What are Forms of Arbitration Agreement under Vietnam Laws?

Under Article 16 of Vietnam Law on Commercial Arbitration, forms of arbitration agreement resolving disputes are in written form.  In particular:

 

Arbitration Lawyers in Vietnam

An arbitration agreement may be made in the form of an arbitral clause in a contract or in the form of a separate agreement.

An arbitration agreement must be in writing. The following forms of agreement may also be regarded as written form:

1.Agreement made through communication between the parties by telegram, fax, telex, email or other forms provided for by law;

2.Agreement made through exchange of written information between the parties;

3.Agreement recorded in writing by a lawyer, notary public or competent institution at the request of the parties:

4.In their transactions, the parties make reference to a document such as a contract, document, company charter or other similar documents which contains an arbitration agreement;

5.Agreement made through exchange of petitions and self-defense statements which reflect the existence of an agreement proposed by a party and not denied by the other party.

In case multiple arbitration agreements are reached on the same dispute, the latest lawful agreement shall apply.

If the contents of an arbitration agreement are not clear or could be understood in more than one way, regulations of the Civil Code shall apply.

When there is a handover of rights and obligations under a transaction or contract which contains a lawful arbitration agreement, such agreement is still applicable to the transferee and the transferor, unless otherwise agreed by the parties concerned.

Multiple legal relationships to resolve the same case shall be combined if the parties agree to combine multiple legal relationships to resolve the same case, or the arbitration rules allow for combination of multiple legal relationships to resolve the same case.

Arbitration lawyers in Vietnam at ANT Lawyers - Law firm in Vietnam with accreditation in national and international arbitration practice could help providing legal advice in disputed matters, and guide the clients throughout the process. The arbitration lawyers could also advise the clients on various matters from choice of arbitrator, choice of arbitration rules, ad-hoc or institutional arbitration, place of arbitration, enforcement of arbitral award.

 Source ANTLawyers: https://antlawyers.vn/qa/what-are-forms-of-arbitration-agreement-under-vietnam-laws.html

Read More

What are Principles of Dispute Settlement in Arbitration

Dispute resolution methods are litigation, negotiation, mediation and arbitration. Handing disputes requires litigation law firm with dispute lawyers in Vietnam having experience and knowledge to provide resolutions to complex cross-border issues, commercial and civil disputes. 

 

Arbitration Lawyers in Vietnam

According to Article 4 of Vietnam Law on Commercial Arbitration, the following principles must be adhered to during dispute settlement in arbitration:

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

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

Disputing parties are equal in their rights and obligations. The arbitration council shall create conditions for disputing parties to exercise their rights and fulfill their obligations.

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

The arbitral awards are final.

Arbitration has become an extremely popular method of dispute resolution, as many businesses prefer it over the high costs of litigation.

Arbitration lawyers in Vietnam at ANT Lawyers - Law firm in Vietnam with accreditation in national and international arbitration practice could help providing legal advice in disputed matters, and guide the clients throughout the process. The arbitration lawyers could also advise the clients on various matters from choice of arbitrator, choice of arbitration rules, ad-hoc or institutional arbitration, place of arbitration, enforcement of arbitral award.

 

Read More

Forms of Disputes and Approaches to Settlement in Vietnam

Dispute in Vietnam could be between parties in business transaction, foreign investors and Vietnam government, or between countries in implementing international treaties.

 

   Forms of Disputes and Approaches to Settlement in Vietnam

The formation of market economy in Vietnam took place in the context of the development in the width and depth of the economic ties at a significant fast pace that make Vietnam an important part of the world supply chain. Vietnam suppliers could sell the goods and services to the world and the foreign supplier could also export their goods and services to Vietnam market. Further, as the Vietnam market opens up, foreign investors could invest through various forms of investments in Vietnam i.e. acquire equities in Vietnam companies, establish business in Vietnam. During this process, disputes are an inevitable result which has been growing in scale and complexity.

Most should agree that disputes shall be construed as the dissent, inconsistencies or conflicts of interests, rights and obligations between the parties in the economic relations at different levels. Accordingly, economic disputes can have the following basic forms:

-Disputes in business are between the participants in a business transaction including investments, production to consumption of products or performance of services on the market for profit purposes i.e. professional and product liability, debt disputes over a business transaction, franchise disputes, intellectual property disputes, and disputes over contract for supply of goods or services…

-Disputes between foreign investors with Vietnam government agencies, arising in the implementation of the BTO, BT, BOT, and the implementation of international agreements on promotion and protection bilateral and multilateral investment i.e. government policy and policy measures, concession to water and sewerage, power or energy supply, project or contract payment…

-Disputes between countries in the implementation of the international bilateral and multilateral agreements.

