How Does the ASEAN Dispute Resolution Mechanism Work?

How Does the ASEAN Dispute Resolution Mechanism Work?

Having an efficient means of resolving disagreements that arise between member nations has become an essential requirement as economic cooperation has grown. As a result, ASEAN has been working on a Protocol on a Dispute Settlement Mechanism since 1996. On November 20, 1996, ASEAN Economic Ministers signed the Protocol in Manila (Philippines).

Dispute Settlement Mechanism of ASEAN

The spirit of negotiation and mediation is the foundation of ASEAN's dispute resolution system. Parties to the dispute in Member States have the option to select mediation methods at any time. These structures might start or end out of the blue. The complainant took the matter to the Senior Economic Officials Meeting of ASEAN (SEOM) only after the mediation process had ended. Mediation procedures will continue to apply while the dispute is ongoing if the parties to it agree.

The matter will be referred to SEOM if the consultation does not resolve the dispute within sixty (60) days of receipt. SEOM will either form a panel or, if that is not possible, send the matter to the special rules and procedures team or another group for evaluation. However, in some instances, SEOM may decide to settle the dispute without appointing a panel if deemed necessary.

Within thirty (30) days of the panel's submission of the report, SEOM will evaluate it during its discussion and make a decision regarding the dispute. SEOM may have an additional ten (10) days to resolve a dispute in exceptional circumstances. Parties to the dispute may be represented by SEOM representatives at the meeting, but they may not vote on SEOM decisions. SEOM will decide by majority vote.

Within thirty (30) days, parties to the dispute may appeal the SEOM's decisions to the ASEAN Economic Ministers (AEM). Within thirty (30) days of receiving the appeal, AEM must issue a decision. AEM may have an additional ten (10) days to resolve the dispute in exceptional circumstances.

ANT Lawyers have Litigation and Dispute lawyers in Hanoi, Da Nang and Ho Chi Minh City that help clients dealing with dispute resolution and alternative dispute resolution in Vietnam.

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How Really does Debate Settlement System of WTO Work

How Really does Debate Settlement System of WTO Work?

The dispute settlement procedures used by the World Trade Organization (WTO) are based on the GATT 1947 dispute settlement rules, which have been in place for nearly 50 years. Finding a positive solution to the dispute is the fundamental goal of this dispute resolution method. Because Vietnam is a member of the World Trade Organization, it may use the WTO's dispute settlement mechanism in disputes with other WTO members.

The parties to a dispute at the World Trade Organization (WTO) will first hold consultations to come up with a mutually agreed-upon solution to the dispute (Consultation – the stage of mediation). Third parties, who are members with a significant interest and desire to participate in the dispute resolution process, may participate in each case if they feel they have a significant interest in the case and should be considered by the panel. On account of a fruitless request, a board of 3 to 5 individuals will be laid out and entrusted with looking at a specific issue in debate based on WTO rules refered to by the petitioner's country.

According to Article 12.3 of the DSU, the first thing a panel to review the complaint must do is establish a timetable for its proceedings. The contents of Article 12 and Annex 3 of the DSU are typically covered by the panel procedure, which allows for some flexibility to guarantee the quality of the report without delaying the proceedings. The parties can be more proactive in presenting evidence, bases, and arguments in their submitted documents by understanding the contents and deadlines of a timetable.

The panel will enter the internal discussion phase (deliberation) following the hearings to evaluate the assessment of relevant legal and practical issues in accordance with WTO regulations. The deliberation must be kept secret. The parties to the dispute were not present when these reports were written; rather, they were written based solely on the information that was provided and the remarks that were made earlier. Individual assessments of hearers introduced in a board report will exclude the names of speakers of such sentiments.

Within two weeks of the panel's conclusion of the mid-term review, the final report will be sent to the dispute parties. Regularly, every report of the board has extremely huge substance, to work with the investigation of audit by the redrafting body and to cite case regulation, the report should show the chapter by chapter list and sections which are discrete numbered in the request for the report. After the DSB adopts a panel report, the dispute resolution process will immediately proceed to the implementation stage if there is no appeal. The case will be reviewed at the appellate level if there is an appeal.

As a member of the World Trade Organization, Vietnam must be well-versed in the dispute resolution process and fully prepared for disputes with other WTO members in international trade disputes.

