On the afternoon of 11 January 2024 in Hanoi, the Vietnam International Arbitration Centre (VIAC) and the Inter-Pacific Bar Association (IBPA) co-hosted the Seminar on Dispute resolution strategies for enterprises in the Asia-Pacific region: International arbitration and alternative dispute resolutions.
The seminar aimed to provide a forum for information exchange, discussion, and updates on developments in international arbitration and other alternative dispute resolution (ADR) methods within the region and specific jurisdictions. The seminar was attended by 11 speakers, all of whom are well-respected and experienced lawyers from Vietnam, Japan, and Singapore. The seminar also had the presence of nearly 100 participants, including lawyers, legal experts, representatives from educational institutions, and media units in Hanoi.
Mr. Vu Anh Duong - Permanent Vice President cum Secretary General of the Vietnam International Arbitration Centre VIAC
In his opening speech, Mr. Vu Anh Duong, Permanent Vice President cum Secretary General of VIAC - shared that the landscape of dispute resolution in Asia and in Vietnam have been evolving consistently, and the role of arbitration and mediation in providing effective and efficient solutions has never been more critical, particularly throughout the global and regional economic fluctuations. He also noted that Vietnam has become an increasingly attractive destination for foreign businesses and investors. As we witness the continued integration of economies, the demand for robust and transparent dispute resolution mechanisms has also grown.
Sharing his thought on the collaboration with international partners through joint events, Mr. Vu Anh Duong affirmed that the seminar today was aimed to provide a forum for lawyers, arbitrators, and users of arbitration to discuss how international ADRs can be part of a strategic approach for enterprises and investors when participating in Vietnam.
Ms. Diep Hoang – representative of Vietnam at the Asia-Pacific Bar Association (IPBA)
Ms. Diep Hoang – Partner at the Dilinh Law Firm, representative of Vietnam at the Asia-Pacific Bar Association (IPBA) – had a brief introduction about IPBA. She shared that IPBA is an association for business and commercial lawyers with over 1,500 members from over 65 countries and territories around the world. As a commitment to achieving its core objectives, IPBA was honored to collaborate with VIAC to organise this event. This is an effort by IPBA to connect with the legal community in Vietnam as well as open a special forum for exchanging experiences and knowledge on the practice of dispute resolution in the Asia-Pacific region and specific jurisdictions.
Mr. Tezuka Hiroyuki - Director of the Japan International Mediation Center (JIMC-Kyoto), partner of Nishimura & Asahi
In his presentation, Mr. Tezuka Hiroyuki - Director of the Japan International Mediation Center (JIMC-Kyoto), partner at Nishimura & Asahi - cited the results of a survey conducted within a number of arbitration centers in Asia. In 2022, these centers all received hundreds of new cases, and two arbitration centers in Asia were ranked in the top 3 most popular arbitration centers in the world.
“This illustrates the rapid development of arbitration centers in Asia, confirming the effectiveness of commercial arbitration. With its advantages such as confidentiality, flexibility, and enforceability etc., businesses are becoming more interested in commercial arbitration. In addition, commercial mediation method is also becoming more and more popular, after the Singapore Convention on Mediation was adopted 20 December 2018 and opened for signature on 7 August 2019…” – Mr. Tezuka Hiroyuki shared.
Mr. Nguyen Manh Dung - Deputy Director of the Vietnam Institute of International Arbitration Research and Training (VIART), a division of VIAC, Arbitrator of VIAC
Citing a report from the Ministry of Planning and Investment, Mr. Nguyen Manh Dzung - Deputy Director of the Vietnam Institute of International Arbitration Research and Training (VIART), a division of VIAC, VIAC’s Listed Arbitrator of VIAC – stated that many countries whose Foreign Direct Investment (FDI) registered in Vietnam are located within the region, such as Singapore, Japan, and South Korea.
In this context, ADR in Vietnam has also seen positive changes. The data from the Ministry of Justice illustrates that there are 1,000 arbitrators in Vietnam, working at 45 arbitration centers nationwide, as well as 100 mediators affiliated with 17 mediation centers. In 2023, VIAC had received over 400 new cases, with the largest dispute value reaching 270 million USD.