In Vietnam, as the disputes arise, parties involved could consider resolving the matters through negotiation, mediation, arbitration, or taking court actions after taking consideration of various factors including cost, time, and the complexity of the disputes. ANT Lawyers - law firm in Vietnam with skillful arbitration lawyers in Vietnam should be consulted to provide the suitable advice for dispute resolution.

 

Read More

Determination of Competence between Court and Arbitration in Vietnam

Dispute resolution is always a matter of concern in Vietnam when it comes to the regulations and the effective enforcement of government authority.

 

Arbitral Award Enforcement Law Firm in Vietnam

The Council of Judges of the Supreme People’s Court issued Resolution 01/2014/NQ-HDTP in order to provide guidelines for the Law on Commercial Arbitration in Vietnam on dispute resolution process.

Accordingly, the courts in Vietnam are permitted to deal with disputes which are agreed to be settled by arbitrators in the following cases:

i) There is a Decision of the court on cancelling Arbitration’s Judgement, Council of Arbitration’s Decision on recognition agreement of parties.

2) The parties have agreed to settle their disputes at a specific arbitration center but it has stopped operating;

3) The arbitrators selected by the parties cannot participate in solving disputes due to force majeure events;

4) The appointed arbitrator refuses to settle the dispute without an agreement on a replacement;

5) The proceedings rules selected by the parties are different from different from those of the selected arbitration center, and this center does not adopt rules of the other centers.

6) Consumers object to the arbitrator selection according to Articles 17 of the Law on Commercial Arbitration

In the first four cases, the parties must not reach an alternative agreement on replacement.

Arbitration lawyers in Vietnam at ANT Lawyers with accreditation in national and international arbitration practice could help providing legal advice in disputed matters, and guide the clients throughout the process. The arbitration lawyers in Vietnam could also advise the clients on various matters from choice of arbitrator, choice of arbitration rules, ad-hoc or institutional arbitration, place of arbitration, enforcement of arbitral award. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

 

Read More

The Need for Commercial Mediation in the Performance of International Contracts

In contract dispute resolution, the average time to resolve a commercial contract dispute at the Court in Vietnam, even with the help of dispute lawyers in Vietnam whom know well the process would take long time through multiple proceedings. This period will last longer if there is a foreign party in the dispute, including service of notarization, legalization, authentication (or apostille) the documents. According to World Bank statistics, the cost of resolving a commercial dispute at the Court accounts for about 29% of the contract value (including attorneys’ fees, court fees, judgment execution fees).

 

Contract dispute lawyers in Vietnam

The practice of resolving the dispute case at the Court appears to face many challenges of time lengthening and possible effective enforcement leading to cost of time and money. Therefore, the selection of dispute resolution in the mediation center is a possible option to resolve this issue.

Vietnam authorities and international agencies have taken active measures needed to promote the application of commercial mediation in international contracts, in order to resolve issues more quickly and effectively in international trade disputes. The application of commercial dispute resolution at mediation centers in Vietnam will save time and costs for dispute resolution. In addition, the dispute resolution at the mediation center will also help the parties maintain the relationship for future business transactions.

Until Aug 2019, in Vietnam, there are 7 commercial mediation centers licensed by the Ministry of Justice with a team of domestic and international certified mediators and lawyers who can contribute to resolving disputes in international trade contracts. The use of mediation centers in the settlement of disputes in Vietnam with the help of lawyers in Vietnam will help the parties to find common grounds and together save cost, time, keep confidentiality of the dispute and could continue to do business with each other.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Dispute Attorneys in Hanoi, Ho Chi Minh City and Danang, will help customers conveniently drafting contracts and assist in resolving contract disputes in Vietnam.

 

Read More

Fundamental Contract Breaches in Law on Commerce 2005 and CISG 1980

What Are Fundamental Contract Breaches in Law on Commerce 2005 and CISG 1980?

Fundamental breach is a type of contract breach, in which the Law on Commerce 2005 defines that a breach of contract committed by one of the parties is fundamental if it causes damage to the other party to the extent that the other party fails to achieve purpose of contract conclusion. The significant factor that makes the difference between the fundamental and minor breach of contract is the materiality.

