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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
22/2017/ND-CP
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Hanoi,
February 24, 2017
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DECREE
ON COMMERCIAL MEDIATION[1]
Pursuant to the June 19, 2015
Law on Organization of the Government;
Pursuant to the June 14, 2005
Commercial Law;
At the proposal of the
Minister of Justice;
The Government promulgates
the Decree on commercial mediation.
Chapter I
GENERAL PROVISIONS
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1. This Decree prescribes the
scope, principles, order and procedures for dispute resolution by commercial
mediation, commercial mediators, commercial mediation institutions,
Vietnam-based foreign commercial mediation institutions, and state management
of commercial mediation activities.
Disputing parties’
self-mediation or request for mediation by other agencies, organizations or
individuals other than commercial mediators, commercial mediation institutions
or Vietnam-based foreign commercial mediation institutions defined in this
Decree may be carried out under the agreements of the parties in accordance
with law, and are not regulated by this Decree.
2. This Decree applies to
commercial mediators, commercial mediation institutions, Vietnam-based foreign
commercial mediation institutions, the state management agency in charge of
commercial mediation, and other organizations and individuals involved in
commercial mediation activities.
Article 2. Disputes to be
resolved through commercial mediation
1.
Disputes arising from commercial activities.
2.
Disputes between parties at least one of them is engaged in commercial
activities.
3.
Other disputes which are prescribed by law to be resolved through commercial
mediation.
Article 3. Interpretation of
terms
1. Commercial
mediation means a method of resolving commercial disputes agreed upon by
involved parties with the assistance of a commercial mediator acting as an
intermediary in accordance with this Decree.
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3. Commercial
mediator may be an ad hoc commercial mediator or a commercial
mediator of a commercial mediation institution who is selected by involved
parties or appointed by a commercial mediation institution at the request of
involved parties to assist them in dispute resolution in accordance with this
Decree.
4. Successful
mediation result means an agreement reached by disputing parties on the
resolution of part or the whole of an arising dispute.
5. Institutional
commercial mediation means a form of dispute resolution at a commercial
mediation institution in accordance with this Decree and the Mediation Rule of
such institution.
6. Ad
hoc commercial mediation means a form of dispute resolution conducted by an
ad hoc commercial mediator selected by involved parties in accordance
with this Decree and the agreement of the parties.
Article 4. Principles of dispute
resolution through commercial mediation
1.
Disputing parties shall participate in mediation on an entirely voluntary basis
and are equal in terms of rights and obligations.
2.
Information relating to a mediation case shall be kept confidential, unless
otherwise agreed upon in writing by involved parties or otherwise prescribed by
law.
3.
Mediation agreement contents must neither violate prohibitory provisions of law
nor contravene social morality, nor aim at shirking obligations nor infringe
upon rights of a third party.
Article 5. State policies on
commercial mediation
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2. It
is encouraged to mobilize all resources for commercial mediation activities and
training to build capacity for commercial mediators and commercial mediation
institutions.
Article 6. Conditions for
dispute resolution through commercial mediation
A
dispute shall be resolved through commercial mediation if involved parties so
agree. The parties may reach agreement on dispute resolution through mediation
before or after a dispute arises or at any time in the process of dispute
resolution.
Chapter II
COMMERCIAL MEDIATORS
Article 7. Criteria for a
commercial mediator
1. A
person who fully satisfies the following criteria may act as a commercial
mediator:
a/
Having full civil act capacity as prescribed by the Civil Code; having good
moral qualities and prestige, and working in an independent, impartial and
objective manner;
b/
Possessing a university or higher degree and having at least 2 years’ working
experience in the discipline he/she has studied;
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2. A
commercial mediator may conduct commercial mediation in the capacity as an ad
hoc commercial mediator or a commercial mediator of a commercial mediation
institution in accordance with this Decree.
3. A
commercial mediation institution may set criteria for its commercial mediators
which are higher than those prescribed in Clause 1 of this Article.
4. The
accused or defendants or those who are serving criminal sentences or have not
had their criminal records expunged or are serving the administrative measure
of consignment to a compulsory education institution or compulsory
detoxification establishment may not act as commercial mediators.
Article 8. Registration of ad
hoc commercial mediators
1. A
person who fully satisfies the criteria for a commercial mediator specified in
Clause 1, Article 7 of this Decree and wishes to become an ad hoc
commercial mediator shall register with the provincial-level Department of
Justice of the locality where he/she permanently resides. A foreigner shall
register with the provincial-level Department of Justice of the locality where
he/she temporarily resides.
2. A
requester for registration to be an ad hoc commercial mediator shall
send 1 set of dossier to the provincial-level Department of Justice,
comprising:
a/ A
written request for registration to be an ad hoc commercial mediator,
made according to a form issued by the Ministry of Justice;
b/ A
certified copy, or a copy enclosed with the original for comparison, of his/her
university or higher degree;
c/
Papers proving his/her working experience of at least 2 years in the discipline
he/she has studied, certified by his/her employer.
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3.
