How Mediation and Labor Arbitration Councils Work in Settlement of Labor Disputes

During and after the Covid-19 pandamic, the financial health of enterprises have been negatively impacted leading to management’s decision to reduce cost through termination of labour contract with employee. The illegal termination of labour contract could lead to disputes between employer and employee which sometime would cost the employer more than it gains. It is important for the employer to engage with labour lawyers to consult before taking the decision to consider factors that would involve. After disputes arise, mediator or labour arbitration councils could be used for resolving disputes.

 

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Individual labor disputes shall be settled through mediation by labor mediators before being brought to the Labor arbitration council or the Court, except for the following labor disputes which mediation is not mandatory: disputes over disciplining under dismissal or unilateral termination of employment contracts; disputes over damages and allowances upon termination of employment contracts; disputes between a domestic worker and his/her employer; disputes over social insurance in accordance with social insurance laws, disputes over health insurance in accordance with health insurance laws, disputes over unemployment insurance in accordance with employment laws; disputes over insurance for occupational accidents and occupational disease in accordance with occupational safety and hygiene laws; disputes over damages between an employee and enterprises, organization that dispatches the employee to work overseas under a contract; disputes between the outsourcing employee and the employer using outsourcing employee.

The mediator shall complete the mediation process within 05 working days from the receipt of the request from the requesting parties or the authority. Both disputing parties must be present at the mediation meeting. The disputing parties may authorize another person to attend the mediation meeting.

In case the two parties reach an agreement, the labor mediator shall make a written record of successful mediation which bears the signatures of the disputing parties and the labor mediator. In case the two parties do not reach an agreement, the labor mediator shall recommend a mediation option for the disputing parties to consider. Where the two parties do not agree with the recommended mediation option or where one of the disputing parties is absent for the second time without a valid reason after having been legitimately summoned, the labor mediator shall make a record of unsuccessful mediation which bears the signatures of the present disputing parties and the labor mediator.

The disputing parties shall be entitled to request the settlement from Labor arbitration councils in the following cases: a disputing party fails to perform the agreements specified in the record of successful mediation; mediation is not mandatory; the labor mediator fails to initiate the mediation by the deadline; the mediation is unsuccessful.

After the Labor arbitration council has been requested to settle a dispute, the parties must not simultaneously request the Court to settle the same dispute.  If within 07 working days from the receipt of the request, an arbitral tribunal is not established; or within 30 working days from the establishment of the arbitral tribunal, it fails to issue a decision on the settlement of the labor dispute, parties shall be entitled to request the settlement from the Court. In case a disputing party fails to comply with the decision of the arbitral tribunal, the parties are entitled to bring the case to Court.

ANT Lawyers - a Law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

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What laws will be applied for dispute settlement by arbitration in Vietnam?

Under Article 14 of Law on Commercial Arbitration, applicable laws for dispute settlement by arbitration in Vietnam will be Vietnamese if the case involve no foreign element. If dispute involving foreign invested enterprise, parties need to agree on language. If parties do not have such language agreement for arbitration, the arbitration council will decide. In particular:

 

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For a dispute involving no foreign element, the arbitration council shall apply Vietnamese law for settling the dispute.

For a dispute involving foreign elements. the arbitration council shall apply the law selected by the parties. If the parties have no agreement on the applicable law, the arbitration council shall decide to apply a law it sees the most appropriate.

When the Vietnamese law or law selected by the parties contains no specific provisions concerning the dispute, the arbitration council may apply international practices for settling the dispute, provided such application or consequence of such application does not contravene the fundamental principles of Vietnam law.

ANT Lawyers – a Law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or serive request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

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What are Advantages Resolving Disputes by Commercial Arbitration?

Commercial arbitration is a method of settling disputes selected by the parties and conducted in accordance with law. Compared with other method of dispute resolution such as mediation, negotiation, court litigation, dispute resolution by commercial arbitration also has advantages and disadvantages.

 

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In accordance with Vietnamese law and international law, the method of dispute resolution by commercial arbitration also stems from the agreement of the parties on a voluntary basis. However, the difference between these methods is that the settlement of disputes through arbitration will be governed by the Commercial Arbitration Law. The parties are allowed to agree on appropriate arbitration selection, either before or after the dispute arises.

The practice of applying commercial arbitration law in resolving disputes presents some advantages:

Firstly, this is a method of resolving disputes on the principle of confidientiality if the parties do not agree otherwise. This is an advantage that all claimants respect because it limits the disclosure of business secrets, and keeps the credibility of the parties.

Secondly, the decision of the arbitrator is final, binding on the parties and the right to appeal in this case is invalid. The trial at Commercial Arbitration takes place only at one trial level, which the trial at the Court is at two levels. Therefore, it creates a premise for the following advantages.

Thirdly, the settlement of disputes arising through commercial arbitration shows flexibility while shortening the proceedings thereby contributing to saving time and effort of the parties.

Fourthly, the settlement of disputes by arbitration is not territorially limited so the parties may agree to choose any arbitrator to resolve their disputes.

