CIVIL DISPUTES AND METHODS FOR THE DISPUTES RESOLUTIONS

Every individual carries out various civil transactions every day. In practice, these transactions occur diversely and develop extremely richly, especially in the current digital age, the disputes have also become complicated. For examples: land disputes; disputes arising in apartment purchase contracts; disputes over loan contracts; disputes over donation contracts; inheritance disputes; …. Normally, when a dispute arises, the parties can negotiate for settling down the disputes amicably, but the possibilities to implement the mutual agreements done after the dispute had arisen is usually not high. Therefore, in order to save time and ensure the effectiveness of legitimate rights and interests is resolved quickly and objectively, either the parties or all parties will transfer this dispute to the competent authorities, which can be a court or arbitration.

With nearly 15 years of working with Vietnamese individuals and organizations and/or those of the related foreign countries, Lac Duy & Associates shares some experiences on the civil dispute resolution as follows:

1. Negotiation

Negotiation is a method of disputes resolution; in which, the parties to the dispute are proactive in terms of time, a number of times for meeting, discussing, getting mutual agreement on the legitimate rights and obligations in the confidentiality manner to the highest extent because there is no participation of any third party who does not have legal rights and obligations related thereto. For example, disputes related to apartment purchase contracts, ABC investors and XYZ buyers when there is a dispute about the quality of the apartment which are not in accordance with the contents as specified in the contract, the two parties directly meet to negotiate without the participation of any third buyer and /or any staff of OPQ bank where the buyer of XYZ borrows money. This bilateral negotiation allows ABC investors to offer new commitment packages (changing a better apartment for XYZ buyers and/or discounts if XYZ buyers do not have the better financial capacity to compensate for the difference) of which the commitment ABC investor will not expand to many other apartment buyers.

Now, Vietnamese law does not have a compulsory provision for the parties to conduct negotiations, except for some specific disputes in labour, land use rights disputes.

The outcome of the negotiations is executed on the goodwill basis of the parties. Vietnamese law currently shall not enforce the results of negotiations.

2. Mediation

Mediation is the alternative dispute settlement in which the parties conducting “dispute resolution negotiations” with the support of independent intermediaries, who have the knowledge, skills and experience to seek positive solutions for the parties.

Intermediary may be individual, lawyer organization, mediators.

The intermediary mediator’s comments are for reference only. The method of mediation is also chosen by the parties because of the quick procedures, the parties shall be eligible to decide, not to affect the cooperation between the parties, not to discredit the two parties.

Currently, the law on mediation is prescribed in many following different legal documents:

• Article 7 of the Civil Code 2015 (Civil Code 2015);
• Article 10 and 32 of the Civil Procedure Code 2015 (CPC 2015);
• The second part, Chapter III of the CPC 2015 provides for procedures for reconciliation and conducts trials in procedures for s resolution of cases at the first instance courts;
• The Decree No. 15/2014/ND-CP of February 27, 2014, detailing a number of things and measures to implement the Law on Reconciliation at the establishment;
• Decree No. 22/2017/ND-CP of February 24, 2017 on commercial reconciliation.

3. Initiation of the lawsuit at the competent court

When negotiations, mediations do not bring satisfying results and/or the parties to the dispute do not execute the results of negotiation/mediation, the parties to the dispute can file a lawsuit in a competent court.

According to the Civil Procedure Code 2015, competent courts are determined by case, by level and by territory as provided for in Chapter III of this Code. Particularly for disputes with foreign elements, the jurisdiction of courts shall be determined according to the international judiciary, specifically as can be seen in Section 8, Chapter XXXVIII of the Civil Procedure Code 2015, which provides general provisions on procedures for solving civil cases with foreign elements.

The People’s Court is a state agency, in the name of the Socialist Republic of Vietnam, participating in the settlement of disputes. Therefore, the parties to the dispute shall be obliged to comply with the strict provisions of the civil procedure law so that court judgments and decisions are guaranteed to be enforced by the state’s system of judgment enforcement agencies.

In fact, to handle and resolve civil cases, the Competent Court will usually take the following steps first instant, appellate and cessation, if any.

Civil disputes may go through the first instance and appellate stages (if any). After that, the disputes shall be settled according to the procedures for verification (if any) when there are grounds for protest as prescribed in Article 331 of the CPC 2015 or retrial when new details are detected and these new details change the basic contents of the judgment, court decisions as prescribed in Article 326 of the CPC 2015

Burden of proof: The parties to the dispute should note the preparation of relevant documents and evidence

4. Arbitration Selection Agreement

A commercial dispute is a civil dispute, isn’t it ? (Legal basis)

Disputes that arbitration can resolve

• Trade

• Labour (opens the hyperlink of the article on labour arbitration).

Arbitration is a private body, not a state agency. Now, the arbitration’s award and/or decision shall still be enforced if certain conditions are met

• The arbitration agreement takes effect (hyperlink to the article on the conditions for the arbitration agreement to take effect, including in the field of arbitration competent to settle (commercial disputes, rather than disputes related to marriage, inheritance…); the sign parties to the arbitration agreement shall be eligible to sign the arbitration agreement; the arbitration agreement shall be lawful (in terms of form and content);

• The enforcement of the arbitration judgment shall not violate the fundamental principles of Vietnamese law (hyperlink to the article..);

• The order and procedures for resolving disputes by arbitration do not seriously violate the arbitration award for the above reasons.