Within 7 working days after receiving a complete and valid dossier, the
provincial-level Department of Justice shall add the name of the registration
requester in the list of ad hoc commercial mediators and post the list
on its e-portal; in case of refusal, it shall notify the reason in writing. The
person whose request is rejected may lodge a complaint or initiate a lawsuit in
accordance with law.
4. A
person who no longer acts as an ad hoc commercial mediator shall send a written
notice thereof to the provincial-level Department of Justice of the locality
where he/she has registered to act as an ad hoc commercial mediator,
which shall remove his/her name from the list of ad hoc commercial
mediators.
5. An
organization or individual that detects an ad hoc commercial mediator
who no longer satisfies the criteria specified in Clause 1, Article 7 of this
Decree or violates Article 10 of this Decree shall notify such to the
provincial-level Department of Justice of the locality where he/she has
registered, which shall consider and remove his/her name from the list of ad
hoc commercial mediators.
Article 9. Rights and
obligations of commercial mediators
1. A
commercial mediator has the following rights:
a/ To
accept or refuse to carry out commercial mediation activities;
b/ To
refuse to provide information relating to a dispute, unless the information
provision is agreed upon in writing by involved parties or required by law;
c/ To enjoy
remuneration for commercial mediation activities as agreed upon with disputing
parties;
d/
Other rights as prescribed in this Decree and relevant laws.
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a/ To
comply with law and the codes of ethics and conduct applicable to commercial
mediators; to work in an independent, impartial, objective and honest manner;
b/ To
respect the agreement reached by involved parties if such agreement neither
violates law nor contravenes social morality;
c/ To
keep confidential information about the disputes of which he/she mediates the
resolution, unless otherwise agreed upon in writing by involved parties or
prescribed by law;
d/ To
notify involved parties of his/her competence and mediation remuneration and
costs before conducting mediation;
dd/ To
refrain from acting as a representative of or an advisor for any of involved
parties or concurrently acting as an arbitrator for the same dispute of which
he/she is mediating or has mediated the resolution, unless otherwise agreed
upon by the parties;
e/
Other obligations as prescribed in this Decree and relevant laws.
Article 10. Prohibited acts of
commercial mediators
1.
Disclosing information about disputes or clients they know in the mediation
process, unless otherwise agreed upon by disputing parties in writing or
prescribed by law.
2.
Violating the code of ethics applicable to commercial mediators.
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4.
Other prohibited acts as prescribed by law.
Chapter III
ORDER AND PROCEDURES FOR COMMERCIAL MEDIATION
Article 11. Mediation
agreement
1.
Mediation agreement may be established in the form of a mediation clause in a
contract or of a separate agreement.
2.
Mediation agreement shall be established in writing.
Article 12. Selection and
appointment of commercial mediators
1.
Involved parties shall reach agreement on selecting a commercial mediator from
the list of commercial mediators of a commercial mediation institution or from
the list of ad hoc commercial mediators publicized by the
provincial-level Department of Justice.
2. The
appointment of a commercial mediator via a commercial mediation institution
must comply with the Mediation Rule of this institution.
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1.
Disputing parties have the following rights:
a/ To
select the mediation order and procedures, commercial mediators, and venue and
time for mediation;
b/ To
accept or refuse mediation; to request suspension or termination of mediation;
c/ To
request mediation to be conducted publicly or behind closed doors;
d/ To
express their wills and decisions on mediation contents;
dd/ Other
rights as prescribed in this Decree and relevant laws.
2.
Disputing parties have the following obligations:
a/ To
truthfully present circumstances of their dispute, and provide information and
documents relating to the dispute at the request of the commercial mediator;
b/ To
comply with the successful mediation result;
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d/
Other obligations as prescribed in this Decree and relevant laws.
Article 14. Mediation order
and procedures
1.
Involved parties may select to apply the Mediation Rule of a commercial
mediation institution for conducting mediation or reach agreement on the
mediation order and procedures. If the parties do not reach such agreement, the
commercial mediator may conduct mediation according to the order and procedures
he/she finds suitable to the circumstances of the dispute and the aspirations
of the parties, which are accepted by the parties.
2. The
resolution of a dispute may be mediated by one or more than one commercial
mediator as agreed upon by involved parties.
3. At
any time in the mediation process, a commercial mediator may put forth
proposals for dispute resolution.
4. The
venue and time of mediation may be agreed upon by involved parties or selected
by the commercial mediator in case the parties reach no agreement thereon.
Article 15. Successful
mediation result
1.
When attaining a successful mediation result, involved parties shall make a
written record thereof. This record is binding on the parties in accordance
with the civil law.
2. A
written record of successful mediation result must contain the following
principal contents:
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b/
Basic information of involved parties;
c/
Major circumstances of the dispute;
d/
Agreement reached and solution;
dd/
Other contents as agreed upon by the parties in accordance with law.
3. A
written record of successful mediation result must bear the signatures of the
involved parties and the commercial mediator.
4. If
unable to attain a successful mediation result, involved parties may either
continue the mediation or request an arbitration or a court to resolve their
dispute in accordance with law.
