITRAL Regulations on the Model Law on International Commercial Arbitration; the 2010 Law on Commercial Arbitration of Vietnam 3.2.4 The clauses of agreement to resolve disputes by court According to the 2005 Hague Convention on Agreements on Selection of Courts, the contracting parties have to right to designate the resolution of disputes that have arisen or will arise to be performed by a court of a particular country Accordingly, contracting parties mutually settle and agree with the method of dispute resolution in a clause in the contract with the content of giving the right to resolve the dispute to a specific court, which can be the buyer, the seller or the third country court In fact, the freedom to choose a competent court to resolve dispute is the right of contracting parties, this right is also stipulated in many countries around the world in the national laws It may be concentrated in the country's International Justice Act or in the country's Civil Procedure Act Vietnamese law also has clauses on the competence of Vietnamese courrts to civil cases involving foreign elements in general and cilvil relations involving foreign elements in the trade field in particular 3.3 The clauses of selection of applicable law to resolve disputes in accordance with international law and Vietnamese law 3.3.1 The clauses of choosing applicable law to resolve disputes in accordance with international law In international law as well as in the practice of international trade activities, it is recognized that the contracting parties have the right to choose the applicable law Accordingly, the parties will agree to include in the contract the type of clause to choose the applicable law in order to establish a legal basis for adjusting the rights and obligations of the contracting parties The applicable laws to international agreements can be national laws, international treaties on trade, international trade practices, general principles of contract and legal doctrines For example: CISG 1980 on contracts for the international sale of goods; the 1964 Hague Convention on the Uniform Law of the International Sale of Goods, versions of Incoterms, PICC 3.3.2 The clauses of choosing applicable law to resolve disputes in accordance with Vietnamese law As for the current domestic legal documents, the clauses on contracts in general and applicable law governing CFTISOG in particular are scattered in many different documents such as: The 2015 Civil Code, the 2005 Commercial Law, the Commercial Arbitration Law 2010 , in which the clauses related to the adjustment of the right to freely agree on the terms of choice of applicable law to the contract are recorded in: Clause 1, Article 683 of the 2015 Civil Code stipulating: “Contracting parties in a contract may agree to select the applied law for the contract In case the contracting parties fail to agree the applied law, the law of the country with which such contract closely associates shall apply…”; and Clause 2, Article of the 2005 Commercial Law, Clause 2, Article 14 of the 2010 Commercial Arbitration Law also have similar clauses The applicable law clauses to CFTISOG are also the type of clauses that bring positive values to the resolution of disputes arising from the contract Therefore, the fact that the buyer and the seller develop and include in the content of the contract the applicable law clauses will create favorable conditions for the contracting parties to resolve parties arising in the course of contract performance in a quick and effective manner The conclusion of chapter CHAPTER THE PRACTICE FOR THE ESTABLISHMENT AND THE IMPLEMENTATION OF DISPUTE RESOLUTION IN CFTISOG AND SOME PROPOSES 4.1 The practice of developing and implementing the dispute resolution clause in CFTISOG in Vietnam 4.1.1 The practice setting up the dispute resolution clauses in CFTISOG The practice shows that the formulation of a dispute resolution clause in CFTISOG depends on the interest of the parties to the subject matter of the contract to the dispute in each specific case The following cases can be cited: - In the first case: Where the parties of the contract are not interested in the dispute resolution clauses Ass a result, the parties not develop a dispute resolution clause in the contract In this case, both parties of the contract agree or implicitly consider that it is not necessary to include a dispute resolution clause in the contract - In the second case: Where the parties of the contract are interested, but the interest is not satisfactory in the formulation of dispute resolution clauses This case occurs when both parties of the contract underestimate the role of the dispute resolution clauses Therefore, in the process of developing dispute resolution clauses, the parties often create unclear or even difficult to implement dispute resolution clauses - In the third case: The subject of the contract have the absolute content of the dispute resolution clauses in CFTISOG The consequences of absolutizing