SETTLEMENT OF INTERNATIONAL TRADE DISPUTES - RELATED LEGAL ISSUES NEED TO KNOW

With the current situation of international economic integration taking place more and more deeply, international trade activities tend to be complicated and international trade disputes tend to increase strongly. That requires businesses operating in Vietnam to have a certain understanding of this issue. Therefore, OTIS LAWYERS would like to provide readers with useful information on international commercial dispute settlement through the following article.

Concept and classification of international trade disputes

First, we need to understand what international trade is? International trade is generally understood as commercial activity involving two or more different countries. Based on the subject and nature of the trade relationship, international trade is divided into two main groups: International trade and International commerce.

In the course of conducting commercial activities, it is inevitable that disputes cannot be avoided. According to Black's Law Dictionary, “dispute is understood as a conflict or disagreement over claims or interests between parties; enquiry about a party's claim or interest is met by a counterclaim or argument from the other party". Thus, we understand that international trade disputes are conflicts and disagreements about rights and obligations between parties in international trade relations.

Based on the subject and object, disputes in international trade are divided into 2 types:

Public international trade dispute: An international commercial dispute between public entities about the formulation and implementation of trade policies such as import and export taxes, anti-dumping, subsidies, safeguards, etc. one or more public entity believe that another is issuing and implementing inappropriate commercial policies or failing to fulfill its committed obligations.

Private international trade dispute: An international commercial dispute between traders that occurs in many different fields such as: international goods purchase and sale, international payment, international investment... Most private international commercial disputes are related to international commercial contracts.

Subjects participating in the process of settling international trade disputes

- Public entities: important and common subjects in public international trade relations

Country, territory

International intergovernmental organizations such as WTO, EU, ASEAN, World Bank, World Bank, etc.

Traders: They are important and popular subjects in private international trade relations

Dispute Settlement Agency: As a third party that has no rights and interests related to the dispute between the parties, participating in the dispute settlement as a supporter, reviewer, and resolver of disputes arise between the parties.

Dispute resolution methods

In a nutshell, Dispute Resolution is a method and method to resolve disputes. Depending on the type of international commercial dispute, there are different methods of dispute resolution:

Resolution methods of public international trade dispute

Commonly mentioned methods include: consultation, good offices, mediation, conciliation, arbitration, dispute settlement under a separate mechanism (such as the dispute settlement mechanism of the WTO; of the EU; of the ASEAN…)

Methods of settling international commercial disputes

Consultations

Normally, we still understand consultation as a mandatory stage/step in a dispute settlement mechanism such as the dispute settlement mechanism of WTO, ASEAN... However, consultation is also known as an independent international commercial dispute settlement.

The essence of consultation is understood as the fact that the parties negotiate with each other by one side raising the issue, the request to be consulted and the other party answering the consultation, finally the parties will find out and reach an agreement. provide a solution to the dispute between the two parties. The reason why many separate dispute settlement mechanisms provide for consultation as a mandatory stage because disputants have always considered consultation as the first choice for dispute resolution.

If in the past consultation was only one of the dispute settlement methods for the parties to freely choose, today many new generation FTAs provide consultation as both an independent dispute settlement method, is both a required stage/step of these mechanisms. Even the Vietnam-US Trade Agreement 2000 stipulates that consultation is the only method of dispute settlement.

Good Offices

Good Office is a method of dispute settlement in which the intermediary assists the disputing parties to exchange, dialogue, initiate negotiations to agree on a dispute settlement solution. In the field of public international commercial disputes, the intermediary is usually a country or individual with a reputation for parties such as the Secretary-General of the United Nations, the Director-General of the WTO, the Chairman of the dispute settlement body of the United Nations. WTO (DSB)... When negotiations between the disputing parties begin, the intermediary's role is deemed to have ended.

Mediation/Conciliation

In fact, the two terms mediation and conciliation are often used interchangeably because of the great similarity between the two methods. In the mode of conciliation/mediation, the disputing parties will agree to choose a third party (mediator/mediator) to assist and advise the disputing parties in handling the differences, seeking dispute resolution.