Article 16. Recognition of
successful mediation results
A
written record of successful mediation result shall be recognized in accordance
with the civil procedure law.
Article 17. Termination of
mediation proceedings
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1.
Involved parties have attained a successful mediation result.
2. The
commercial mediator finds it unnecessary to continue the mediation after
consulting involved parties.
3. At
the request of one or more than one disputing party.
Chapter IV
COMMERCIAL MEDIATION INSTITUTIONS
Article 18. Commercial
mediation institutions
Commercial
mediation institutions include:
1.
Commercial mediation centers that are established and operate in accordance
with this Decree.
2.
Arbitration centers that are established and operate in accordance with the law
on commercial arbitration and carry out commercial mediation activities under
Article 23 of this Decree.
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1.
Commercial mediation centers shall be established in accordance with this
Decree and have the legal person status and own seals and bank accounts.
2.
Commercial mediation centers shall operate not for profit.
3.
Commercial mediation centers may establish branches and representative offices
at home and abroad.
4. The
organizational structure of a commercial mediation center shall be stated in
the Charter of the center. The chairperson of a commercial mediation center
must be a commercial mediator.
Article 20. Names of
commercial mediation centers and their branches and representative offices
1. The
name of a commercial mediation center must be in Vietnamese, containing the
words “Trung tam hoa giai thuong mai” (commercial mediation center), which must
be neither identical to nor confused with the name of another licensed
commercial mediation institution; and must not violate historical, cultural and
ethical traditions or fine customs and practices of the nation.
A
commercial mediation center may use an abbreviated name or a transaction name
in foreign language.
2. The
name of a branch of a commercial mediation center must contain the word “Chi
nhanh” (branch) and the name of the center.
3. The
name of a representative office of a commercial mediation center must contain
the words “Van phong dai dien” (representative office) and the name of the
center.
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1. A
Vietnamese citizen who fully satisfies the criteria for a commercial mediator
specified in Clause 1, Article 7 of this Decree and wishes to establish a
commercial mediation center shall send 1 set of dossier to the Ministry of
Justice, comprising:
a/ A
written request for establishment of a commercial mediation center, made
according to a form issued by the Ministry of Justice;
b/ A
list of the center’s founders;
c/
Papers proving the founders’ full satisfaction of the criteria for a commercial
mediator specified in Clause 1, Article 7 of this Decree;
d/ The
draft Mediation Rule of the center.
The
contents of the center’s Mediation Rule must not contravene law.
2.
Within 30 days after receiving a valid dossier, the Ministry of Justice shall
grant an establishment license to the commercial mediation center; in case of
refusal, it shall notify the reason in writing. The person having his/her
request for establishment of a commercial mediation center rejected may lodge a
complaint or initiate a lawsuit in accordance with law.
Article 22. Registration of
operation of commercial mediation centers
1.
Within 30 days from the effective date of the decision on grant of its
establishment license, a commercial mediation center shall send a dossier for
operation registration to the provincial-level Department of Justice of the
locality where its head office is located. Past this time limit, if the center
fails to register its operation, its establishment license shall be
invalidated, unless it has a plausible reason.
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a/ A
written request for operation registration, made according to a form issued by
the Ministry of Justice;
b/ A
certified copy, or a copy enclosed with the original for comparison, of the
center establishment license;
c/
Papers proving the center’s head office.
3.
Within 15 days after receiving a valid dossier, the provincial-level Department
of Justice shall grant an operation registration certificate to the commercial
mediation center; in case of refusal, it shall notify the reason in writing.
The provincial-level Department of Justice shall send a copy of such operation
registration certificate to the Ministry of Justice.
4. A
commercial mediation center may start to operate on the date it is granted an
operation registration certificate and use its seal in accordance with law.
5.
Within 30 days after being granted an operation registration certificate, a commercial
mediation center shall publish in 3 consecutive issues of a central daily or a
newspaper of the locality where it registers its operation the following basic
information:
a/
Name and head-office address of the center;
b/
Operation areas of the center;
c/
Serial number, issuer and date of issuance of the operation registration
certificate;
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Article 23. Commercial
mediation activities of arbitration centers
1. An
arbitration center which has been licensed and registered under the law on
commercial arbitration that wishes to carry out commercial mediation activities
shall send 1 set of dossier to the Ministry of Justice, comprising:
a/ A
written request for addition of commercial mediation activities, made according
to a form issued by the Ministry of Justice;
b/ The
draft Mediation Rule of the center.
Within
15 days after receiving a valid dossier, the Ministry of Justice shall issue a
decision on addition of commercial mediation activities for the arbitration center;
in case of refusal, it shall notify the reason in writing. The arbitration
center shall register the change of contents of its operation registration
certificate with the provincial-level Department of Justice of the locality
where it has registered its operation.
2.
Founders who submit a dossier for establishment of an arbitration center and
want the arbitration center to concurrently carry out commercial mediation
activities shall enclose the dossier with a draft Mediation Rule.
3. The
contents of the Mediation Rule of an arbitration center must not contravene
law.