ANT Lawyers have Litigation and Dispute lawyers in Hanoi, Da Nang and Ho Chi Minh City that help clients dealing with dispute resolution and alternative dispute resolution in Vietnam.

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Forms of Disputes and Methods of Resolution in Vietnam

Forms of Disputes and Methods of Resolution in Vietnam

Dispute in Vietnam could arise between parties to a business transaction, such as the government of Vietnam and foreign investors, or between nations implementing international treaties.

Vietnam's market economy developed in tandem with a significant increase in the breadth and depth of its economic ties, which have made Vietnam an important component of the global supply chain. Vietnam providers could offer the labor and products to the world and the unfamiliar provider could likewise trade their labor and products to Vietnam market. Further, as the Vietnam market opens up, unfamiliar financial backers could put through different types of interests in Vietnam for example gain values in Vietnam organizations, lay out business inVietnam. Disputes that have grown in size and complexity during this process are an inevitable outcome.

The majority of people should agree that disagreements should be interpreted as disagreements, inconsistencies, or conflicts of interests, rights, and responsibilities between parties in economic relations at various levels. Accordingly, economic disputes can have the following basic forms:

-Disputes in business are between the participants in a business transaction including investments, production to consumption of products or performance of services on the market for profit purposes i.e. professional and product liability, debt disputes over a business transaction, franchise disputes, intellectual property disputes, and disputes over contract for supply of goods or services…

-Disputes between foreign investors with Vietnam government agencies, arising in the implementation of the BTO, BT, BOT, and the implementation of international agreements on promotion and protection bilateral and multilateral investment i.e. government policy and policy measures, concession to water and sewerage, power or energy supply, project or contract payment…

-Disputes between countries in the implementation of the international bilateral and multilateral agreements.

After taking into account a variety of factors, including cost, time, and the complexity of the disputes, the parties involved in disputes in Vietnam may consider resolving the issues through negotiation, mediation, arbitration, or litigation. In Vietnam, a litigation law firm with skilled dispute lawyers in Hanoi, Danang and Ho Chi Minh City should be consulted for appropriate dispute resolution advice.

 

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Forms of Disputes and Methods of Resolution in Vietnam

Forms of Disputes and Methods of Resolution in Vietnam

Dispute in Vietnam could arise between parties to a business transaction, such as the government of Vietnam and foreign investors, or between nations implementing international treaties.

Vietnam's market economy developed in tandem with a significant increase in the breadth and depth of its economic ties, which have made Vietnam an important component of the global supply chain. Vietnam providers could offer the labor and products to the world and the unfamiliar provider could likewise trade their labor and products to Vietnam market. Further, as the Vietnam market opens up, unfamiliar financial backers could put through different types of interests in Vietnam for example gain values in Vietnam organizations, lay out business inVietnam. Disputes that have grown in size and complexity during this process are an inevitable outcome.

The majority of people should agree that disagreements should be interpreted as disagreements, inconsistencies, or conflicts of interests, rights, and responsibilities between parties in economic relations at various levels. Accordingly, economic disputes can have the following basic forms:

-Disputes in business are between the participants in a business transaction including investments, production to consumption of products or performance of services on the market for profit purposes i.e. professional and product liability, debt disputes over a business transaction, franchise disputes, intellectual property disputes, and disputes over contract for supply of goods or services…

-Disputes between foreign investors with Vietnam government agencies, arising in the implementation of the BTO, BT, BOT, and the implementation of international agreements on promotion and protection bilateral and multilateral investment i.e. government policy and policy measures, concession to water and sewerage, power or energy supply, project or contract payment…

-Disputes between countries in the implementation of the international bilateral and multilateral agreements.

After taking into account a variety of factors, including cost, time, and the complexity of the disputes, the parties involved in disputes in Vietnam may consider resolving the issues through negotiation, mediation, arbitration, or litigation. In Vietnam, a litigation law firm with skilled dispute lawyers in Hanoi, Danang and Ho Chi Minh City should be consulted for appropriate dispute resolution advice.

