Chương II Nghị định 22/2017/NĐ-CP hòa giải thương mại: Hòa giải viên thương mại

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;

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

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.

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.

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.

2. A commercial mediator has the following obligations:

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.

3. Receiving or demanding any sum of money or benefit from involved parties in addition to remuneration and costs already agreed upon.

4. Other prohibited acts as prescribed by law.