Chương IV Nghị định 22/2017/NĐ-CP hòa giải thương mại: Tổ chức hòa giải thương mại

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.

Article 19. Commercial mediation centers

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.

Article 21. Procedures for establishment of commercial mediation centers

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.

2. A dossier for operation registration of a commercial mediation center 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 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;

d/ Starting time of the center’s operation.

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

1. A commercial mediation institution has the following rights:

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;

c/ To issue its own codes of ethics and conduct applicable to commercial mediators;

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;

b/ The branch’s establishment decision issued by the center.

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.

3. Within 20 days from the effective date of the Ministry of Justice’s written approval of the change of the head-office address of a commercial mediation center from a province or centrally run city to another, the center shall register operation with the provincial-level Department of Justice of the locality where its new head office is located. The order and procedures for operation registration must comply with Clauses 2 and 3, Article 22 of this Decree.

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.

If establishing its representative office outside a province or centrally run city where it has registered its operation, the commercial mediation center shall send a notice thereof to the provincial-level Department of Justice of the locality where its representative office is established and provincial-level Department of Justice of the locality where it has registered its operation.

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.

Within 7 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 that has granted the operation registration certificate to the commercial mediation center shall issue a decision to revoke such certificate.

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.

5. An arbitration center shall terminate commercial mediation activities in the following cases:

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;

b/ The center terminates operation under Clause 1, Article 31 of this Decree;

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.