 

 

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Methods of Dispute Settlement in International Trade

Methods of Dispute Settlement in International Trade

When drafting international contracts in international trade, the parties typically pay little attention to the terms of dispute resolution and instead focus more on payment and expense terms. As a result, both parties ought to be aware that disagreements and disagreements can occur at any time. As a result, the parties to an international economic agreement ought to pay attention to the provisions regarding the various options for resolving disagreements in the event of one. There are currently four methods of dispute settlement in international trade: negotiation, mediation commercial arbitration, and court.

Negotiation

In international dispute resolution, negotiation is typically used as a method of resolution. Particularly, the parties talk together, fight, come to an agreement, and settle the dispute. The dispute may or may not be resolved as a result of the negotiation. There are two methods used in negotiations: The two parties meet in person to discuss and negotiate, or one party submits a complaint to the other and the other responds.

Mediation

Mediation is a process in which a neutral third party helps the disputing parties reach an agreement. There are two methods for mediating: One is that the parties are in agreement regarding mediation, that the mediator will be chosen, and that the mediation will be conducted without following any mediation rules. The subsequent way is that the gatherings consent to direct the intervention under rules of an expert association or one explicit discretion establishment, for example, intercession rules of the Worldwide Office of Trade (ICC).

Commercial arbitration

Arbitration is a method for resolving disputes arising from trade activities that parties agree upon and are carried out in accordance with the order and procedures. Currently, there are several types of arbitration, including: permanent arbitration and ad hoc arbitration.

Court

The three above methods of dispute resolution are voluntary. They are distinct from dispute resolution in accordance with court procedures. Disputes should be resolved through the efforts of state tribunals, not by court settlement. As a result, litigants in the dispute are frequently viewed as the ultimate means of safeguarding their legitimate interests. In particular, parties will choose trade negotiation or mediation over commercial arbitration or court when there is a conflict.

ANT Lawyers, a Vietnam-based law firm, regularly informs clients about the status of dispute resolution in international trade cases. We have dispute lawyers in Hanoi, Da Nang and Ho Chi Minh City with qualification and experience to assist client to resolve dispute in Vietnam.

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How to Determine Interest Rate for Late Payment Obligations in Commercial Transaction?

The most important obligation of the parties to a commercial contract is to deliver or provide services and pay in full and on time as agreed. However, in reality, there are times that one party or the parties fail to perform their payment obligations, causing damages to the other party. In particular, in the case of a breach of the payment obligation, the aggrieved party may request the person having caused damage to pay late payment obligations interest. Potential dispute on this matter might arise between parties.

 How to Determine Interest Rate for Late Payment Obligations in Commercial Transaction?

Article 306 of the Commercial Law 2005 provides for the application of the interest rate due to the delay of payment as follows: Where a contract-breaching party delays making payment for goods or payment of service charges and other reasonable fees, the aggrieved party may claim an interest on such delayed payment at the average interest rate applicable to overdue debts in the market at the time of payment for the delayed period, unless otherwise agreed or provided for by law.

The interest rate for late payment of obligations in commercial business is applied according to the average interest rate on overdue debts in the market at the time of payment corresponding to the late payment period, unless otherwise agreed or otherwise provided by law.

However, the Commercial Law 2005 at that time did not have a specific regulation on the average interest rate of overdue debts on the market. The Resolution No. 01/2019/NQ-HDTP has detailed instructions on this interest rate. When determining the interest on late payments, the Court shall determine the interest rate on late payments on the basis of average interest rates on overdue debts announced by at least 03 (three) commercial banks (such as Vietcombank, VietinBank, Agribank, etc.) whose headquarters, branch or transaction office is located in the same province or central-affiliated city where the headquarters of the Court in charge of the case is located at the payment date (the date of first-instance trial), except otherwise agreed upon by the parties or regulated by laws.

In case of late payment liabilities defined in a contract which includes the parties’ agreement on interest payment, the judgment debtor is liable to pay interest on the outstanding judgment debt at the agreed interest rate which must be conformable with applicable laws; if the agreed interest rate is not available, the Court shall decide application of the interest rate prescribed in Clause 2 Article 468 of the 2015 Civil Code. In case interests are charged on amounts payable to the state budget as regulated by laws, the judgment debtor is liable to pay an interest on the judgment debt arrears calculated at the interest rate prescribed in Article 357 or Article 468 of the 2015 Civil Code, unless otherwise prescribed by laws.

In order to protect the best interest of parties, it is important to consult with dispute lawyers in Vietnam for advice.

