FORMS OF RESOLVING COMMERCIAL DISPUTES

Table of Contents

1. What is a commercial dispute?

2. Forms of resolving commercial disputes

2.1 Negotiation between two parties

2.2 Mediation

2.3 Dispute resolution by commercial arbitration

2.4 Dispute resolution by court

3. Statute of limitations for filing a lawsuit for commercial disputes

1. What is a commercial dispute?

Table of Contents

1. What is a commercial dispute?

2. Forms of resolving commercial disputes

2.1 Negotiation between two parties

2.2 Mediation

2.3 Dispute resolution by commercial arbitration

2.4 Dispute resolution by court

3. Statute of limitations for filing a lawsuit for commercial disputes

1. What is a commercial dispute?

Pursuant to Article 3 of the 2005 Commercial Law, it is stipulated that: “1. Commercial activities mean activities for the purpose of generating profits, including: sale and purchase of goods, provision of services, investment, commercial promotion and other activities for the profit purpose.”

According to the above provisions, commercial disputes are understood as conflicts between two cooperating parties regarding rights and obligations in the process of commercial business activities.

2. Forms of commercial dispute resolution

2.1 Negotiation between two parties

Negotiation is understood as a method of dispute resolution through the parties voluntarily discussing, agreeing, self-settling, and resolving arising disagreements to eliminate disputes without the assistance or judgment of any third party.

The negotiation process between the parties is not bound by legal regulations on the order and procedures for resolution.

The negotiation result depends entirely on the voluntariness of each disputing party without any legal mechanism to ensure the enforcement of the parties’ agreement during the negotiation process.

2.2 Mediation

Pursuant to Clause 1, Article 3 of Decree No. 22/2017/ND-CP on commercial mediation as follows: “1. Commercial mediation means a method of resolving commercial disputes agreed upon by involved parties with the assistance of a commercial mediator acting as an intermediary in accordance with this Decree.”

The principles of dispute resolution by commercial mediation are stipulated in Article 4 of Decree No. 22/2017/ND-CP specifically as follows:

“Article 4. Principles of dispute resolution through commercial mediation

1. Disputing parties shall participate in mediation on an entirely voluntary basis and are equal in terms of rights and obligations.

2. Information relating to a mediation case shall be kept confidential, unless otherwise agreed upon in writing by involved parties or otherwise prescribed by law.

3. Mediation agreement contents must neither violate prohibitory provisions of law nor contravene social morality, nor aim at shirking obligations nor infringe upon rights of a third party.”

2.3 Dispute resolution by commercial arbitration

Pursuant to Clause 1, Article 3 of the Law on Commercial Arbitration 2010, it is stipulated that: “1. Commercial arbitration means a mode of dispute settlement agreed by the parties and to be conducted under this Law.”

The principles of dispute resolution by commercial arbitration are stipulated in Article 4 of the Law on Commercial Arbitration 2010:

“Article 4. Principles of dispute settlement by arbitration

1. Arbitrators must respect the parties agreement if such agreement neither breaches prohibitions nor contravenes social ethics.

2. Arbitrators must be independent, objective and impartial and shall observe law.

3. Parties in dispute shall have equal rights and obligations. Arbitration tribunals shall be responsible to facilitate the parties to exercise their rights and to discharge their obligations.

4. Dispute settlement by arbitration shall be conducted in private, unless otherwise agreed by the parties.

5. Arbitral awards are final.”

2.4 Dispute resolution by Court

Pursuant to Clause 1, Article 30 of the 2015 Civil Procedure Code, it is stipulated that:

“Article 30. Business and/or trade disputes falling under the courts’ jurisdiction

1. Disputes arising from business or trade activities among individuals and/or organizations with business registration, which are all for the purpose of profits.”

According to the above provisions, the method of dispute resolution by the Court is prescribed in the 2015 Civil Procedure Code.

The principle of dispute resolution by the Court is based on Chapter II of the 2015 Civil Procedure Code as follows:

– Compliance with the law in civil proceedings

– The right to request the Court to protect legitimate rights and interests

– The right to decide and self-determination of the parties

– Equality of rights and obligations in civil proceedings

– Ensuring the right to protect the legitimate rights and interests of the parties

– Judges, People’s Jurors adjudicate civil cases, Judges resolve civil matters independently and only comply with the law

– The Court adjudicates promptly, fairly, and publicly

– Ensuring impartiality and objectivity in civil proceedings

– Ensuring the first-instance and appeal trial regime

– Ensuring the validity of judgments and decisions of the Court

– Ensuring litigation in trials.

3. Statute of limitations for filing a lawsuit for commercial disputes

Pursuant to Article 319 of the 2005 Commercial Law, the statute of limitations for filing a lawsuit is:

“Article 319. Statute of limitations for initiating lawsuits

The statute of limitations for lawsuits applicable to commercial disputes shall be two years from the moment when the legitimate rights and interests are infringed upon, except for cases specified at Point f, Clause 1, Article 237 of this Law.”

Simultaneously, pursuant to Point e, Clause 1, Article 237 of the 2005 Commercial Law, the following provisions are made regarding cases of exemption from liability for traders providing logistics services:

“Article 237. Liability exemption for traders providing logistic services

1. Apart from the cases of liability exemption specified in Article 294 of this Law, traders providing logistic services shall not be liable for the goods loss caused in the following cases:

…..

e/ Trader providing logistic services are not notified of complaints within fourteen days from the date they deliver goods to recipients;”