"This achievement cannot be accomplished without the support from state agencies, including the draft amendment to the Law on Commercial Arbitration 2010 with many changes to increasingly meet international standards; the support of the Court system..." - Mr. Dzung emphasized.
According to Mr. Dzung, with these positive developments, ADR in Vietnam still has great potential for development, such as the combination of mediation and arbitration in the Arb-Med-Arb protocol being implemented at VIAC and VMC; the development of different dispute resolution methods for specific sectors, such as the Dispute Adjudication Board (DAB) in construction disputes. At the end of his presentation, Mr. Dzung had proposed some recommendations to improve the legal framework, towards the goal of developing ADR in Vietnam.
In the 2nd session of the seminar, the speakers focused on discussing the topic of "Arbitration & ADRs in Cross - border Investment through M&A and Infrastructure projects". In other countries in the region such as Japan, China, Singapore, etc., M&A is a vibrant market with large transaction values. In the field of cross-border infrastructure projects, legal regulations and contract clauses have undergone many changes after the COVID-19 pandemic. Specifically, regulations on sustainable development goals (SDGs) have received much attention, including regulations on environmental protection, public health, and elimination of forced labor...
Contracts are now formed on the basis of cooperation, aiming at the common interests of the parties instead of the individual interests of each contracting party as before. In addition, parties have also taken more notice of the force majeure clause in the process of drafting and concluding contracts.
According to the speakers, typical disputes drivers in post-M&A deals often relate to a number of issues, such as: Representation & warranties in Share Purchase Agreements (SPAs), Liability caps, Earn-out and price-adjustment mechanisms in case of unforeseen market disruptions...
Mr. Nguyen Nam Trung - President of the Society of construction law (SCLVN)
Mr. Nguyen Nam Trung – the President of the Society of construction law (SCLVN), FIDIC Arbitrator – had a presentation on the application of the Dispute board in the contruction sector of Vietnam. Notably, according to the results of a survey from the 2021 Construction Dispute Resolution Report, the dispute resolution mechanism through the Dispute Board accounted for 7.9%, compared to that of Negotiation and Litigation – accounting for 80.7% and 29.5% respectively. Mr. Trung also raised some challenges to the application of the mechanism, mainly related to the lack of legal regulations on the settlement of construction contract disputes through Dispute Board within the Vietnam legal framework. Concluding his presentation, Mr. Trung proposed some solutions to enhance the effectiveness of the application of the mechanism in resolving construction disputes in Vietnam in the future.
Mr. Phan Trong Dat – Acting Dỉrector of Vietnam Mediation Centre (VMC), a division of VIAC
According to Mr. Phan Trong Dat – Acting Dỉrector of Vietnam Mediation Centre (VMC), a division of VIAC, businesses have the tendency to incorporate multi-tier dispute resolution clause in contracts. Therefore, many arbitration centers have diversified their services to meet those needs.
"That is the main resason for VIAC and VMC to research and develop two combined services, including the Mediation-Arbitration (Med-Arb) Combo and the Arbitration-Mediation-Arbitration (Arb-Med-Arb) Protocol. These services are characterized by a cooperation mechanism between VIAC and VMC in which the arbitration and mediation proceedings are conducted independently and simultaniously. With advantages in terms of results, costs, and time, VMC expects these combined products to meet the needs of businesses in the coming time ..." – Mr. Phan Trong Dat shared.
At the end of the Seminar, a Q&A session was conducted between experts and participants. The discussions focused on the goal of further developing ADR in Vietnam through identifying and resolving the difficulties and limitations in the practical application of arbitration and ADR methods in resolving disputes, especially international ones. Many participants proposed that the legal systembe improved to be more stringent comparing to international standards, with the main goal of improving and modernizing the legal systemto create a comprehensive and internationally compatible legal framework. These improvements may include amending, supplementing the legislation in order to create a more favorable legal environment for resolving cross-border disputes.
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