Competence to settle commercial disputes by commercial mediation in Vietnam
Commercial disputes are common problems must face by the subjects involved in business relationships; especially businesses. Disputes can arise in one or more different areas. Therefore, choosing the right dispute resolution method is extremely important. In fact, when there is a dispute; There are still a number of subjects who do not understand the legal provisions on the jurisdiction to solve. One of them is the authority to settle commercial disputes by commercial mediation. So, what does our country’s law stipulate on the competence to settle commercial disputes by commercial mediation?
Let’s find out with Lawyer X through the following article:
Legal grounds
Commercial Law 2005
Decree 22/2017/ND-CP
Consulting content
What is Commercial Dispute Mediation?
Commercial mediation is a method of settling commercial disputes agreed upon by the parties and supported by a commercial mediator to resolve disputes per the law.
Besides, commercial dispute settlement is an activity of a competent agency or organization to carry out procedures for settling disputes arising in commercial activities.
Commercial dispute mediation is one of the commercial dispute resolution methods by which one party acts as a mediator to assist in the settlement of disputes between the parties.
Competence to settle commercial disputes by commercial mediation
Authority according to the provisions of law
Accordingly, the type of dispute must fall within the scope of dispute resolution by commercial mediation. Article 2 of Decree 22/2017/ND-CP stipulates cases where disputing parties can use commercial mediation to resolve their disputes.
Such disputes include: Disputes between parties arising from commercial activities; Disputes between parties in which at least one party has commercial activities; Other disputes between the parties as provided for by law can resolve by commercial mediation.
From there, you can understand the scope of jurisdiction of commercial mediation does not only include commercial disputes; but can also extend to other types of disputes; provided that the specialized law provides for the use of commercial mediation
This regulation is completely similar to the regulations on dispute settlement jurisdiction of commercial mediation with commercial arbitration.
Authority conferred by the disputing parties to the mediator
The foundation of commercial mediation is that the parties agree on mediation in commercial disputes.
Under the current regulations; a Mediation agreement is an “agreement between the parties on the right to settle disputes that may arise or have arisen employing conciliation” (Clause 2, Article 3 of Decree 22/2017/ND-CP).
Validity conditions of the mediation agreement
Current regulations on mediation agreements in Decree 22/2017/ND-CP; We notice the absence of provisions to determine the validity of mediation agreements. The mediation agreement is applied according to the provisions of Article 117 of the Civil Code; on the conditions for the validity of civil transactions, fully ensuring the following factors:
“1. A civil transaction takes effect when the following conditions are fully satisfied:
a) The subject has civil legal capacity, civil act capacity suitable to the established civil transaction;
b) Entities participating in civil transactions completely voluntarily;
c) The purpose and content of the civil transaction do not violate the prohibition of the law and do not violate social ethics.
2. The form of a civil transaction is the effective condition of a civil transaction, in case it is provided for by law.”
Scope and conditions for settling commercial disputes by mediation
Scope of dispute resolution by commercial mediation
Commercial disputes between the parties, if they want to choose to settle by mediation, must fall into one of the cases specified in Article 2 of Decree 22/2017/ND-CP.
The scope of commercial disputes to be resolved by commercial mediation is similar to the scope of disputes selected to be resolved by commercial arbitration as provided for in Article 2 of the 2010 Commercial Arbitration Law. Thus, disputes that can be resolved at arbitration can all be resolved by commercial mediation
Conditions for settling disputes by commercial mediation
Conditions for commercial disputes to resolve through mediation are specified in Article 6; Article 11 of Decree 22/2017/ND-CP, that is, the parties must have a conciliation agreement.
The mediation agreement is made in writing, which can be established in the form of a mediation clause in the contract or the form of a separate agreement; and may be made before or after a dispute arises or at any time during the dispute resolution process.
The condition for settling commercial disputes by conciliation is that there must be a mediation agreement; This agreement can be a clause in a contract or a separate agreement. This provision may be drafted before or after a dispute arises.
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Frequently asked questions:
According to the provisions of Article 319 of the Commercial Law 2005; The statute of limitations for initiating lawsuits applicable to commercial disputes is two years from the time when legitimate rights and interests are infringed, except for the case specified at Point e, Clause 1, Article 237 of this Law.
According to the provisions of Clause 1, Article 3 of the 2005 Commercial Law; Commercial activities are activities for profit-making purposes, including the purchase and sale of goods, provision of services, investment, trade promotion, and other activities.
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