ANT Lawyers - English speaking law firm in Vietnam, recognized by Legal500, IFLR1000. We are an exclusive Vietnam member of Prea Legal, the global law firm network covering more than 150 jurisdictions. The firm provides a range of legal services to multinational and domestic clients.

Source ANTLawyers: https://antlawyers.vn/library/how-to-determine-interest-rate-for-late-payment-obligations-in-commercial-transaction.html

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How to Distinguish between Deposit and Advance Payment?

In commercial transactions, it is very common for one party to give the other party an amount of money before the contract being performed. Should this amount be considered as deposit or advance payment?

How to Distinguish between Deposit and Advance Payment

 Deposit is one of security measures for the performance of contract obligations. According to regulation of Civil Code 2015, deposit is an act whereby one party (hereinafter referred to as the depositor) gives to other party (hereinafter referred to as the depositary) a sum of money or precious metals, gemstones or other valuable things (hereinafter referred to as the deposited property) for a period of time as security for the entering into or performance of a contract.

Upon a contract being entered into or performed, any deposited property shall be returned to the depositor, or deducted from the amount of payment obligation. If the depositor refuses to enter into or perform the contract, the deposited property shall belong to the depositary. In case the depositary refuses to enter into or perform the contract, the depositary must return the deposited property and pay an amount equivalent to the value of the deposited property to the depositor, unless otherwise agreed.

It can be seen that the purpose of deposit is to ensure the entering into or performance of a contract. Due to the fact that its nature is a security measure for the performance of contract obligations, sanction is set in regulation of deposit in case one party refuses to perform the agreement.

In practice, the advance payment can be understood that the obligor pays the obligee a sum of money in advance and this amount is regarded as in-advance performance of a payment obligation. As the nature of the advance is not a security measure for the performance of contract obligations, there is no fine rising from the advance if one party refuses to perform the agreement. Further, when a contracting party gives to the other party a sum of money, which is not clearly identified by the parties as a deposit or an advance, such amount shall be considered an advance payment.

It is important to distinguish the difference between deposit and advance payment to avoid potential disputes in performance the contract or consult with dispute resolution lawyers in Vietnam at early stage of the dispute for proper actions.

ANT Lawyers, as a reliable law firm in Vietnam, we focus on providing possible solutions that best meet the needs of legal and business clients. We help customers achieve their goals while protecting their interests, minimizing risks, and complying with the law.

Source ANTLawyers: https://antlawyers.vn/library/how-to-distinguish-between-deposit-and-advance-payment.html

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What is Statute of Limitation for Initiating Legal Action According to Arbitral Procedures?

 

Arbitration law always set the the limitation period for request of dispute resolution. This means that the law applies a specific period for parties to bring the dispute to the arbitration. According to law on arbitration 2010 (“LOA”), unless otherwise provided by specialized law, limitation period for initiating legal action according to arbitral procedures is two years from the time of infringement of lawful rights and interests.

There is no regulation in arbitration law regarding consequence of expiration of limitation period, but Civil Code 2015 (“CC”) stipulates that: “if such time limits expire, the right to initiate such legal action shall be lost”. Arbitration council shall not resolve expired requests, which means council shall not judge which parties is right or wrong. Therefore, enterprise needs to request within the statutory time limits in order to be resolved. If not, the request shall not be considered although there was request and related fees. In addition, it should be noted that the Court only applies time limits regulation at the request of a party or the parties provided that such request is filed before the first trial court of first instance makes a judgment, a decision on settlement.

However, there has been cases of non-applicability of limitation periods. Specifically, a limitation period for initiating legal action for a civil case shall not apply in any of the following cases: (i) Request for the protection of personal rights not associated with property; (ii) Request for the protection of ownership rights, unless otherwise provided by Civil Code or relevant laws; (iii) Dispute over land use right as prescribed in the Law on land; (iv) Other cases as provided by law. For instance, dispute over reclaiming deposited property is under case of non-applicability of limitation periods. Specifically, deposited property still belongs to ownership of depositor although the property had been transferred to depositary and reclaiming property is a measure protecting the right of property ownership, while dispute over the protection of ownership rights is under case of non-applicability of limitation periods.

