Dispute Settlemts - Litigation

COMMERCIAL DISPUTE
SETTLEMENTS
- Litigation
LLM. Bui Doan Danh Thao

Aims
• What is litigation?
1
• When will your dispute be settled by litigation?

2
• How will your dispute be settled by Vietnamese

3 courts?
• How will the court’s decisions be enforced?

4
What is litigation?
What is litigation?
Litigation is the most formal method of dispute

settlement of commercial disputes in which the
disputes will be settled by judges in the court system.
Features of Litigation
Litigation Arbitration
An Adjudicative method performed by a
Nature
neutral third party
Principles to reach
Apply facts and law
a judgement
Binding on disputants
Judgements
Can be appealed Final
Agreements between
Jurisdiction Based on the law
disputants
Can choose rules,
Procedures Comply with law language, time and
place to settle disputes
Principles of
Public Confidential
adjudication
Aims
1

2

3 courts?

4
When will your dispute be settled by
litigation?
No arbitration
agreement
Customers choose to bring the

disputes related to goods and Invalid arbitration
service supply to court even if agreements
there is an arbitration agreement
Arbitration awards are

cancelled in case of having
arbitration agreements
Aims
1

2

3 courts?

4
Basic principles of dispute settlement by the
court system (Article 3- 24, the civil procedure code 2004)
The courts must conduct
conciliation to help the
disputers reach an agreement
First-instance adjudication
The courts will judge of civil cases always has
collectively and in public participation of people’s
jurors
The courts will follow the two-

Judges and people’s jurors
level adjudication regime
are independent and only
including first-instance and
comply with law
appellate adjudication
How will your dispute be settled by Vietnamese
courts? Submit a lawsuit
petition
Return the petitions or

Accept the case and conduct transfer the petition to
conciliation competent courts
Normal procedures Summary procedures
Conciliation is Conciliation is
successful unsuccessful
Issue a decision to First instance

recognise the agreement adjudication
Appeal No appeal
Enforce the Appellate

judgements adjudication
What should be included in a lawsuit petition?
(Article 189, the civil procedure code 2015)
1. Date of its making;
2. Name of the court receiving the petition;
3. Name and address of the plaintiff;
4. Name and address of the person with his/her rights and interests to be
protected, if any;
5. Name and address of the defendant;
6. Name(s) and address(es) of persons(s) with related rights and

obligations, if any;
7. Specific matters requested to be resolved by the court in relation to

the defendant and/or persons(s) with related rights and obligations;
8. Full names and addresses of witnesses, if any;
9. List of documents and evidence enclosed with the petition.

What should be enclosed with a lawsuit
petition? (Article 189, the civil procedure code 2015)
Documents and evidence to prove that their claims

are well grounded and lawful
How will you submit a lawsuit petition?
Directly By post E-portal of

the court
Which court will a lawsuit petition be submitted
to? (Article 35-39, the civil procedure code 2015)
Provincial people’s courts
District people’s courts
(Other commercial disputes and
(Commercial disputes between
disputes falling under district people’s
business entities)
courts but taken up for settlement)
Where the defendant

resides or works
Where the plaintiff resides

or works if agreed by the
parties
Where immovable property is

located if the disputes are related to
such immovable property
Can a plaintiff choose courts to submit their
lawsuit petition? (Article 40, the civil procedure code 2015)
A plaintiff can choose the following cases to submit their lawsuit petition
in specific cases:
Provincial people’s courts
District people’s courts (Other commercial disputes and disputes falling
(Commercial disputes between business entities) under district people’s courts but taken up for
settlement)
Where a branch is located if the disputes are related to the

branch’s operation
Where the defendant last resided or worked or has property
if the defendant’s residence and work place is unknown
Where the plaintiff resides or works if the defendant has
no place of residence or works in Vietnam
Where the contract is performed if the disputes are related
to a contract
Where one of the defendants resides or works if the
disputes are related to more than one defendant
Where one of the immovable properties is located if the
disputes are related to immovable located in different places
When can a plaintiff start a lawsuit?
(Article 184, the civil procedure code 2015 and article 319, the commercial law
2005)
Usually within 2 years from the time of

infringement of lawful rights and
interests
Can a submitted petition be withdrawn or
modified?
A submitted petition can be:

- Withdrawn before opening or at first-instance or appeal
sessions if accepted by the court, and
- Modified before opening or at the first-instance sessions
if accepted by the court
Can the defendant counter-claim?
The defendant can counter-claim the plaintiff in the following cases:
1. The counter-claim is made for clearance of liability against the claim of

the plaintiff
2. The counter –claim will result in the non acceptance of part or whole of
the claim of the plaintiff
3. The counter-claim will make the dispute resolution more accurate and
quicker
Note: the counter-claim must be submitted before the meeting to examine the
handover of, access to, and disclosure of, evidence, and conduct a conciliation
petition


