The trend of international integration and regional integration brings opportunities for business cooperation beyond the borders of the country. More and more business and trade relations formed with the participation of parties who are traders from many countries. In the process of business cooperation, disputes are inevitable. At that time, the parties to the dispute often choose a Court or Commercial Arbitration to settle the dispute. Learn about commercial business judgments with foreign elements with Lawyer X in the article below.
Business and commercial disputes involving foreign elements
Commercial business disputes are conflicts (disagreements or conflicts) of interests over rights and obligations between subjects participating in the process of commercial business activities. Therefore, a commercial dispute must meet three factors:
– There are conflicts of rights and obligations between the parties in a particular relationship;
– Conflicts must arise from commercial business activities;
– The conflicts arise mainly among traders.
Thus, a commercial business dispute with foreign elements is a dispute that fully meets the above factors plus foreign elements.
Under the provisions of the Civil Code, a legal relationship considered to have foreign elements when such relationship contains at least one of the following three foreign elements:
– Regarding the subject: it is the case where one of the related parties has a nationality or place of residence in a foreign country (for a legal entity, where the head office is located in a foreign country);
– On the object side: it is the case that the subject property of the relationship is abroad;
– In terms of legal events: it is the case where a legal event giving rise to, changing, or terminating the relationship occurs in a foreign country.
Procedures for settling business and commercial disputes in court
The petition file includes:
– Petition: According to Article 186 of the 2015 Civil Code, the petitioner himself or through his legal representative initiates a lawsuit (hereinafter referred to as the plaintiff) at a competent court to request protection of his/her rights and legitimate interests. The content of the petition complies with statutory requirements.
– A list of documents and evidence enclosed with the petition.
– The lawsuit petition must enclose with documents and evidence proving that the lawful rights and interests of the petitioner have infringed.
After you have fully prepared, apply to the People’s Court of the province.
According to Article 191 of the 2015 Civil Code, within 03 working days from the date of receiving the lawsuit petition, the Chief Justice of the Court shall assign a judge to consider the petition.
Within 05 working days from the date of assignment, the judge must consider the petition and make one of the following decisions:
– Request for amendment and supplementation of the petition;
– Carry out the procedures for accepting the case according to the normal procedure or according to the summary procedure if the case is eligible for settlement according to the summary procedure specified in Clause 1, Article 317 of this Code;
– Transfer the lawsuit petition to the competent Court and notify the petitioner if the case falls under the jurisdiction of another Court;
– Return the petition to the petitioner if the case is not within the jurisdiction of the Court.
After receiving the lawsuit petition and accompanying documents and evidence, if deeming that the case falls under the jurisdiction of the Court, the Judge must immediately notify the petitioner so that they can go to the Court to carry out the procedures to pay money. advance fee in case they have to pay court fee advance.
The judge only accepts the case when the petitioner submits to the Court a receipt for the collection of the court fee advance.
Within 03 working days, the judge must notify in writing the involved parties, organizations, and individuals that have interests and obligations related to the settlement of the case, and the procuracies of the same level of acceptance. case handling.
The Chief Justice of the Court shall decide to assign the Judge to settle the case, ensuring the principles of impartiality, objectivity, and randomness.
Settlement of commercial business disputes involving foreign elements at Commercial Arbitration
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Commercial business disputes involving foreign elements under the jurisdiction of commercial arbitration shall carry out according to the following steps:
Step 1: Consider the statute of limitations for initiating arbitration for dispute settlement
Under Article 33 of the 2010 Commercial Arbitration Law, unless otherwise provided for by specialized law, the statute of limitations for initiating a lawsuit according to arbitration procedures is 2 years from the time when the legitimate rights and interests of the parties violated.
Step 2: Submit a petition to request the arbitration center settle
After considering the statute of limitations for initiating lawsuits, the parties have the right to file lawsuits and send them to the Arbitration Center to request dispute settlement.
According to the provisions of Article 30 of the Law on Commercial Arbitration 2010, in case of dispute settlement at the Arbitration Center, the plaintiff must make a petition and send it to the Arbitration Center. Where a dispute is settled by ad hoc arbitration, the plaintiff must make a petition and send it to the respondent.