In practice, the time between the time period of filing a lawsuit and the time period of infringement of lawful rights and interests can be longer than two years if there is time periods excluded from limitation periods for initiating legal action or there is re-commencement of limitation period for initiating legal action.

The time period during which one of the following events occurs shall be excluded from limitation periods for initiating legal action: (i) An event of force majeure or other objective hindrance which renders the person with the right to initiate legal action for a civil case or make the request not able to do so within the limitation period; (ii) The person with the right to initiate legal action for a civil case or to make the request is a minor or a legally incapacitated person, a person with limited cognition and behavior control or a person with limited legal capacity, and does not yet have a representative; (iii) The representative of a minor or a legally incapacitated person, a person with limited cognition and behavior control or a person with limited legal capacity has not yet been replaced in case that the representative being natural person dies or the representative being juridical person ceases to exist or in case that the representative, for good reasons, cannot continue his/her representation.

The limitation period for initiating legal action shall re-commence in any of the following cases: (i) The obligor has acknowledged part or all of its obligations to the plaintiff; (ii) The obligor has acknowledged or fulfilled part of its obligations to the plaintiff; (iii) The parties have become reconciled. The limitation period for initiating legal action for a civil case shall re-commence from the date following the date on which the above event occurs. Having said that, it is important to consult with dispute lawyers in Vietnam for the effective dispute resolutions should dispute arise.

Arbitration lawyers at ANT Lawyers - Law firm in Vietnam with accreditation in national and international arbitration practice could help providing legal advice in disputed matters, and guide the clients throughout the process. The arbitration lawyers in Vietnam could also advise the clients on various matters from choice of arbitrator, choice of arbitration rules, ad-hoc or institutional arbitration, place of arbitration, enforcement of arbitral award.

Source ANTLawyers: https://antlawyers.vn/library/what-is-statute-of-limitation-for-initiating-legal-action-according-to-arbitral-procedures.html

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Contract Dispute in Vietnam

Disputes occur during contract performance are beyond the control of the entity entering contractual relations. In developed countries, lawyers always invited to advise customers to identify potential disputes, and provide solutions, support and provide legal advice and to accompany the enterprises solve disputes in accordance with the provisions of the law, which help businesses to focus on its business activities. The contract should be carefully reviewed by lawyers. Foreign companies when entering Vietnam mostly follow suit to engage dispute or litigation dispute lawyers in Vietnam at early stage of the transactions. 

Contract negotiation law firm in Vietnam

Contract Dispute

Contractual disputes in Vietnam shall be construed as conflicts, disagreements, conflicts between the parties regarding the implementation or non-implementation of rights and obligations in the contract. Disputes could arise in failure to collect the payment from debtor in sales agreement, construction contract disputes between investor and contractor, labour dispute between employer and employee, insurance disputes between ship owner and insurance company.

Contract disputes must satisfy the following factors:

First, there is a contract between the parties. The contract would be in different for ms therefore, there is a need to clearly define if the contractual relationship has been formed or not.

Second, there is a breach of obligations or duties that are in violation of a party in the contractual relationship.

Third, there is disagreement between the parties about the handling of infringement or the consequences of such violations.

It should be noted, the contract disputes arise from the breach. However, not all breaches of contract also lead to disputes.

How to settle the contract disputes in Vietnam?

Contractual disputes can be resolved by the following methods:

Negotiation is the process or behavior in which the two sides conduct exchanges, agreement on common interests and characteristics of disagreement and come to a unified agreement. The negotiation is without the presence of third parties. However, if the contract dispute lawyers in Vietnam would be involved during the negotiation process, at the role of representing or advising, counseling, then the negotiations tend to be more effective and parties would reach agreement.

Mediation is one of the options for disputing parties to end the conflict. Mediation is different from negotiating with the intervention of a third party. Mediator will help parties to achieve agreement and resolve conflict.

Court or arbitration: The settlement of the dispute in court would take time. The court’s ruling can be appealed. It should be noted that, per Vietnam laws, only Vietnam litigation or dispute law firms could represent the client at court. Commercial arbitration is available only in commercial-business sector. The advantage of this method is fast and efficient. However, compare with disputing at court, this method of handling dispute would take higher costs.