the dispute resolution clauses often lead to the unenforceability of the agreement 4.1.2 The pratical implementation of dispute resolution clauses in CFTISOG and some recommendations for Vietnamese enterprises 4.1.2.1 The practical implementation of dispute resolution clauses in CFTISOG The dissertation has mentioned a number of specific cases in practice of dispute resolution related to international goods sale and purchase contracts in different countries, specifically: First, the dispute resolution case related to the issue of determining the validity of the dispute resolution clauses in the international arbitration contract through the actual case between the seller (Germany) and the buyer (Rumani), the case clearly shows the independence of this type of clause from the contract when the competent arbitrator is directly involved in resolving the dispute Second, the case related to the issue of jurisdiction to resolve the disputes on CFTISOG through the practice of resolving disputes about CFTISOG between the seller (the US) and the buyer (India), the case shows that in practice, disputes have arisen regarding the determination of jurisdiction to resolve disputes Third, the practice of dispute resolution on CFTISOG shows that when signing a contract, the parties often ignore the clause related to the applicable law in the contract However, when a dispute arises, this clause is the first to be considered and it has a large influence on the outcome of the dispute resolution The practice shows that when the parties compose a contract, they have not developed the clauses on applicable law in the contract, so when a dispute arises, the resolution faces many difficulties, for example: the dispute between two Yugoslav businesses and a Swiss company; the dispute between Italian seller and Korean buyer 4.1.2.2 Some proposals for Vietnamese enterprises on the development and the application of dispute resolution clauses in CFTISOG -First: choose a dispute resolution method When developing a dispute resolution clause, the first thing that the parties of the contract must is to clearly define the method of resolution to be applied if a dispute occurs, the methods of dispute resolution of CFTISOG include: Negotiating, mediating, being judged by the arbitration and or court - Second: The dispute resolution clauses should be formed in writing Although in international treaties, specifically in the 1980 Vienna Convention of the United Nations (Vietnam is a member), there are provisions allowing the establishment of the dispute resolution clauses in any form However, according to the clauses of the New York Convention (Vietnam is a member) as well as the 2005 Commercial Law and the 2010 Law on Commercial Arbitration of Vietnam, the legal form of the arbitration clause is considered legal in dispute resolution in the commercial field, including CFTISOG, must be in written form or an equivalent form Thus, in order to ensure the formal legality of this clause, in the process of signing CFTISOG, Vietnamese enterprises need to develop this clause in written form -Third: Actively compose an agreement on the choice of applicable law in the clauses of dispute resolution Theoretically, a contract is an agreement of the subject parties Therefore, the parties have the right to agree with the contract on all issues, including the applicable law to the contract In the process of agreeing to choose the law, the parties need to take the initiative to avoid the case when a dispute occurs, the reference to the applicable law is beyond the expectations of the parties 4.2 Some proposals for the improvement and enforcement of the law on dispute resolution clauses in CFTISOG 4.2.1 The regulations on the content of force majeure cases in accordance with international practices There should be specific provisions of force majeure in the current Commercial Law The content of force majeure situations should be composed on the basis of UNIDROIT's Code of Regulations on International Commercial Contracts (2016 version) specified in Article 7.1.7 on force majeure The development of specific provisions force majeure situations in Vietnamese law, based on UNIDROIT's Code of International Commercial Contracts, demonstrates the compatibility of national laws with international practices 4.2.2 Improve legal knowledge on dispute resolution clauses when signing CFTISOG 4.2.2.1 Disseminate businesses about paying due attention to the clauses of CFTISOG, including the dispute resolution clause In order to create a safe and effective legal environment, the parties of the contract need to be propagated to improve their legal knowledge about CFTISOG, especially the knowledge of dispute resolution clauses in the contract Specifically: it is necessary to define a dispute resolution clause that is an indispensable clause in the contract signing process; this clause is the legal basis to protect the interests of the parties to the contract 4.2.2.2 Increase the time of teaching