Appeal No appeal

When will the lawsuit petition be returned
by the court? (Article 192, the civil procedure code 2015)
The plaintiff has no right to sue
or does not have full civil
procedure act capacity
The dispute has been

The plaintiff withdrew the solved by a legal effective
lawsuit petition judgement or decision
A lawsuit petition is
refused in the
following cases
The plaintiff fails to pay
The case does not fall the court fee advance as
under the court’s notified
jurisdiction
The lawsuit petition is not

modified or supplemented
as required by the judge
When will the lawsuit petition be transferred to a
competent court?
(Article 191.3, the civil procedure code 2015)
The dispute falls under other court’s jurisdiction

petition


Appeal No appeal

When will the lawsuit petition be
accepted? (Article 195, the civil procedure code 2015)
and
The dispute falls The court fee

under the court’s advance is paid if
jurisdiction applicable
Consequences of acceptance of the
lawsuit petition (Article 197, the civil procedure code 2015)
The court’s chief will assign a judge to settle the dispute

within 3 working days from the date the case is accepted
petition


Appeal No appeal

When will your disputes be settled
according to summary procedures?
 When the dispute meets all of the following conditions:
Having simple details and a clear legal relation
Disputers has admitted their obligations
There is no need of evidence and document collection
The parties have clear residence or head office address
No party resides abroad and no disputed property is located

abroad
petition


Appeal No appeal

In which cases must conciliation be
conducted?
All commercial disputes except disputes arising from

transactions which are contrary to law or social ethics
Principles of conciliation
The contents of
Voluntary agreements agreements between the
made by the parties are parties must not be
respected contrary to law and
social ethics
petition


Appeal No appeal

When will conciliation be considered as
successful?
The disputers reach an agreement to settle the whole dispute

Recognition of the agreement between
the parties (Article 212, the civil procedure code 2015)
The court will issue a decision to recognise the agreement made by

the parties via conciliation after 7 days from the date the record on
successful conciliation made
Will the decision on recognition of the
agreement be appealed? (Article 213, the civil procedure code 2015)
The decision on recognition of the agreement made between

the parties via conciliation will come into effect immediately
after they are issued and cannot be appealed
petition


Appeal No appeal

When will conciliation be considered as
unsuccessful? (Article 207, the civil procedure code 2015)
The defendants are intentionally absent though

having been duly summoned twice by courts
The involved parties cannot take part in the

conciliation for reasonable grounds
One of the parties request non conciliation

petition


Appeal No appeal

When will a first-instance adjudication be
conducted?
After accepting the

Conciliation is
lawsuit petition and no
unsuccessful
conciliation conducted
Composition of first-instance trials
(Article 63 and 65, the civil procedure code 2015)
Summary
Normal procedure
procedure
One judge and two people’s

jurors
or One judge
Two judges and three people’s
jurors in special case
Process of first-instance trials
Prepare for first- Commence a

instance trials court session
Argue at court Inquire at court

sessions sessions
Deliberate and
pronounce a
judgement
Can a party be absent in first-instance
sessions? (Article 227, the civil procedure code 2015)
The plaintiff and their The defendant and their

representatives representatives
Absent twice Absent twice
the first instance sessions will

Withdraw the petition
proceed
Can first instance courts settle a dispute
without presence of the parties?
The first instance adjudicative tribunal can settle a dispute without

presence of the parties if requested by the parties or their
representatives attend
How will a judgment be reached?
Court judgements will be reached by majority except

in case of summary procedures
Can a court judgement be modified or amended?
A court judgment can be modified or amended in the following cases:
1. Having spelling mistakes

2. Having confused or incorrectly calculated data
Self-study:
Cases where first-instance resolutions will be terminated
petition


Appeal No appeal

Who can appeal a first-instance court’s
judgement? (Article 271, the civil procedure code 2015)
Plaintiffs and their Defendants and

representatives their representatives
Contents of an appeal (Article 272, the civil procedure code 2015)
1. Date on which the application is made.
2. Full name and address of the appellant.
3. The section of judgment or decision of the first-instance court,

which has not yet taken legal effect and is appealed.
4. The reason(s) for appealing and the appellant's claims.
5. Signature or fingerprint of the appellant.