Disputes and dispute resolution matters are natural and inevitable in any countries including Vietnam. It is important that parties involved need to identify, anticipate disputes can occur. Contract or agreement should be reviewed by lawyers. When there is a dispute, the dispute lawyers in Vietnam will be able to help parties to with advice to reasonable solution to address the disputes effectively.

ANT Lawyers have litigation  and dispute  lawyers in Ho Chi Minh City, Hanoi and Da Nang cities that help clients dealing with dispute resolution and alternative dispute resolution in Vietnam.

Source ANTLawyers: https://antlawyers.vn/library/contract-dispute-in-vietnam.html 

 

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Dispute between Foreign Investor and Host State in Vietnam

What Need to Know About Dispute between Foreign Investor and Host State?

In the globalization and international integration in general as well as economic integration in particular, foreign investment including foreign direct investment (FDI) and indirect foreign investment in countries are increasing significant. This trend also comes along with the growth of international investment dispute between foreign investor and host state (or related state agencies). This dispute is often complex with huge amount of compensation demanded by the investor.

Subjects of this dispute include foreign investor (plaintiff) and host state or related state agencies (defendant). In particular, Vietnam laws stipulate that foreign investor means an individual holding a foreign nationality or an organization established under foreign laws an making business investment in Vietnam. The second subject is state, a “special” subject because this subject is the beneficiary of “jurisdictional immunity”. Specifically, jurisdictional immunity is a right of a state which do not be judged by any international or national jurisdiction without the consent of such state.

Subjects of this dispute include foreign investor (plaintiff) and host state or related state agencies (defendant). In particular, Vietnam laws stipulate that foreign investor means an individual holding a foreign nationality or an organization established under foreign laws an making business investment in Vietnam. The second subject is state, a “special” subject because this subject is the beneficiary of “jurisdictional immunity”. Specifically, jurisdictional immunity is a right of a state which do not be judged by any international or national jurisdiction without the consent of such state.

This dispute shall relate to the investment of foreign investor in host state according to regulation of (i) investment law of host state; (ii) treaty of promotion and protection of investment (bilateral investment treaty – BIT) or investment chapter in bilateral/regional trade agreements; or (iii) contract relating to investment of foreign investor and competent state agencies.

To promote foreign investment and to protect investors, countries around the world as well as Vietnam have signed and will sign bilateral agreements on promotion and protection of investment (BIT), agreement between countries on promotion and protection of investment (international investment agreement – IIA), free trade agreement (FTA) having investment chapter. Accordingly, investor holding the nationality of a signatory to investment agreement (chapter) is entitled to have full protection and security, fair and equitable treatment, non-discrimination, no expropriation… of investment according to regulation of such investment agreement (chapter) in host state. Besides, to ensure that dispute between foreign investor and host state will be fairly and properly settled and to prevent the case of refering to jurisdictional immunity to avoid being sued, there are provisions on dispute settlement mechanisms between foreign investor and host state in most of these agreements.

Through investment agreement (chapter), the host state abandons its right of jurisdictional immunity to be sued and judged at competent jurisdiction. If the host state violates and harms the foreign investor, such country shall compensate according to judgement of that jurisdiction. Jurisdictions being competent to resolve disputes between foreign investor and host state may be arbitration, court of the host state; international arbitration; or other jurisdictions by agreement between the parties.

Behaviours which state violates commitment on investment protection may be very broad, including: (i) expropriation such as: requisition or nationalization without compensation; “indirect” requisition or “according to regulation” without reasonable compensation; (ii) no fair and equitable treatment; (iii) no full protection and security; (iv) there is discrimination such as violation of most favoured nation and national treatment; (v) and/or other violations such as: legal obligation/commitment, right of withdrawing investment and interest, compensation due to war or riot.

Dispute resolution process between foreign investor and host state usually takes place with three stages, including (i) conflict management stage means carrying out resolving complaints and consultation, mediation; (ii) dispute resolution stage; and (iii) implementation stage. In above process, consulting with international trade dispute lawyers in Vietnam to for resolution of international investment disputes is a very important and necessary.

Law firm in Vietnam with Litigation and Dispute lawyers in Ho Chi Minh City, Hanoi and Da Nang cities that help clients dealing with dispute resolution and alternative dispute resolution in Vietnam. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

Source ANTLawyers: https://antlawyers.vn/update/what-need-to-know-about-dispute-between-foreign-investor-and-host-state.html 

 

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