 

Contract Dispute Lawyers in Vietnam

Fundamental breach is an important foundation for the imposition of trade remedies such as temporary suspension of performance, suspension of performance or contract cancellation when the contract has no specific agreement. Nonetheless, Law on Commerce 2005 does not provide further guidance on fundamental breach. Court or arbitrator has a right to determine whether a breach is fundamental on a case-by-case basis. 

As set forth in CISG 1980, a breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result. CISG also does not provide specific provisions to explain fundamental breach in details. Nonetheless, it can be deemed that in order to constitute a fundamental breach, three following factors need to be met: (i) a breach is made, (ii) detriment resulted from such breach substantially deprives him of what he is entitled to expect under the contract, and (iii) the breach can be foreseen.

The difference between constitution of a fundamental breach under CIGS 19080 and Law on Commerce 2005 is that: a breach cannot be treated as under CISG 1980 in case the breaching party did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result. Law on Commerce 2005 does not stipulate factor (iii) as mentioned herein but requires that (1) a breach is made and (2) damage resulted from such breach causes other party failed to achieve its purpose of contract conclusion to constitute a fundamental breach. The aggrieved party accordingly has a right to impose remedies such as temporary suspension of performance, suspension of performance or contract cancellation.

The consequence factor of fundamental breach in Law on Commerce 2005 is similar to CIGS 1980. In case the purchaser is aggrieved party, what he/she is entitled to expect under the contract is right to receive the goods, to own the goods and to sell to other parties to earn profits or manufacture products or other ways he/she can make a profit. In case the seller is aggrieved party, what he/she is entitled to expect under the contract is right to receive payments, which is profits he/she may earn. The purpose of contract conclusion as provided in Law on Commerce 2005 is same as what the purchaser and seller are entitled to expect under the contract as stipulated in CISG 1980.

ANT Lawyers - a Dispute Law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

 

Read More

Mediation Services in Vietnam

What are the Benefits of Mediation Services in Vietnam?

The process of integrating with market economy is developing strongly, which creates many opportunities for businesses to extend their operation and cooperate with international companies. As a result, dispute arising is inevitable. To coincide with benefits, especially information confidentiality under parties’ agreement, commercial mediation is one of the commercial alternative dispute resolution which is more and more popular.

 

Mediation Services in Vietnam

Commercial mediation is a dispute resolution negotiated by parties and the mediator is the third party as an intermediary to support parties to resolve dispute under the regulations of Decree 22/2017/ND-CP on February 24^th, 2017. Following the regulations, commercial mediation can be negotiated by parties before, after or at any time of dispute resolution process. By Decree 22, commercial mediation is applied in cases of a dispute between parties with at least one party practicing commercial activities or another dispute under the laws can be resolved by the commercial mediation. Moreover, participating in commercial mediation is voluntary and all the information of mediation shall be kept secret under parties’ agreement, provided that agreement’s content is legal.

Commercial mediation is becoming a popular dispute resolution because of its simple and flexible procedure, economical cost for parties. Parties have chance to choose a suitable procedure and avoid complicated legal procedure. Under the law on parties’ self-determination to choose any mediator and a place to proceed procedures, which helps parties select a mediator with professional skills on dispute resolution. Furthermore, parties could reach an agreement with good will and cooperating spirit. Both still continue to develop and protect business relationship because of parties’ benefits. Under the Decree, all the information involving dispute must be kept secret, unless parties have written agreement or current law has other regulations.

Under the law, parties are entitled to choose a mediator to resolve dispute. According to Decree 22/2017/ND-CP, commercial mediators include commercial case mediators and mediators from commercial mediation institutions selected by the parties or appointed by a commercial mediation institution at the request of disputing parties to support them to resolve dispute pursuant to regulations of this Decree. A person who wants to become a mediator must qualify conditions of Article 7 of Decree 22. Apart from general moral standards following Law on Civil, mediators must have a university or higher qualification and at least two years of working experience in their educated discipline, also mediation skills as well as legal understanding, knowledge of business and commercial practice. Instead of bringing the case to court, which parties cannot predict the result, even inextricable, choosing a mediator who is knowledgeable and experienced could help parties resolve dispute smoothly.

