From 3-9 February, 2018, at the United Nations Headquarters, New York, PhD., Lawyer Le Dinh Vinh - Director of Vietthink Law Firm cum VIAC Arbitrator has attended the 68th session of Working Group II of the United Nations Commission on International Trade Law (UNCITRAL). The session aims at discussing the Draft Convention of the United Nations on Enforcement of International Commercial Settlement Agreements Resulting from Mediation.The session attended by Member States of UNCITRAL, observer states, international organizations and non-government organizations (NGOs) all over the globe. The Vietnamese Delegation led by Mr. Nguyen Van Thuan - Deputy Chief Justice of the Supreme People's Court, accompanied by representatives from the Supreme People's Court, the Vietnam International Arbitration Center (VIAC) and the Ministry of Foreign Affairs.
Following the well-deserved achievement of the Convention on the Recognition and Enforcementof Foreign Arbitral Awards (New York, 1958), it is a concerted attempt to develop the United Nations Convention on International Mediation that the international community has as yet made to establish an effective legal instrument as well as a framework for enforcementof international commercial settlement agreements resulting from mediation (the“Settlement Agreement”). The adoption of this instrument is of critical importance in the context that the number of commercial dispute settlements has been increasingly used in domestic and international commercial practice as an alternative to litigation. According to the United Nations, the use ofthe dispute settlement through mediation results in significant benefits, such as reducing the instances where a dispute leads to the termination of acommercial relationship, facilitating the administration of international transactions by commercial parties and producing savings in the administration of justice by States.
After undertaking work on the preparation of instruments on enforcement of international settlement agreements resulting from mediation, consisting of a draft convention and draft amendments to the UNCITRAL Model Law onInternational Commercial Conciliation, Working Group II of UNCITRAL has eventually finalized the official Draft Convention. At the 68th session, the delegations jointly focused on the key issues such as: the Scope of the Convention; the form and conditions of application for recognition and enforcement of the dispute settlement agreement; the legal grounds for Member States to refuse the application for enforcement of the Settlement Agreement; reservation rights of Member States when accessing to the Convention; theinvolvement of regional economic integration organizations in the Convention,etc.
One of the issues of greatest concern is the Scope of the Convention. According to the Draft Convention, the Convention is purported to solely apply to international agreements resulting from mediation. The difficulty, however, lies in definition of “International Settlement Agreement” so as not to improperly minimize the Scope of the Convention nor to contravene the law of States as well as related international conventions (such as the New York Convention 1958). Although the Draft Convention provides the definition of the "International Settlement Agreement", many States reasoned that the definition as modelled in the Draft Convention is broad and rather ambiguous, hence, it is suggested to be more specific and clear to avoid any expansion of interpretation of the concept by concerned parties and to arbitrarily apply the Convention accordingly in practice.
Another issue that many states concerned about is the grounds for the Contracting States to refuse applications for enforcement of the Settlement Agreement in their own state, which is considered an important factor to determine the effectiveness of the Convention in practice yet an extremely difficult matter to deal with. Mediation itself is a very open mechanism both for the way it is conducted and the recognition of the outcome of the Settlement Agreement, especially in the context that the Settlement Agreement is generally subject to different jurisdiction, different systems of law and local customs as well. So, the question is in which way one Member State, known as the Contracting State where enforcement is sought, can assess/ verify the legality of the Settlement Agreement signed by Parties in another Contracting State to enforce it. And how to guarantee the enforcement of the Convention to be legally effective yet remain consistent and compliant with domestic and international principles in the recognition and enforcement of the Settlement Agreement.
Attending this Session, the Vietnamese delegation listened to and shared their views with the representatives of other countries and international organizations, actively discussing and contributing ideas to improve the content of the Draft Convention. The contribution of the Vietnamese delegation expresses the sense of responsibility of a Member State to the international community and reflects the conscious protection of national interests and public interests when Vietnam officially accesses to this Convention as an official Member State.
During attending the 68th Session, the Vietnamese Delegation has paid a working visit to the headquarters of the Permanent Mission of Viet Nam to the UN. Ambassador Nguyen Phuong Nga, Head of the Permanent Mission of Viet Nam to the UN, has extended awarm welcome to the Vietnamese Delegation. In this working visit, Mrs. NguyenPhuong Nga has informed the Delegation of the operation status of theVietnamese Permanent Mission to the UN, of the fruitful cooperation between thePermanent Mission of Vietnam and the UN, as well as between the PermanentMission of Vietnam and representatives of other State Members and internationalorganizations in the UN, of the state of living and working of overseasVietnamese in New York. Mrs. Nga has also taken this opportunity tocongratulate the Delegation on a successful business trip to New York City.
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