4. The
order and procedures for establishment of an arbitration center, registration
of operation of an arbitration center, and change of contents of the
establishment license or operation registration certificate of an arbitration
center must comply with the law on commercial arbitration.
Article 24. Rights and
obligations of commercial mediation institutions
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a/ To
carry out commercial mediation activities;
b/ To
provide training in mediation skills for commercial mediators;
c/ To
collect remuneration and other lawful fees related to commercial mediation
activities;
d/ To
develop criteria for commercial mediators and a process of selecting commercial
mediators, making a list of commercial mediators, and removing names of
commercial mediators from the list;
dd/ To
appoint commercial mediators at the request of involved parties;
e/
Other rights as prescribed in this Decree and relevant laws.
2. A
commercial mediation institution has the following obligations:
a/ To
make and publicize a list of its commercial mediators and send it to the
Ministry of Justice and provincial-level Department of Justice of the locality where
it has registered its operation within 7 working days from the date it is
granted the operation registration certificate, or from the effective date of
the decision on addition of commercial mediation activities for the arbitration
center, or from the date the list of commercial mediators is changed;
b/ To
pay remuneration and other costs to commercial mediators;
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d/ To
formulate, issue and publicize the Mediation Rule and mediation remuneration
rates;
dd/ To
report on its organization and operation to the provincial-level Department of
Justice of the locality where it has registered its operation on an annual
basis and upon request;
e/ To
archives files and provide information on mediation results at the request of
disputing parties or competent state agencies;
g/
Other obligations as prescribed in this Decree and relevant laws.
Article 25. Branches of
commercial mediation centers
1.
Branch is a dependent unit of a commercial mediation center and shall operate
in the operation areas stated in the center establishment license.
2. A
commercial mediation center shall take responsibility before law for the
operation of its branch, and appoint a commercial mediator to act as the
branch’s head.
3.
Within 15 days after deciding to establish a branch, a commercial mediation
center shall send 1 set of dossier for registration of the branch’s operation
to the provincial-level Department of Justice of the locality where such branch
will be located, comprising:
a/ A
written request for registration of a branch’s operation, made according to a
form issued by the Ministry of Justice;
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Within
10 days after receiving a valid dossier, the provincial-level Department of
Justice shall grant an operation registration certificate to the branch and
send a copy of this certificate to the Ministry of Justice.
4. In
case a commercial mediation center establishes its branch outside a province or
centrally run city where it has registered its operation, within 7 working days
after its branch is granted an operation registration certificate, the center
shall send a written notice of the branch’s establishment to the
provincial-level Department of Justice of the locality where it has registered
its operation.
5. The
branch of a commercial mediation center may use a seal in accordance with law.
Article 26. Change of names or
head-office addresses of commercial mediation centers
1. If
wishing to change its name or head-office address from a province or centrally
run city to another, a commercial mediation center shall send 1 set of dossier
of request for the change to the Ministry of Justice, comprising:
a/ A
written request for the change, made according to a form issued by the Ministry
of Justice;
b/
Papers relevant to the change.
Within
15 days after receiving a dossier of request for the change, the Ministry of
Justice shall issue a written approval of the change; in case of refusal, it
shall notify the reason in writing.
2.
Within 15 days from the effective date of the Ministry of Justice’s written
approval of the change of the name of a commercial mediation center, the center
shall send a written request for change of its name in its operation registration
certificate to the provincial-level Department of Justice of the locality where
it has registered its operation. Within 7 working days after receiving the
center’s written request, the provincial-level Department of Justice shall
issue a decision to change the name of the center in its operation registration
certificate.
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Within
7 working days after being granted a new operation registration certificate,
the commercial mediation center shall send a written notice thereof to the
provincial-level Department of Justice of the locality where it has registered
its operation before the change of its head-office address. The
provincial-level Department of Justice shall issue a decision to revoke the
operation registration certificate already granted to the center.
4. In
case a commercial mediation center changes its head-office address within a
province or centrally run city, within 7 working days from the date of the
change, the center shall send a written notice thereof to the Ministry of
Justice and provincial-level Department of Justice of the locality where it has
registered its operation.
Article 27. Re-grant of
establishment licenses or operation registration certificates of commercial
mediation centers or operation registration certificates of branches of
commercial mediation centers
1. In
case the establishment license or operation registration certificate of a
commercial mediation center or the operation registration certificate of the
branch of a commercial mediation center is lost, burnt, torn or rumpled or
otherwise destroyed, the center or branch shall send a written request for
re-grant to the competent agency that has granted such license or certificate.
2.
Within 10 days after receiving the written request, the Ministry of Justice
shall re-grant an establishment license to the commercial mediation center.
Within 5 working days after receiving the written request, the provincial-level
Department of Justice shall re-grant an operation registration certificate to
the commercial mediation center or branch.
Article 28. Representative
offices of commercial mediation centers
1.
Representative office is a dependent unit of a commercial mediation center,
which is established to seek and promote opportunities of commercial mediation
activities. A representative office may use a seal in accordance with law.
2. A
commercial mediation center shall take responsibility before law for the
operation of its representative office.
