CHAPTER 2: DISPUTE RESOLUTION MECHANISMS

A. International Judicial and Commercial Arbitration Institutions

1. Overview
- Courts (tòa án) : permanent bodies, with permanent, judicial members and fixed
processes and similar composition for each case.
2. Arbitration bodies ( trọng tài) : panels of adjudicators appointed under the
supervision of professional bodies which provide arbitration services,
International Commercial Arbitration Institutions
+ international institutions
+provide alternative dispute resolution (ADR)
+ outside the formal court structure
+ for the resolution of disputes involving international commercial agreements
+ bodies include the International Chamber of Commerce (ICC) ( phòng thương mại
quốc tế)
3. The ICC International Court of Arbitration® (ICA)
 The ICA is not a “court” in the ordinary sense. It oversees the process of
arbitration of disputes following established ICC arbitration codes
( ICA k phải là 1 tòa án thông thường. Nó giám sát quá trình phản xử tranh chấp theo
các qui tắc mà trọng tài ICC đã được thiết lập)
 Responsibilities
- confirming, appointing and replacing arbitrators, as well as deciding on any
challenges made against them;
- monitoring the arbitral process to make certain that it is performed properly and
with the required speed and efficiency necessary;
- scrutinising and approving all arbitral awards to reinforce quality and
enforceability ( xem xét kỹ lưỡng và phê duyệt tất cả các phán quyết trọng tài để
củng cố chất lượng và khả năng thi hành;)
- setting, managing and (if necessary) adjusting fees and advances;
- overseeing emergency proceedings before the start of the arbitration.
B. International Business Litigation and Arbitration
1. Overview
- Litigation – the process of bringing a lawsuit or claim in a court of law
- Alternative dispute resolution – a number of alternatives to litigation, which are
recognized domestically and internationally.
 - ADR mechanisms include negotiation ( thương thuyết) , conciliation (hòa giải) ,
and arbitration( trọng tài)
+ In negotiation/facilitation one or both parties will usually have recourse to a trained
negotiator/facilitator to present their interests in discussions leading to a resolution
which the parties themselves reach.
+ In mediation/conciliation, an impartial third party, a mediator, facilitates dealings
between the parties, moving them towards their own resolution but without imposing
a resolution on them.
+ In arbitration, the parties refer their dispute to an arbitrator or arbitrators, whose
function is to evaluate the case and impose their own resolution
2. Litigation
Advantages ( merits) Disadvantages ( drawbacks)
Availability of appeals; -Its formal, judicial, impersonal nature;
complex nature
Finality: the final decision in a case is -Differences between laws, remedies,
binding on the parties; procedures and objectives in different
countries;
The use of legal rules, principles and - The requirement for expert lawyers
precedents in the judicial system may give - Its adversarial nature (bản chất đối lập)
parties a degree of predictability. It is - Its procedural slowness
possible for the parties to estimate the likely -The expensive nature
outcome of the case and possibly agree a - Public nature
settlement.
3. Arbitration
 A set of general procedures, flexibilty, limited appeals mechanisms( cơ kháng
cáo hạn chế)
Advantages Disadvantages
 Avoidance of the complexity and  Limited rights of appeal ( hạn chế
adversarial nature of litigation; quyền kháng cáo)
 Availability of consistent  Need to turn to the courts for
international processes; enforcement ( chuyển sang tòa án để
 Co-operative, thi hành)
relatively informal nature of process;  Subjective nature of decisions ( mang
 Parties’ involvement in selecting the tính chủ quan)
rules of law and procedure, and in
appointing the arbitrators;
 Speedier and more affordable than
litigation;
  Convenience – dates can be agreed
between parties rather than
determined by a court;
 Privacy – proceedings are not open to
the public.

C. UNCITRAL Model Law on International Commercial Arbitration

1. Arbitrabal Process
- Definition: UNCITRAL Model Law is a pattern for national laws. The
international arbitral bodies follow its principles. Arbitration is consensual( đồng
thuận)
- Include: arbitration agreement , arbitral tribunal ( hội đồng trọng tài), arbitral
award ( phán quyết của trọng tài)
2. Arbitration agreement
 Application of the Model Law
- The Model Law applies where the parties to a dispute have made an “arbitration
agreement”. The agreement may be:
+ part of a wider contract , or
+ a separate “submission agreement” or “compromis” made after the dispute has
arisen, under which the parties agree to go to arbitration.
.
 Form of Arbitration Agreement
- may be in the form of:
o an arbitration clause in a contract; or
o a separate agreement.
- must be “in writing”
3. Arbitral Tribunal
 The Model Law contains a number of detailed provisions on appointment,
challenge, termination of mandate and replacement of an arbitrator. The general
approach:
( Luật mẫu bao gồm một số quy định chi tiết về việc bổ nhiệm, thách thức, chấm dứt ủy
quyền và thay thế trọng tài viên)
- recognises the freedom of the parties to determine, by reference to an existing set
of arbitration rules or by an ad hoc agreement, the procedure to be followed,
subject to the fundamental requirements of fairness and justice; and
 - where the parties have not exercised their freedom or failed to cover a particular
issue, ensures, by providing a set of suppletive rules ( qui tắc bổ sung), that the
arbitration may commence and proceed effectively until the dispute is resolved.
4. Arbitral Awards
The Model Law grants the parties the freedom to choose the applicable substantive
law, which is important where the national law does not clearly or fully recognise that
right
Summary: Matters which the Model Law encourages the parties themselves to decide,
and the arrangements which will apply if they fail

Article Matter to be decided by the Suppletive rules

parties
10 Number of arbitrators Three
11 Process for appointing Each party chooses one arbitrator; the two appointees
arbitrator(s) choose a third
12 Process for challenging an Objection must be made to the tribunal within 15 days
arbitrator’s appointment of appointment or of grounds for objection coming to
light
17 Tribunal’s right to make Tribunal has right to make interim/preliminary
interim and preliminary awards/orders if requested by party/parties
awards/orders
19 Arbitral procedure Tribunal decides
20 Place of arbitration Tribunal decides
22 Language(s) to be used in the Tribunal decides
proceedings
23 Time limit for Tribunal decides
submission/exchange of case
documents
24 Whether proceedings will be Tribunal decides
oral or written
25 Possibility of proceedings Tribunal decides
continuing if a party fails to
take part
26 Role of expert witnesses Tribunal decides
28 Applicable rules of law Tribunal decides
29 Preventing majority decisions Decisions can be by majority
30, 32 To terminate the case by The parties’ right to do this is absolute
settlement or by agreement
33 Rights and processes for Each party has 30 days following making of award to
seeking amendment of award seek correction or interpretation of award, or
additional award for matters omitted by the tribunal