For public international commercial disputes, the mediators/mediators are usually countries of great repute. In essence, this is a voluntary method, with the consent of the disputing parties, which can start and end at any time in the dispute settlement process of the parties.

Arbitration

Public international commercial disputes can also be resolved by arbitration. This is a method often prescribed in new generation FTAs, regional dispute settlement mechanisms and eventually in WTO rules. Arbitration is considered an effective and final settlement method that has been and is being regulated in FTAs. Arbitration is one of the recommended methods throughout the settlement process, whether under a separate mechanism developed at the regional or global level.

Methods of settling international trade disputes

Private international commercial disputes can be resolved by many different methods such as negotiation, mediation/mediation, arbitration, court. In addition to these methods, there may be other dispute resolution methods such as mini-trial or mixed methods such as mediation-arbitration (med-arb). According to the Law on International Commercial Dispute Settlement Law textbook of Hanoi Law University, the methods of resolving private international commercial disputes can be divided into two main categories:

Methods of trial in Court

This is the method by which traders will bring their disputes to the Court on behalf of the State for consideration and settlement. Judgments of the court are binding, with state power, the parties have to comply. Unlike ADR methods, court decisions can be appealed or protested against according to the civil procedure laws of countries.

The disadvantage of this method is that the resolution procedure is extremely complicated. Right from the very first step in determining the jurisdiction of the Court, a lot of conflicts can arise because the jurisdiction may belong to the Courts of many different countries. This approach also poses many challenges for both the National Courts and the disputing parties. In particular, having to participate in litigation in foreign courts, having to conduct the recognition and examination of judgments abroad with many strange things always contains a lot of risks and damages.

Alternative Dispute Resolution (ADR)

ADR- or alternative dispute resolution methods are methods chosen and agreed upon by the parties instead of going to court for trial. Includes: negotiation, conciliation/mediation and arbitration. ADR methods always promote the voluntary and proactiveness of the parties.

With the advantages and disadvantages of each method, the subjects should consider choosing based on their own financial conditions, the complexity of the dispute, the level of intimacy with the partner, etc. make the suitable choices.

If negotiation is only the settlement of disputes on the basis of private negotiation, agree to resolve the dispute with each other. Then conciliation / conciliation and arbitration will have the help of third parties. If the 3rd party in the conciliation/mediation only acts as a facilitator to help the parties come to dialogue, advise on legal issues, make recommendations, and help draft the minutes of agreement. The arbitrator is the person who considers the case and makes judgments that are obligatory by the parties.

It is the complex nature of today's international commercial disputes along with the need for information security, business secrets, and business image preservation... that today ADR methods are becoming more and more popular. found it more responsive than the court method.

OTIS LAWYERS. INTERNATIONAL TRADE DISPUTE SERVICES

OTIS LAWYERS is proud to be a unit specializing in consulting and resolving all kinds of disputes in business and commerce with high efficiency and reasonable costs. With the PACKAGE of international commercial dispute resolution service, clients will be fully trained by a team of professional lawyers to perform the following tasks:

Consult legal provisions on rights and obligations of parties in international commercial business relations;

Prepare to contact and negotiate with relevant parties in the settlement of international commercial disputes;

Exchange and guide clients to collect documents and evidence, provide information for dispute settlement

Consult clients on the advantages and disadvantages of each type of dispute resolution method, so that clients can choose the appropriate form

For the method of negotiation and conciliation: The lawyer will organize the negotiation and conciliation of the parties in the commercial dispute relationship, and at the same time conduct the negotiation and conciliation on behalf of the client.

For Arbitration and Court method: An authorized representative lawyer meets, exchanges and works with Arbitration agencies and Courts in order to best protect the interests of clients.

We hope that the above information will help you to solve the problems and difficulties you are facing. If you want to receive quick and timely legal support in the field of international trade dispute resolution and wish to schedule an appointment with a trade dispute resolution lawyer of OTIS LAWYERS, Please contact us immediately at:

OTIS AND PARTNERS LAW FIRM

Office address: K28 - Group K, Lane 68 Trung Kinh, Yen Hoa Ward, Cau Giay District, Hanoi

Email: [email protected]

Hotline: 0987748111 Website: https://otislawyers.vn/