3.
Within 7 working days after establishing its representative office or changing
the address or head of its representative office, a commercial mediation center
shall send a notice thereof to the provincial-level Department of Justice of
the locality where it registers operation.
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Article 29. Overseas branches
and representative offices of commercial mediation centers
Within
30 days after obtaining a competent foreign authority’s permission for
establishment of an overseas branch or representative office or terminating the
operation of an overseas branch or representative office, a commercial
mediation center shall send a written notice thereof to the Ministry of Justice
and provincial-level Department of Justice of the locality where it has
registered its operation.
Article 30. Revocation of
establishment licenses or operation registration certificates of commercial
mediation centers or operation registration certificates of branches of
commercial mediation centers
1. A
commercial mediation center may have its establishment license revoked in the
following cases:
a/ It
repeats a violation related to commercial mediation for which it has been
administratively sanctioned under the law on handling of administrative
violations;
b/ It
does not carry out any commercial mediation activity within 5 consecutive years
after being granted an establishment license;
c/ It
fails to register operation with the provincial-level Department of Justice of
the locality where its head office is located within 30 days from the effective
date of the decision on grant of its establishment license, unless it has a
plausible reason.
2. An
organization or individual that detects a commercial mediation center falling
into any of the cases subject to revocation of establishment license shall
notify such to the provincial-level Department of Justice of the locality where
the center registers its operation for the latter to verify. If finding that
the center falls into any of the cases subject to revocation of establishment
license specified in Clause 1 of this Article, the provincial-level Department
of Justice shall send a written request enclosed with relevant papers (if any)
to the Ministry of Justice for revocation of the establishment license, stating
the reason.
3.
Within 15 days after receiving the written request from the provincial-level
Department of Justice, the Ministry of Justice shall consider and revoke the
establishment license of the commercial mediation center.
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4. The
branch of a commercial mediation center that repeats a violation related to
commercial mediation for which it has been administratively sanctioned under
the law on handling of administrative violations shall have its operation registration
certificate revoked. The provincial-level Department of Justice that has
granted the operation registration certificate to the branch shall revoke such
certificate.
Article 31. Termination of
operation of commercial mediation centers or commercial mediation activities of
arbitration centers
1. A
commercial mediation center shall terminate operation in the following cases:
a/ It
terminates operation at its own discretion;
b/ Its
establishment license is revoked under Clause 1, Article 30 of this Decree.
2. In
case of operation termination under Point a, Clause 1 of this Article, at least
30 days before the date of operation termination, a commercial mediation center
shall send a written notice thereof to the Ministry of Justice and
provincial-level Department of Justice of the locality where it has registered
its operation.
Within
60 days after deciding to terminate operation, the commercial mediation center
shall pay off all debts and other asset liabilities, liquidate contracts and
fulfill the cases it has accepted, unless otherwise agreed upon.
3.
Within 10 days after completing the activities specified in Clause 2 of this
Article, the commercial mediation center shall send a written report thereon to
the Ministry of Justice and provincial-level Department of Justice of the
locality where it has registered its operation. Within 7 working days after
receiving the center’s report, the Ministry of Justice shall issue a decision
to revoke the establishment license. Within 5 working days from the effective
date of the Ministry of Justice’s decision on revocation of the establishment
license, the provincial-level Department of Justice shall issue a decision to
revoke the operation registration certificate of the center.
4. In
case of operation termination under Point b, Clause 1 of this Article, within
60 days from the effective date of the Ministry of Justice’s decision on
revocation of the establishment license of a commercial mediation center, the
center shall pay off all debts and other asset liabilities, liquidate contracts
and fulfill all the cases it has accepted, unless otherwise agreed upon.
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a/ It
terminates operation under the law on commercial arbitration;
b/ It
terminates commercial mediation activities under its Charter;
c/ It
does not carry out any commercial mediation activity within 5 years from the
effective date of the Ministry of Justice’s decision on addition of commercial
mediation activities;
d/ It
repeats a violation related to commercial mediation for which it has been
administratively sanctioned under the law on handling of administrative
violations.
6. The
termination of operation of an arbitration center under Point a or b, Clause 5 of
this Article must comply with the law on commercial arbitration. The payment of
the center’s obligations must comply with Clause 2 of this Article.
7. In
case an arbitration center terminates operation under Point c or d, Clause 5 of
this Article, the Ministry of Justice shall issue a written document to revoke
the decision on addition of commercial mediation activities for the center.
Within 10 days from the effective date of such document, the arbitration center
shall register the change of contents of its operation registration certificate
with the provincial-level Department of Justice of the locality where it has
registered its operation. The order and procedures for the change of contents
of operation registration certificates must comply with the law on commercial
arbitration. The payment of the center’s obligations must comply with Clause 4
of this Article.
Article 32. Termination of
operation of branches or representative offices of commercial mediation centers
1. The
branch of a commercial mediation center shall terminate operation in the
following cases:
a/
Under the center’s decision;
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c/ Its
operation registration certificate is revoked under Clause 4, Article 30 of this
Decree.