Pursuant to Civil Procedure Code 2015, time for resolving commercial disputes belonging to the jurisdiction of the Court could take years. Meanwhile, choosing mediation, parties take less time to resolve dispute. Moreover, dispute is absolutely resolved by parties’ agreement because in the mediating procedure, with mediator’s support, parties can show their decision on dispute resolution. Then, they can save significant cost.

Another benefit of dispute resolution is that parties decide themselves how to resolve dispute and can know the result. This is a prominent advantage of dispute resolution compared with other resolutions, which have unpredictable result. Importantly, mediation is a private procedure so that parties’ name is not revealed publicly during mediating procedure, decrease hazards to parties’ business reputation.

According to Investment Climate Advisory Services of the World Bank Group, Alternative Dispute Resolution Center Manual: A Guide for Practitioners on Establishing and Managing ADR Centers, mediating resolution has brought many benefits. For individual benefits, mediation reduces the need for enforcement proceedings to ensure one party complies with an agreement, since the parties enter into their settlement agreements consensually. For private sector benefits, mediation enhances private sector development by creating a better environment for business. It lowers the direct and indirect costs that businesses incur in enforcing contracts and resolving disputes.

Contact Us for ADR & Mediation Services in Vietnam provided by qualified mediators and lawyers, supported by field experts. Via email ant@antlawyers.vn, office tel +84 28 730 86 529

 

Read More

Dispute Attorneys in Hanoi

ANT Lawyers law firm could assist clients on dispute resolution matters throughout Vietnam from office in Hanoi.

 

Dispute attorney in Hanoi

We have dispute attorneys in Hanoi with qualification and experience to assist client to resolve dispute in Vietnam.

We have been representing clients in dispute in various sectors i.e. dispute in international trade, dispute in commercial transactions, dispute in partnership or shareholder agreement, dispute in property sales and purchase, dispute in intellectual property, dispute in finance, dispute in maritime matters.

Our expertise, experience, and understanding of Vietnam culture allow us to offer client a suitable and flexible solutions to the matters, taking into consideration of commercial perspective of the issues the client face, and take the client throughout the stages of litigation proceeding at Vietnam national or provincial courts, and arbitration centers.

If possible, we advise client on alternative dispute resolution, including mediation, which our lawyers are well trained and certified internationally in US and EU with adaption of skills to Vietnam cultures to help client resolve conflicts without formal proceeding to save cost, time and maintain the relationship between disputed parties.

Our dispute resolution practice at ANT Lawyers helps our clients with the following:

Negotiation: reviewing relevant contracts and documents, advising possible courses of action and negotiating with relevant parties before initiating the legal proceeding.

Litigation and legal representation: representing clients before Vietnamese courts and other Vietnamese authorities.

Arbitration: advising on choice of arbitration, drafting arbitration clause, and representing clients for recognition and enforcement of foreign arbitral awards.

Alternative proceedings: certain alternatives may be available for dispute resolution in Vietnam.

ANT Lawyers - a dispute law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services.

 You could learn more about ANT Lawyers Dispute Practice or contact our dispute attorney in Hanoi, for advice via email ant@antlawyers.vn or call our office at (+84) 24 730 86 529.

 

Read More

Dispute Law Firm in Vietnam

ANT Lawyers law firm could assist clients on dispute resolution matters throughout Vietnam from offices in Ho Chi Minh City, Hanoi and Da Nang.

 

Dispute law firm in Vietnam

We have been representing clients in dispute in various sectors i.e. dispute in international trade, dispute in commercial transactions, dispute in partnership or shareholder agreement, dispute in property sales and purchase, dispute in intellectual property, dispute in finance, dispute in maritime matters.

Our expertise, experience, and understanding of Vietnam culture allow us to offer client a suitable and flexible solutions to the matters, taking into consideration of commercial perspective of the issues the client face, and take the client throughout the stages of litigation proceeding at Vietnam national or provincial courts, and arbitration centers.

If possible, we advise client on alternative dispute resolution, including mediation, which our lawyers are well trained and certified internationally in US and EU with adaption of skills to Vietnam cultures to help client resolve conflicts without formal proceeding to save cost, time and maintain the relationship between disputed parties.

Our dispute resolution practice at ANT Lawyers helps our clients with the following:

Negotiation: reviewing relevant contracts and documents, advising possible courses of action and negotiating with relevant parties before initiating the legal proceeding.

Litigation and legal representation: representing clients before Vietnamese courts and other Vietnamese authorities.

Arbitration: advising on choice of arbitration, drafting arbitration clause, and representing clients for recognition and enforcement of foreign arbitral awards.