However, the competing parties also need to pay attention that the choice of arbitration method also reveals some disadvantages such as: The enforcement of arbitral awards depends heavily on the willingness of the parties to the dispute. If the party who is serving the judgment does not voluntarily follow the arbitral awards and does not request to cancel the arbitral award after the expiration of the time limit for enforcing the arbitral award, the judgment-executing party may send a written request to the civil judgment enforcement agency for judgment execution.

In addition, one of the disputing parties may submit a request to the Court to cancel the arbitration award when encountering one of these following conditions: (i) There is no arbitration agreement or the arbitration agreement is invalid; (ii) The arbitration council’s composition or procedures of arbitral proceedings does not comply with the parties’ agreement or regulations; (iii) The dispute falls beyond the arbitration council’s jurisdiction: when an arbitral award contains the details falling beyond the arbitration council’s jurisdiction, such details shall be cancelled; (iv) The evidence provided by the parties on which the arbitration council bases to issue the award is counterfeit: an arbitrator receives money, assets or other material benefits from one disputing party, thus affecting the objectivity and impartiality of the award; (v) The award contravenes the fundamental principles of Vietnamese law.

Finally, when the parties choose to resolve their disputes by arbitration method, the costs are relatively higher than in the proceeding of court litigation.

At ANT Lawyers - a law firm in Vietnam our trial lawyers with accreditation in national and international arbitration practice could help providing legal advice in disputed matters, and guide the clients through out the process.  The lawyers could also advise the clients on various matters from choice of arbitrator, choice of arbitration rules, ad-hoc or institutional arbitration, place of arbitration, enforcement of arbitral award.

Employees as well as the labor collective and employers should pay attention to selecting the most appropriate and optimal resolution solution when labor disputes occur.  It is also suggested to consult with labour lawyers of law firm speacializing in employment matters for efficiency.

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How to use published works without permission or pay royalties, remuneration ?

According to regulation of current Law on intellectual property, copyright means rights of an organization or individual to works created or owned by such organization or individual. Copyright to a work includes moral rights and property rights. If other organization or individual wishes to exploit, use a part or the whole of works, they shall ask permission, pay the owner of copyright for royalties, remuneration according to both parties’ agreement or regulation of law. However, there are still cases of using works without having permission and/orwithout paying the author or owner of copyright for royalties, remuneration.

 

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Cases of using published works without having permission, without paying for royalties, remuneration include:

-Making one copy for scientific research or personal teaching purposes.

-Reasonable quoting from a work in order to comment on or illustrate one’s own works, without misrepresenting the author’s views;

-Quoting from a work in order to write an article published in a newspaper or to use in periodical publications, in a radio or television broadcast or in a documentary, without misrepresenting the author’s views;

-Quoting from a work in order to teach in school or university without misrepresenting the author’s views and not for commercial purposes;

-Copying of a work in order to archive in library and research purposes;

-Performing a stage work or other art work in cultural meetings, communication or mobilization activities without collecting fees in any form;

-Directly audio-visual recording of a performance in order to report current news or to teach;

-Photographing or televising shaping work, architectural, photographic, or applied art work displayed at a public place in order to present images of such work;

-Translating a work into braille or other languages for the blind;

-Importing copies of another’s work for personal use.

However, it should be noted that organization or individual using, exploiting works in above cases must meet the conditions: not causing damage to the normal exploit of works, not causing damage to copyright and owner of copyright; must provide information of  the author and the source and origin of the work. In addition, due to specific characteristics of of various types of works such as architectural works, shaping works and computer programs, cases of (i) making one copy for scientific research or personal teaching purposes and (ii) copying of a work in order to archive in library and research purposes, shall have permission and pay author or owner of copyright for royalties, remuneration according to both parties’ agreement or regulation of law.

Cases of using published works without having permission but paying for royalties, remuneration include:

-A broadcasting organization which uses a published work to make a broadcast which is sponsored, contains an advertisement or which collects fees in any form shall not be required to ask permission but must pay the owner of copyright for royalties or remuneration from using time. Level of royalties, remuneration or other material benefits and payment methods are agreed by parties; If the agreement can not be reached, it shall follow regulation of Government or shall file a petition to Court according to regulation of law;

-A broadcasting organization which uses a published work to make a broadcast which is not sponsored, no advertisement or which do not collect fees in any form shall not be required to ask permission but must pay the owner of copyright for royalties or remuneration from using time according to regulation Government;

Similarly, the use of a work in these two cases must neither affect the normal use of such works nor cause prejudice to the rights of the author or copyright holder, and must provide information being the author’s name and the source and origin of the work. Besides, in case of using published work without having to seek permission but royalties or remuneration must be paid shall not be applied to cinematographic works.

If the client needs any other information, requires for further legal advice, or dispute with others on IP matters, our Vietnam IP attorney, copyright lawyers in Vietnam at ANT Lawyers, we will be available for service.