The petition includes the following contents:
– Date, month, and year of filing the lawsuit petition;
– Names and addresses of the parties; name and address of the witness, if any;
– Summary of the dispute;
– The basis and evidence for the lawsuit, if any;
– The specific requirements of the plaintiff and the value of the dispute;
– Name and address of the person chosen by the plaintiff to act as an arbitrator or requesting to appoint an arbitrator.
Attached to the petition, there must be an arbitration agreement, originals, or copies of relevant documents.
Unless otherwise agreed by the parties or not otherwise provided by the Arbitration Center’s procedural rules, within 10 days from the date of receipt of the petition, accompanying documents, and advance payment documents arbitration fees, the arbitration center must send to the respondent a copy of the plaintiff’s petition and documents as prescribed.
The respondent has the right to sue the plaintiff on matters related to the dispute. The defendant’s counterclaim must be sent to the Arbitration Center. In case the dispute is settled by ad hoc arbitration, the re-claim must be sent to the arbitration counsel and the plaintiff. The counterclaim must file at the same time the defense filed.
Step 3: The arbitration center establishes an arbitration council
Article 38 of the Law on Commercial Arbitration 2010 allows the parties to still have the right to negotiate and agree to terminate the dispute settlement by themselves. In case the parties can mutually agree to terminate the dispute settlement, they have the right to request the President of the arbitration center to issue a decision to suspend the dispute settlement. In case no agreement reached, an Arbitral Tribunal shall establish to settle the dispute.
Depending on the nature of the dispute, the parties agree to establish an arbitration council at an arbitration center or to establish an ad hoc arbitration council to settle the dispute.
Step 4: Open a dispute resolution session
A dispute resolution session that opened for the parties to conciliate and reach an agreement on the settlement of the dispute.
According to the provisions of Article 58 of this Law, when the parties reach an agreement on the settlement of the dispute, the arbitration council shall make a record of successful conciliation signed by the parties and certified by the arbitrators.
The arbitral tribunal shall issue a decision to recognize the agreement of the parties. This decision is final and has the same validity as an arbitral award.
Step 5: Judgment of the Arbitral Tribunal
When the parties fail to conciliate, the Arbitration Council will resolve the dispute. Dispute settlement results are shown through the arbitral tribunal’s award. According to Article 60 of the Law on Commercial Arbitration 2010, the Arbitral Tribunal shall issue an arbitral award by voting on the principle of majority.
In case the vote fails to reach a majority, the arbitral award shall make according to the opinion of the Chairman of the Arbitral Council. The arbitral award is final and takes effect from the date of its issuance.
When an arbitral award takes effect, the State encourages the parties to voluntarily enforce the arbitral award.
If the time limit for enforcement of the award expires, the party awarded the arbitral award has the right to make an application to the competent civil judgment enforcement agency to enforce the arbitral award.
Concerning an ad hoc arbitration award, the obligee has the right to make an application to the competent civil judgment enforcement agency to enforce the arbitral award after the award registered by Article 62 of this Law.
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Frequently asked questions
Case 1: In the contract, the parties agree, that when there is a dispute, it will be settled by commercial arbitration. At that time, you can file a lawsuit in commercial arbitration to request a settlement.
Case 2: In the contract, the parties agree, that when there is a dispute, it will be resolved by the Court.
Where the disputing parties have reached an arbitration agreement and one party initiates a lawsuit at the Court, the Court must refuse to accept it, unless the arbitration agreement is invalid or the arbitration agreement cannot be performed.
Judgment/Decision of a foreign court to be enforced in another country must be recognized by that other country. The Accreditation Court considers the fulfillment of the accreditation conditions but does not include a review of the facts.
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Cost: Besides, Lawyer X’s service costs are highly competitive; depending on the nature of the particular case. So, we want our guests to have the best possible service experience. Therefore, costs which guaranteed to be the most suitable and economical for customers.
Confidentiality of client information: Finally, all brand sonal information of client Lawyer X will be 100% confidential.
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