Which court will an appeal be submitted to?
(Article 272.7, the civil procedure code 2015)
The first instance court

which has issued the judgement
When can you appeal against the first-instance
court’s judgement? (Article 273 and 322, the civil procedure code 2015)
Normal procedures: within 15 days

Summary procedures: within 7 days
from the date of judgement pronouncement or from the date the
judgment is handed to the parties or publicly posted up for the
involved parties being absent from court sessions
petition


Appeal No appeal

When will appellate adjudication be
conducted? (Article 270, the civil procedure code 2015)
A first-instance court’s judgement which has not come

into effect yet is appealed
Which court will conduct appellate
adjudication? (Article 270, the civil procedure code 2015)
Supreme people’s court
People’s high court
Provincial people’s court
District people’s court
The immediate superior court will settle the appeal

Composition of appellate trials
(Article 64 and 65, the civil procedure code 2015)
Normal procedures: Three judges

Summary procedures: One judges
Process of appellate trials
Prepare for appellate Commence a

trials court session
Argue at court Inquire at court

sessions sessions
Deliberate and
pronounce a
judgement
How will a judgment be reached?
Court judgements will be reached by majority except

in case of summary procedures
What judgements may appellate courts
reach? (Article 308, the civil procedure code 2015)
Uphold the first-instance judgement
Modify the first-instance judgement
Annul the first-instance judgement or part of first-instance

judgement and transfer the case to the first-instance court
for retrial
Annul the first instance judgement and terminate the

settlement
Terminate the appellate trial
Suspend the settlement

Can an appellate court’s judgement be
appealed? (Article 313, the civil procedure code 2015)
An appellate court’s judgement will come into force

immediately and can not be appealed
Self-study:
Cases where appellate resolutions will be terminated
What can disputers do in the following
cases?
Judgements came into force and the disputers
discover the following cases:
1. Conclusion in the judgement are incompatible with the

objective details of the cases
2. Serious violations were committed in legal proceedings;
3. Serious mistakes were made in the application of laws;
4. New details which may substantially change the contents
of the judgements are detected
Request for cassation
Conclusion in the judgement are

incompatible with the objective
details of the cases
Cases
Serious violations are

Serious mistakes are made
committed in legal
in the application of laws proceedings
Request for reopening
New details which may substantially change the contents of

the judgements are detected
When will cassation or reopening can be
requested? (Article 327 and 355, the civil procedure code 2015)
Cassation Reopening
Within 1 year from the Within 1 year from the

date the judgement comes date the new details have
into effect been detected
Who will the request be sent to?
(Article 328, 331 and 353 the civil procedure code 2015)
First-instance or
Judgements of district appellate judgments of
and provincial people’s the people’s high court
court and other courts if
neccessary
The chairman of the The chairman of the

people’s high court supreme people’s
or procuracy court or procuracy
Aims
1

2

3 courts?

4
How will the court’s decisions be
enforced?
The party in whose favour the court judgement is rendered

can request the competent civil judgement
enforcement/execution agency to enforce the judgement
if the other party doesn’t willingly perform it
Summary: Litigation
Judges, the process,

Disputes will be settled by language, time and place
judges in the court system will be decided by the law
The most formal

dispute settlement
method
They will bind on the

disputers and be performed Judges will apply law to
willingly or be enforced by reach a judgment
a state power agency if non
compliance
THE END

Dispute Settlemts - Litigation

Uploaded by

Copyright:

Available Formats

You might also like

Dispute Settlemts - Litigation

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Dispute Settlemts - Litigation

Uploaded by

Copyright:

Available Formats

COMMERCIAL DISPUTE

LLM. Bui Doan Danh Thao

• When will your dispute be settled by litigation?

• How will your dispute be settled by Vietnamese

• How will the court’s decisions be enforced?

Litigation is the most formal method of dispute

• When will your dispute be settled by litigation?

• How will your dispute be settled by Vietnamese

• How will the court’s decisions be enforced?

Customers choose to bring the

Arbitration awards are

• When will your dispute be settled by litigation?

• How will your dispute be settled by Vietnamese

• How will the court’s decisions be enforced?

The courts will follow the two-

Return the petitions or

Normal procedures Summary procedures

Issue a decision to First instance

Enforce the Appellate

1. Date of its making;

2. Name of the court receiving the petition;

3. Name and address of the plaintiff;

5. Name and address of the defendant;

6. Name(s) and address(es) of persons(s) with related rights and

7. Specific matters requested to be resolved by the court in relation to

8. Full names and addresses of witnesses, if any;

9. List of documents and evidence enclosed with the petition.

Documents and evidence to prove that their claims

Directly By post E-portal of

Where the defendant

Where the plaintiff resides

Where immovable property is

Where a branch is located if the disputes are related to the

Usually within 2 years from the time of

A submitted petition can be:

The defendant can counter-claim the plaintiff in the following cases:

1. The counter-claim is made for clearance of liability against the claim of

Return the petitions or

Normal procedures Summary procedures

Issue a decision to First instance

Enforce the Appellate

The dispute has been

The lawsuit petition is not

The dispute falls under other court’s jurisdiction

Return the petitions or

Normal procedures Summary procedures

Issue a decision to First instance

Enforce the Appellate

The dispute falls The court fee

The court’s chief will assign a judge to settle the dispute

Return the petitions or

Normal procedures Summary procedures

Issue a decision to First instance

Enforce the Appellate

 When the dispute meets all of the following conditions:

Having simple details and a clear legal relation

Disputers has admitted their obligations

There is no need of evidence and document collection

The parties have clear residence or head office address