ANT Lawyers - a Law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

 

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What are Languages in Arbitration Proceedings in Vietnam

According to Article 10 of Vietnam Law on Commercial Arbitration, language used in arbitration proceedings resolving dispute is Vietnamese if both parties are Vietnamese or foreign language as agreed by parties if one of the parties is foreign owned enterprise.  In particular:

 

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For disputes involving no foreign element, the language to be used in arbitral proceedings is Vietnamese, except disputes to which at least one party is a foreign-invested enterprise. When a disputing party cannot use Vietnamese, it may use an interpreter.

For disputes involving foreign elements or disputes to which at least one party is a foreign-invested enterprise, the parties shall reach agreement on the language to be used in arbitral proceedings. If they have no such agreement, the arbitration council shall decide on the language to be used in arbitral proceedings.

ANT Lawyers - a Law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

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How to Apply for Birth Certificate for Newborn in Vietnam

For children of foreigner and Vietnamese born in Vietnam, the procedure to apply for birth certificate in Vietnam is carried out at the Vietnam’s provincial Department of Justice.

In today’s globalized world, it has become more common that people from different cultural backgrounds travel, and meet their spouse.  Their children were born with happiness however they would face difficulties when applying for birth certificate for the newborn in Vietnam.  For the parents, the difficulties of registering birth certificate in Vietnam could range from the choice of name, nationality, or whether or not the child is born out of wedlock.

When a child between a foreigner and a Vietnamese is born in Vietnam, according to the regulation on the registration and management of civil status, the Department of Justice will be the Vietnam government agency issuing the birth certificate.

In cases where parents choose foreign nationality for the child, they must obtain the agreement of the parents about the choice of nationality. The valid agreement of the parents about the choice of nationality shall be certified by the local authority.

After receiving a application dossier for birth certificate for newborn in Vietnam, civil status officials of the Department of Justice records in the birth registration and original birth certificate. The director of the Department of Justice shall sign and issue an original birth certificate for the newborn.  Copies of birth certificates are issued at the request of the applicant.

For children born out of wedlock, if the father is not identified, the information about the father in the birth registration book and birth certificate are left blank. When the father officially agrees to recognize father for a child, he has to carry out the procedure at the Vietnam’s provincial Department of Justice.  The birth certificate could also be revised to reflect the father’s details into the new birth certificate.  This birth certificate will be very important when the father applies foreign citizenship for the child.

The child can be named according to parental choice to be recorded on the birth certificate.

ANT Lawyers - a Law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

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How Violations of Fundamental Principles Causes Annulment of Arbitral Awards?

Arbitration award is final and binding upon the parties. The arbitral award takes effect from the date of its issuance and is not subject to appeal and protest which is a feature of dispute resolution through commercial arbitration. Therefore, the regulations on annulment of arbitral award should be carefully implemented to closely monitor these awards, ensure compliance with the laws and protect the interests of the parties involved. This is an important matters to discuss when lawyers specializing in dispute through commercial arbitration encounter when requested by the client to assist the enforcement of the arbitral awards under Vietnam laws.

 

Annulment of arbitral award also known as setting aside is means that the Court as a juridical authority is entitled to review such award upon request of parties in dispute in case there is a ground proving that the arbitral award belongs to one of the annulment cases under the laws. The competent court to take this action is the provincial court of locality at which the parties agree or at which the Arbitral tribunal given the award.

An arbitral award in contrary to the fundamental principles of Vietnam laws is one of five grounds to set aside. The Court is responsible for verifying and collecting evidences to determine whether or not to annul the arbitral award; the requesting party is responsible for other grounds.

Fundamental principles of Vietnam laws are the basic principles impacting the formation and implementation of Vietnam laws. Each law or code contains those principles on its own. Arbitration awards are respected by laws, however within the boundary permitted by laws to not infringe the interests of concerned parties and the national interests, which has been mostly referred to by the court.

When reviewing a request for annulment of arbitral award, the court shall determine whether the award violates any fundamental principle and how such principle concerns or bind the dispute settlement of arbitrator. The court shall set aside an arbitral award in case it contains decisions in contrary to any fundamental principle of Vietnam laws which are not abided by arbitral tribunal upon issue of the arbitral award and the arbitral award seriously infringe upon the interest of the state, the lawful rights and interests of either party or parties, third parties.

In order to apply this fundamental principle ground, the Court may review the application of substantive law decided by the Arbitral Tribunal, as such, the Court may review legal issues of case. In the meantime, Vietnam Courts are not entitled to review the substantive matters resolved by the arbitral tribunal when reviewing request of requesting parties, the Courts are permitted to refer annulment cases stipulated by laws and evidences proving its conclusion. Therefore, the above restriction conflicts with the ground which is annulment of arbitralawards caused by violation of fundamental principles of Vietnamese laws. In fact, to consider whether or not to violate the fundamental principles, the Courts seem to review the substantive matters of dispute to make an argument for its decision.

Hence to improve the efficiency and judicial system under Vietnam laws, it is expected that the fundamental principle ground to cause annulment arbitral award of arbitrator should be instructed in more detail in Vietnam laws to improve the independence of the Arbitral Tribunal and avoid the Vietnam Court trying to re-resolve the substantive matters.

ANT Lawyers – Arbitration law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

 

 

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