knowledge on dispute resolution in CFTISOG at legal training institutions Providing the knowledge about dispute resolution clauses to the students at law traing institutions is one of the most effective ways Because the students are and will be working in legal positions of enterprises This is a favourable condition for knowledge about dispute resolution to be received and spread to the subjects related to the signing and implementation of CFTISOG of the enterprise 4.2.3 Create a favourable legal environment for dispute resolution to be prioritized for settlement by mediation In the line with the trend of considering mediation as an important procedural act in the dispute resolution process, as well as ensuring the compatibility of clauses in different legal documents related to mediation, so we shoud study and include in the current Commercial Arbitration Law on the conditions for applying the mediation method Accordingly, the mediation is considered as an encouraging condition for the parties to use in the dispute resolution process before being judged by the arbitration 4.2.4 Vietnam should join in the Singapore Convention on International Commercial Mediation In the context of Vietnam's deeper international integration, the accession to thiê Convention is very necessary The accession to the Singapore Convention affirms Vietnam's position on contributing to building and respecting international commitments in all fields, including international trade; expand relations with countries in the region and the world; creating an objective and transparent legal environment to attract commercial activities of partners in international trade activities The conclusion of chapter THE CONCLUSION OF THE DISSERTATION For the implementation of the topic "Theory and pratical issues of dispute resolution clauses in international sale and purchase contracts- the experience for Vietnam", I would like to make some general comments below: The dispute resolution clauses in CFTISOG are the clauses that are agreed upon by the parties of CFTISOG to determine the method or law to be applied to handle conflicts of interests between the parties arising from the contract The dispute resolution clauses may be agreed within CFTISOG or may also be located outside CFTISOG The dispute resolution clauses have an important meaning in resolving disputes arising in the process of implementing CFTISOG Specifically, the determination of the method of dispute resolution, the applicable law to the contract makes the dispute resolution (if arising) be handled in a timely and effective manner for the parties in the contractual relationship The principle of "the freedom of agreement" of the dispute resolution clause in CFTISOG should be understood as the freedom within the framework of the law Because according to the clauses of international law and national law, the form of the arbitration agreement must be expressed in writing or its equivalent The practice shows that the constitution of CFTISOG of Vietnamese traders still has many potential risks Therefore, in order to limit and minimize risks during the implementation of CFTISOG, Vietnamese enterprises and Vietnamese traders when entering into CFTISOG need to develop a dispute resolution clause with full contents such as: clearly defining the method of dispute resolution and applicable law In order to create a legal environment for the dispute resolution of CFTISOG through mediation, the Government should include regulations on mediation procedures as an encouraging condition, before bringing the disputes of CFTISOG to the arbitration Vietnam should soon join in the Singapore Convention on International Commercial Mediation Accession to this Convention will be the legal basis to ensure the implementation of international commercial mediation results.This creates business confidence in Vietnam's international commercial mediation activities LIST OF DISCLOSED RESEARCH RELATED TO THE THESIS No Name of Issue Number magazine no./year of pages Contracts of High Value HUFS Law No from Vietnamese Law on Review 8/2019 Name of the project Perpectives on the Enterprises Agency Theory of the United States - Concepts and forms of agency Risk management mechanism for contracts of high value in companies Journal of Procuratorate 8/2020 studies Journal of Procuratorate studies 2/2021 ... expressed in two forms, namely: the written form and the non-written form For the written form, the clauses of dispute resolution are reflected in the contract or written agreement to resolve... are the subject have to be on the list of the HS Convention on the " Harmonized Hàng hóa đối tượng phải có tên danh mục Công ước HS “Harmonized system of description and numbering of goods" of... resolution is cohesive, mutually supportive Accordingly, choosing a dispute resolution method can lead to a choice of applicable law For example, choosing the method of dispute resolution as arbitration
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