When facing a dispute in the course of commercial activities, the involved parties usually negotiate and conciliate to resolve the problem. However, in some cases, the dispute gets to its peak and the parties need to choose an appropriate competent authority to resolve the dispute. In this article, LSX legal firm provides: “Competence to settle disputes on commodity trade contract in Vietnam”
Legal grounds
- Law on Commerce 2005
- Law on Commercial Arbitration 2010
- Civil Procedure Code 2015
Competence to settle disputes on commodity trade contract in Vietnam
According to Clause 8, Article 3 of the Law on Commerce 2005, the purchase and sale of goods and contracts for commodity trading mean commercial activities, so the forms of dispute resolution governed by regulation of the Law on Commerce 2005.
Article 317. Forms of resolution of disputes
1. Negotiations between the parties.
2. Conciliation between the parties by a body, organization, or individual selected by the parties to act as the conciliation mediator.
3. Resolution by the Arbitration or the Court. Procedures for the resolution of commercial disputes by arbitration or a court shall comply with procedures applicable to arbitrations or courts provided for by law.
Thus, in addition to the methods of agreement without the intervention of other agencies, the People Courts and the Arbitral Courts have jurisdiction to settle disputes on commodity trade contract.
Besides, article 319 of this law stipulates that the statute of limitations for lawsuits applicable to commercial disputes shall be two years from the moment when the legitimate rights and interests are infringed upon, except for the case that after being complained against, traders providing logistics services are not notified of lawsuits against them being instituted at arbitrations or courts within nine months from the date of delivery of goods.
Court of Arbitration
Commercial arbitration means a mode of dispute settlement agreed upon by the parties and to be conducted under the Law on Commercial Arbitration 2010.
An arbitration agreement means an agreement between the parties to settle by arbitration a dispute which may arise or has arisen.
Venue for dispute settlement means a place in which an arbitration council settles disputes which is selected as agreed by the parties or as decided by the arbitration council if the parties have no such agreement. If a venue for dispute settlement is within the Vietnamese territory, the award must be regarded as having been pronounced in Vietnam regardless of the place in which the arbitration council holds a meeting to issue such award.
Arbitral award means the decision of the arbitration tribunal to resolve the entire dispute and terminate the arbitration proceedings.
According to Article 4 on principles for dispute resolution by arbitration, arbitrators must respect the agreement of the parties if it does not breach prohibitions and is not contrary to social morals, parties in dispute shall have equal rights as well as obligations and an arbitral award shall be final.
Conditions for dispute settlement by arbitration
- A dispute shall be settled by arbitration if the parties have an arbitration agreement. An arbitration agreement may be made either before or after a dispute arises.
- When one of the parties being an individual to an arbitration agreement dies or loses his/her act capacity, such arbitration agreement remains valid for his/her heir or representative at law, unless otherwise agreed by the parties.
- When one of the parties being an institution to an arbitration agreement has to terminate its operation, goes bankrupt, or dissolved, consolidated, merged, divided, split up, or reorganized, such arbitration agreement remains valid for an institution that takes over the rights and obligations of the institution to the such arbitration agreement, unless otherwise agreed by the parties.
Forms of arbitration agreement
Article 16 of the Law on Commercial Arbitration stipulates the forms of arbitration agreement as follows:
- An arbitration agreement may be in the form of an arbitration clause in a contract or it may be in the form of a separate agreement.
- An arbitration agreement must be in writing. The following forms of the agreement shall also be deemed to constitute a written arbitration agreement:
a) An agreement established via an exchange between the parties by telegram, fax, telex, email, or other form prescribed by law;
b) An agreement established via the exchange of written information between the parties;
c) An agreement prepared in writing by a lawyer, notary or competent organization at the request of the parties;
d) Reference by the parties during the course of a transaction to a document such as a contract, source document, company charter or other similar documents which contain an arbitration agreement
dd) Exchange of a statement of claim and defense which express the existence of an agreement proposed by one party and not denied by the other party.
People’s Court
In case the two parties do not have an arbitration agreement or have these agreements void, the arbitration agreement falls into the unenforceable cases as prescribed in Article 4 of Resolution 01/2014/NQ-HDTP guiding the implementation of a number of articles of the commercial arbitration law, the Court will have jurisdiction.
Article 30 of the Civil Procedure Code 2015 stipulates business and trade disputes falling under the courts’ jurisdiction:
- Disputes arising from business or trade activities among individuals and/or organizations with business registration, which are all for the purpose of profits.
- Disputes over intellectual property rights or technology transfers among individuals or organizations, which are all for the purposes of profits.
- Disputes between persons who are not members of a company but involve in a transaction in the transfer of capital holding and the company and/or its members.
- Disputes between a company and its members; disputes between a limited liability company and its manager or between a joint-stock company and members of its Board of Directors, its Director or its General Director, or among members of a company regarding the establishment, operation, dissolution, merge, consolidation, total division, partial division, property transfer and/or organizational transformation of the company.
- Other civil disputes relating to business or trade activities, except for cases within the jurisdiction of other agencies and organizations as prescribed by law.
Which Court has the competence to settle disputes on commodity trade contract in Vietnam?
Article 35. Jurisdiction of People’s Courts of districts
- People’s Courts of districts shall have the jurisdiction to settle according to first-instance procedures the following disputes:
b) Disputes over business/trade activities prescribed in clause 1 Article 30 of this Code;
Thus, the People’s Courts of districts have the competence to settle disputes arising from business or trade activities among individuals and/or organizations with business registration.
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Frequently asked questions
In case having foreign elements and the parties agreed on applicable laws, the arbitration tribunal apply that law to settle the dispute.
Three months from the date of delivery of goods.
Firstly, sanctions according to the provisions of law on handling of administrative violations.
Secondly, if an act of violation involves all elements constituting a crime, the competence agency shall examine violator for penal liability according to the provisions of law.
Conclusion: So the above is Competence to settle disputes on commodity trade contract in Vietnam. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
