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.
