What is commercial mediation? What standards are required to be a commercial mediator in Vietnam?

Hello, Lawnet would like to answer as follows:

1. What is commercial mediation?

According to Clause 1, Article 3 of Decree 22/2017/ND-CP, 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.

Principles of dispute resolution through commercial mediation

According to the provisions of Article 4 of Decree 22/2017/ND-CP, there are 03 principles of dispute resolution through commercial mediation as follows:

(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.

At the same time, 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. (According to the provisions of Article 6 of Decree 22/2017/ND-CP on conditions for dispute resolution through commercial mediation)

2. What standards are required to be a commercial mediator?

What is a commercial mediator?‘

According to the provisions of Clause 3, Article 3 of Decree 22/2017/ND-CP, 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 Decree 22/2017/ND-CP.

According to Article 7 of Decree 22/2017/ND-CP,  the criteria for a commercial mediator are as follows:

- A person who fully satisfies the following criteria may act as a commercial mediator:

+ Having full civil act capacity as prescribed by the Civil Code 2015; having good moral qualities and prestige, and working in an independent, impartial and objective manner;

+ Possessing a university or higher degree and having at least 2 years’ working experience in the discipline he/she has studied;

+ Having mediation skills and knowledge about law, business and commercial practices and relevant issues.

- 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.

-  A commercial mediation institution may set criteria for its commercial mediators which are higher than those prescribed in Clause 1 of this Article.

- 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.

According to the above regulations, A person who fully satisfies the following criteria may act as a commercial mediator:

+ Having full civil act capacity as prescribed by the Civil Code 2015; having good moral qualities and prestige, and working in an independent, impartial and objective manner;

+ Possessing a university or higher degree and having at least 2 years’ working experience in the discipline he/she has studied;

+ Having mediation skills and knowledge about law, business and commercial practices and relevant issues.

At the same time, commercial mediators do not fall into prohibited cases such as:

- Not a suspect, defendant or currently serving a sentence;

- Not being sent to an educational facility or compulsory detoxification facility.

Thus, to become a commercial mediator, one must meet the standards of quality, qualifications, experience and not fall into prohibited cases according to regulations.

3. Application for registration of commercial mediator

 Application for registration of commercial mediator is specified in Article 8 of Decree 22/2017/ND-CP specifically:

- A requester for registration to be an ad hoc commercial mediator shall send 1 set of dossier to the provincial-level Department of Justice

The application includes:

+ A written request for registration to be an ad hoc commercial mediator, made according to a form issued by the Ministry of Justice;

+ A certified copy, or a copy enclosed with the original for comparison, of his/her university or higher degree;

+ Papers proving his/her working experience of at least 2 years in the discipline he/she has studied, certified by his/her employer.

Application form to register as a commercial mediator:

Note: 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.

- 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.

- 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.

- An organization or individual that detects an ad hoc commercial mediator who no longer satisfies the criteria specified in Clause 1, Article 7 of Decree 22/2017/ND-CP or violates Article 10 of Decree 22/2017/ND-CP 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.

Note:

- A person who fully satisfies the criteria for a commercial mediator specified in Clause 1, Article 7 of Decree 22/2017/ND-CP 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.

Best regards!

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