2.
Within 30 days from the date of termination of operation of its branch, a
commercial mediation center shall send a written notice thereof to the Ministry
of Justice, provincial-level Department of Justice of the locality where the
center has registered its operation and provincial-level Department of Justice
of the locality where the branch has registered its operation.
3. The
representative office of a commercial mediation center shall terminate
operation under the center’s decision or when the center terminates operation
under Clause 1, Article 31 of this Decree. At least 10 days before the date of
termination of operation of its representative office, the commercial mediation
center shall notify such to the provincial-level Department of Justice of the
locality where it has registered its operation and provincial-level Department
of Justice of the locality where its representative office is located.
Chapter V
OPERATION OF VIETNAM-BASED FOREIGN COMMERCIAL MEDIATION INSTITUTIONS
Article 33. Conditions for and
forms of operation of Vietnam-based foreign commercial mediation institutions
1.
Foreign commercial mediation institutions that are lawfully established and
operate in foreign countries and respect the Constitution and laws of the
Socialist Republic of Vietnam may operate in Vietnam in accordance with this
Decree.
2.
Foreign commercial mediation institutions may operate in Vietnam in the
following forms:
a/
Branches of foreign commercial mediation institutions (below referred to as
branches);
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Article 34. Branches and
representative offices of Vietnam-based foreign commercial mediation
institutions
1.
Branch is a dependent unit of a foreign commercial mediation institution, which
is established to carry out commercial mediation activities in Vietnam in
accordance with this Decree. A foreign commercial mediation institution shall
take responsibility before Vietnamese law for the operation of its branch. The
foreign commercial mediation institution shall appoint a commercial mediator to
be head of its branch. The head of a branch shall act as the authorized
representative of a Vietnam-based foreign commercial mediation institution.
2.
Representative office is a dependent unit of a foreign commercial mediation
institution, which is established to seek and promote opportunities of
mediation activities in Vietnam in accordance with this Decree. The foreign
commercial mediation institution shall take responsibility before Vietnamese
law for the operation of its representative office.
3. The
name of a branch of a foreign commercial mediation institution must contain the
word “Chi nhanh” (branch) and the name of the institution.
The
name of the representative office of a foreign commercial mediation institution
must contain the words “Van phong dai dien” (representative office) and the
name of the institution.
Names
of branches or representative offices of foreign commercial mediation institutions
must comply with Clause 1, Article 20 of this Decree.
Article 35. Rights and
obligations of branches and representative offices of Vietnam-based foreign
commercial mediation institutions
1.
Rights and obligations of a branch
a/ To
rent a working office to serve its operation;
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c/ To
open Vietnam dong and foreign currency accounts at banks licensed to operate in
Vietnam to serve its operation;
d/ To transfer
its incomes abroad in accordance with Vietnamese law;
dd/ To
have a seal as prescribed by law;
e/ To
operate for proper purposes and within the scope and period stated in its
establishment license;
g/ To
appoint mediators to conduct mediation as authorized by the foreign commercial
mediation institution;
h/ To
provide commercial mediation services;
i/ To
archive files and provide copies of written records of mediation results at the
request of disputing parties or competent state agencies;
k/ To
report on the organization of commercial mediation activities to the
provincial-level Department of Justice of the locality where it has registered
its operation on an annual basis and upon request;
l/
Other rights and obligations as prescribed by law.
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a/ The
rights and obligations specified at Points a, b, c, dd, e and l, Clause 1 of
this Article;
b/ To
seek and promote opportunities of commercial mediation activities in Vietnam;
c/ To
refrain from carrying out commercial mediation activities in Vietnam; to carry
out only activities to promote and advertise commercial mediation activities in
accordance with Vietnamese law;
d/ To
report on its organization and activities to the provincial-level Department of
Justice of the locality where it is located on an annual basis and upon
request.
Article 36. Grant of licenses
for establishment of branches or representative offices of Vietnam-based
foreign commercial mediation institutions
1. A
foreign commercial mediation institution that wishes to establish a branch or
representative office in Vietnam shall send 1 set of dossier to the Ministry of
Justice, comprising:
a/ A
written request for establishment of a branch or representative office, made
according to a form issued by the Ministry of Justice;
b/ A
certified copy of the paper proving the lawful establishment of the
institution, issued by a competent foreign authority;
c/ A
written introduction of the institution’s operation;
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dd/ A
list of commercial mediators and staff members expected to work at the branch;
or a list of staff members expected to work at the representative office.
3.
Foreign-language papers accompanying the written request for establishment of a
branch or representative office must have Vietnamese translations which are
certified in accordance with Vietnamese law.
Papers
issued by foreign agencies or organizations or notarized or certified in foreign
countries must be consularly legalized in accordance with Vietnamese law,
unless they are exempted from consular legalization under a treaty to which the
Socialist Republic of Vietnam is a contracting party.
4.
Within 30 days after receiving a valid dossier, the Ministry of Justice shall
grant an establishment license to the branch or representative office of a
foreign commercial mediation institution; in case of refusal, it shall notify
the reason in writing.
