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.
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 24th, 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 mediationis 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.
How ANT Lawyers Could
Help Your Business?
Contact Us for ADR & Mediation Services provided by
qualified mediators and lawyers, supported by field experts.
Via email ant@antlawyers.vn,
office tel (+84) 24 32 23 27 71 or talk to our partner directly at + 84
912 817 823.