Alternative proceedings: certain alternatives may be available for dispute resolution in Vietnam.

ANT Lawyers - a dispute law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services.

You could learn more about ANT Lawyers Dispute Practice or contact our dispute lawyers in Hanoi, dispute lawyers in Da Nang and dispute lawyers in Ho Chi Minh city for advice via email ant@antlawyers.vn or call our office at (+84) 24 730 86 529.

 

Read More

The Dispute Settlement Mechanism of ASEAN

How Dispute Settlement Mechanism of ASEAN Work?

As economic cooperation has expanded, having an effective mechanism to resolve disputes arising between member countries has become an essential need. Therefore, since 1996, ASEAN has started drafting a Protocol on Dispute Settlement Mechanism, and this Protocol was signed by ASEAN Economic Ministers on November 20, 1996 in Manila (Philippines).

 

Dispute Lawyer in Vietnam

The dispute settlement mechanism of ASEAN is built on the spirit of negotiation and mediation. At any time, Member States which are parties to the dispute have the right to choose forms of mediation. These forms may begin or end at any time. Only when the procedure for mediation  has ended, the complainant proceeded to bring the matter to the Senior Economic Officials Meeting of ASEAN (SEOM). While the dispute is in progress, if the parties to the dispute agree, mediation procedures will continue to apply.

If the consultation does not resolve the dispute within sixty (60) days of the receipt of the request, the matter will be referred to SEOM. SEOM will set up a panel or, if possible, refer the matter to the special rules and procedures team or additional for review. However, in specific cases, if deemed necessary, SEOM may decide to resolve the dispute amicably without having to appoint a panel.

SEOM will review the panel report during its discussion and give a decision to the dispute within thirty (30) days from the date the panel submitted the report. In exceptional cases, SEOM may have an additional ten (10) days in adjudicating a dispute. SEOM representatives of Member States who are parties to the dispute may be present during the discussion but may not participate in judgments of SEOM. SEOM will adjudge on a majority basis.

Member States that are parties to the dispute may appeal the judgments of SEOM to the ASEAN Economic Ministers (“AEM”) within thirty (30) days. AEM must make a decision within thirty (30) days of the appeal. In exceptional cases, AEM may have an additional ten (10) days to make a decision on dispute resolution.

ANT Lawyers is a Dispute law firm in Vietnam, recognized by Legal500, IFLR1000. We are an exclusive Vietnam member of Prea Legal, the global law firm network covering more than 150 jurisdictions. The firm provides a range of legal services to multinational and domestic clients. 

 

Read More

Handling Violations of Competition Laws in Vietnam

Foreign brands are increasingly popular in the Vietnam market as Vietnam economy integrates into world economy. The openings of economy creates opportunities to attract foreign investment into Vietnam through establishment of companies. To continue to protect the fair competition, and interest of consumer, it is important that the Vietnam state authority ensures the business environment. Accordingly, violations related to competition will be handled in accordance with the law.

 

Dispute lawyers in Vietnam

Acts of violation of competition under Vietnam laws are defined in Article 1 of Decree 71/2014 / ND-CP, including: violations of regulations on control of acts of restraint of competition; acts of violating regulations on acts of unfair competition; violations of other provisions of law on competition. According to the provisions of law, the above acts shall be subject to the forms of punishment and fine. The most common and most powerful impact on businesses and consumers are the violation of unfair competition.

In practice, there are a number of instances where unfair competition acts are associated with intellectual property rights violations, which have a significant impact on business activities of enterprises in the same field; violation of business secrets; activities of advertising that are prohibited i.e. make direct comparison against competitor, provide falsified or confused information to consumers…

If committed acts of unfair competition, the violator will be subject to fine level from VND 10,000,000 to VND 140,000,000. At the same time, additional measures and remedies will be applied, depending on the seriousness of the breach, such as the revocation of the enterprise registration certificate; deprivation of the right to use licenses or practice certificates; confiscation of material evidences and means used to commit the violation, including the confiscation of profits earned from the commission of the violation; to restructure the enterprise, rectify to the public…

From the management of state authority, the detection and handling of unfair competition acts create conditions for enterprises to have equal opportunities in the market economy. From the enterprise’s perspective, it is important to continuously review its business activities in Vietnam to ensure compliance to competition law by its lawyers.

ANT Lawyers – a  law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

 

Read More