Article 37. Registration
of operation of branches or announcement of establishment of representative
offices of Vietnam-based foreign commercial mediation institutions
1.
Within 60 days from the effective date of the decision on grant of its
establishment license, a branch shall send 1 set of dossier for operation
registration to the provincial-level Department of Justice of the locality
where it is located. Past this time limit, if the branch fails to register
operation, its establishment license shall be invalidated, unless it has a
plausible reason.
2. A
dossier for operation registration must comprise:
a/ A
written request for operation registration, made according to a form issued by
the Ministry of Justice;
b/ A
certified copy, or a copy enclosed with the original for comparison, of the branch’s
establishment license;
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3.
Within 10 days after receiving a complete and valid dossier, the
provincial-level Department of Justice shall grant an operation registration
certificate to the branch. The branch may start operation on the date it is
granted the operation registration certificate.
Within
7 working days after granting the operation registration certificate to the
branch, the provincial-level Department of Justice shall send a copy of this
certificate to the Ministry of Justice.
4.
Within 7 working days from the effective date of the decision on grant of its
establishment license, a representative office shall send 1 set of dossier
notifying its establishment to the provincial-level Department of Justice of
the locality where it is located, comprising:
a/ A
notice of the establishment of the representative office;
b/ A
certified copy, or a copy enclosed with the original for comparison, of the
representative office establishment license.
Article 38. Change of names,
heads or addresses of branches or representative offices of Vietnam-based
foreign commercial mediation institutions
1. A
branch that wishes to change its name or head or change its address from a
province or centrally run city to another shall send 1 set of dossier of
request for the change to the Ministry of Justice, comprising:
a/ A
written request for the change, made according to a form issued by the Ministry
of Justice;
b/
Papers relevant to the change.
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2.
Within 15 days from the effective date of the Ministry of Justice’s written
approval of the change of its name or head, a branch shall send a written
request for the change of its name or head in its operation registration
certificate to the provincial-level Department of Justice of the locality where
it has registered its operation. Within 7 working days after receiving the
branch’s written request, the provincial-level Department of Justice shall
issue a decision to change the name or head of the branch in its operation
registration certificate.
3.
Within 20 days from the effective date of the Ministry of Justice’s written
approval of the change of its address from a province or centrally run city to
another, a branch shall register operation with the provincial-level Department
of Justice of the locality where it moves to. The order and procedures for
operation registration must comply with Clauses 2 and 3, Article 37 of this
Decree.
Within
7 working days after being granted a new operation registration certificate,
the branch shall send a written notice thereof to the provincial-level
Department of Justice of the locality where it has registered its operation
before the change of its address. The provincial-level Department of Justice
shall issue a decision to revoke the branch’s operation registration
certificate.
4. A
representative office that wishes to change its name or head or change its
address from a province or centrally run city to another shall, within 7
working days after deciding on the change, send a written notice thereof to the
Ministry of Justice and provincial-level Department of Justice of the locality
where it is located.
Article 39. Re-grant of
establishment licenses or operation registration certificates of branches or
licenses for establishment of representative offices of Vietnam-based foreign
commercial mediation institutions
1. In
case its establishment license or operation registration certificate is lost,
burnt, torn or rumpled or otherwise destroyed, a branch or representative
office of a Vietnam-based foreign commercial mediation institution shall send a
written request for re-grant to the competent agency that has granted such
license or certificate.
2.
Within 10 days after receiving the written request, the Ministry of justice
shall re-grant an establishment license to the branch or representative office
of a Vietnam-based foreign commercial mediation institution. Within 5 working
days after receiving the written request, the provincial-level Department of
Justice shall re-grant an operation registration certificate to the branch of a
Vietnam-based foreign commercial mediation institution.
Article 40. Revocation of
establishment licenses or operation registration certificates of branches or
establishment licenses of representative offices of Vietnam-based foreign
commercial mediation institutions
1. The
branch of a Vietnam-based foreign commercial mediation institution may have its
establishment license revoked in the following cases:
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b/ It
does not carry out any activity stated in its establishment license within 5
consecutive years from the date it is granted this license;
c/ It
fails to register operation within 60 days from the effective date of the
decision on grant of its establishment license, unless it has a plausible
reason.
2. The
representative office of a Vietnam-based foreign commercial mediation
institution shall have its establishment license revoked in case it repeats a
violation related to commercial mediation for which it has been
administratively sanctioned under the law on handling of administrative
violations.
3. An
organization or individual that detects a branch or representative office
falling into any of the cases subject to revocation of establishment license
shall notify such to the provincial-level Department of Justice of the locality
where such branch or representative office is located for the latter to verify.
If
having grounds to believe that the branch or representative office falls into
the case specified in Clause 1 or 2 of this Article, the provincial-level
Department of Justice shall send a written request enclosed with relevant
papers (if any) to the Ministry of Justice for revocation of its establishment
license, stating the reason.
4.
Within 15 days after receiving the written request from the provincial-level
Department of Justice, the Ministry of Justice shall consider and decide to
revoke the branch’s or representative office’s establishment license.
5. Within
15 days from the effective date of the Ministry of Justice’s decision on
revocation of the establishment license of the branch of a Vietnam-based
foreign commercial mediation institution, the provincial-level Department of
Justice of the locality where such branch has registered its operation shall
issue a decision to revoke its operation registration certificate.
Article 41. Termination
of operation of branches or representative offices of Vietnam-based foreign
commercial mediation institutions
1. A
branch or the representative office of a Vietnam-based foreign commercial
mediation institution shall terminate operation in the following cases:
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b/ The
institution terminates operation overseas;
c/ It
has its establishment license revoked under Clause 1 or 2, Article 40 of this
Decree.
2. In
case of operation termination under Point a or b, Clause 1 of this Article, at
least 30 days before the date of operation termination, the branch or
representative office shall send a written notice thereof to the Ministry of
Justice and provincial-level Department of Justice of the locality where it is
located.
Within
60 days from the date of operation termination, the branch or representative
office shall pay off all debts and asset liabilities; liquidate labor
contracts; and fulfill all cases it has accepted, unless otherwise agreed upon.
3.
Within 10 days after completing the activities specified in Clause 2 of this
Article, the branch or representative office shall send a written report
thereon to the Ministry of Justice and provincial-level Department of Justice
of the locality where the branch has registered its operation or the
representative office is located. Within 7 working days after receiving such
report, the Ministry of Justice shall issue a decision to revoke the
establishment license of the branch or representative office; or the
provincial-level Department of Justice shall issue a decision to revoke the
operation registration certificate of the branch.
4. In
case of operation termination under Point c, Clause 1 of this Article, within
60 days from the effective date of the Ministry of Justice’s decision on
revocation of its establishment license, the branch or representative shall pay
off all debts and asset liabilities, liquidate labor contracts, and fulfill all
cases it has accepted, unless otherwise agreed upon.
Chapter VI
IMPLEMENTATION PROVISIONS
Article 42. State management
of commercial mediation
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a/ To
draft and submit to competent state agencies for promulgation or promulgate
according to its competence documents detailing and guiding the law on
commercial mediation;
b/ To
grant and revoke establishment licenses of commercial mediation centers; to
grant and revoke establishment licenses of branches or representative offices
of Vietnam-based foreign commercial mediation institutions; to approve the
change of contents of establishment licenses of commercial mediation centers;
to approve the change of contents of establishment licenses of branches of
Vietnam-based foreign commercial mediation institutions; to add commercial
mediation activities for arbitration centers;
c/ To
publicize the list of commercial mediators and the list of commercial mediation
institutions nationwide;
d/ To
promulgate, and guide the uniform use of, forms of documents and papers
relating to commercial mediation;
dd/ To
take measures to support development of commercial mediation activities; to
formulate a master plan on development of commercial mediation institutions
nationwide; to propagate and disseminate laws and provide professional guidance
on commercial mediation;
e/ To
examine and inspect, settle complaints and denunciations, and handle violations
of the law on commercial mediation;
g/ To
perform international cooperation in the field of commercial mediation;
h/ To
perform other tasks and exercise other powers as prescribed in this Decree and
relevant laws.
2.
Provincial-level People’s Committees shall, within the ambit of their
competence, perform the state management of commercial mediation activities in
localities.
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a/ To
register operation of commercial mediation centers and register the change of
contents of their operation registration certificates; to register the change
of contents of operation registration certificates of arbitration centers; to
register operation of branches of commercial mediation centers or branches of
Vietnam-based foreign commercial mediation institutions and register the change
of contents of their operation registration certificates; to revoke operation
registration certificates of commercial mediation centers or their branches; to
revoke operation registration certificates of branches of Vietnam-based foreign
commercial mediation institutions;
b/ To
register and make lists of ad hoc commercial mediators, and remove names
of ad hoc commercial mediators from such lists;
c/ To
update and publicize lists of ad hoc commercial mediators and commercial
mediation institutions on their e-portals; to review, compile statistics of,
and report on annual data on commercial mediators in localities;
d/ To propagate
and disseminate laws and provide professional guidance on commercial mediation;
dd/ To
examine and inspect, settle complaints and denunciations, and handle violations
related to commercial mediation activities in localities according to their competence;
e/ To
report on commercial mediation activities in localities to provincial-level
People’s Committees and the Ministry of Justice on an annual basis and upon
request;
g/ To
perform other tasks and exercise other powers under decisions of provincial-level
People’s Committee chairpersons or as authorized by the Minister of Justice in
accordance with this Decree and relevant laws.
3.
Ministries and ministerial-level agencies shall, within the ambit of their
tasks and powers, coordinate with the Ministry of Justice in performing the
state management of commercial mediation.
Article 43. Effect
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Article 44. Implementation
responsibility
Ministers,
heads of ministerial-level agencies, heads of government-attached agencies, and
chairpersons of provincial-level People’s Committees shall implement this
Decree.-
ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Xuan Phuc
[1] Công Báo Nos 189-190 (16/3/2017)