ABSTRACT:
The legal regulationon online w88 link w88 moi nhat is rooted in the framework of w88 link w88 moi nhat law combined with its online characteristics, thereby creating distinct features of online w88 link w88 moi nhat compared to traditional w88 link w88 moi nhat. Therefore, when formulating regulations governing online w88 link w88 moi nhat, legislators need to pay attention to these characteristics. In addition to the existing legal provisions on w88 link w88 moi nhat, the issues ofonline w88 link w88 moi nhatagreement, confidentiality, privacy, standards and skills of mediators when resolving disputes online need to be addressed.
Keywords:commercial w88 link w88 moi nhat, online w88 link w88 moi nhat, legal regulations.
1. Introduction
Commercial activities are increasingly developing with various new and complex forms. This leads to trade disputes that are constantly increasing in both quantity and value. The types of commercial disputes are also increasingly diverse, requiring non-traditional dispute resolution methods. With the rapid rise of the Internet emerging as a borderless market, commercial activities have been and still are trending toward the online environment. Thus, commercial dispute settlement must also gradually follow this trend with the emergence of Online Dispute Resolution, that is, dispute resolution based on the Internet environment with the development of electronic engineering, intangible technology and information technology.
In Vietnam, w88 link w88 moi nhat has been established based on cultural factors in business activities of traders and has been regulated under Article 312 of the Commercial Law 2005. However, until 2017, the Government promulgated Decree No. 22/2017/ND-CP on commercial w88 link w88 moi nhat. This is an important legal basis to promote the development of w88 link w88 moi nhat activities in Vietnam, in line with the development trend of the world. Besides, along with Law on E-transactions, the Civil Procedure Code 2015 has numerous provisions to support the online dispute resolution, implying that the application of online w88 link w88 moi nhat will be a new tendency in Vietnam in the near future.
Nevertheless, in Vietnam, the issue of commercial dispute resolution by means of online w88 link w88 moi nhat is still quite new in terms of theory, practice and legal regulations. This article studies the law on online w88 link w88 moi nhat; on that basis, some recommendations will be proposed for the development of the law on w88 link w88 moi nhat in Vietnam.
2. The concept of online w88 link w88 moi nhat and the legal regulations on online w88 link w88 moi nhat
The concept of w88 link w88 moi nhat is defined in many national and international legal documents but there has not been any legal document stipulating the definition of online w88 link w88 moi nhat. The concept of online w88 link w88 moi nhat is mainly introduced from the point of view of researchers.
According to Lawson, “online w88 link w88 moi nhat” is a form of w88 link w88 moi nhat in which two mediators use electronic means such as emails, online messages, online calls or video conference calls instead of using common methods of communication such as face-to-face meetings or telephones1. Meanwhile, Ethan Katsh and Janet Rifkin identify online w88 link w88 moi nhat as part of online dispute resolution, a voluntary process in which disputes between parties are facilitated to be resolved by a third party called a mediator in order to reach a mutual agreement2. According to Gergely L. Snzoke, online w88 link w88 moi nhat can be understood as a w88 link w88 moi nhat process where information technology and remote dialogue are applied in part or in whole. Therefore, online w88 link w88 moi nhat is a special type of w88 link w88 moi nhat method as well as a form of online dispute resolution3.
To sum up, online w88 link w88 moi nhat can be understood as the use of online formats as mentioned above in part or in whole of the w88 link w88 moi nhat process. Besides, information technology elements integrated into the online w88 link w88 moi nhat process do not compromise the nature of the w88 link w88 moi nhat. Perhaps, the issue at stake is the method of communication between disputing parties, between intermediaries and related parties.
The development of w88 link w88 moi nhat in general and online w88 link w88 moi nhat in particular in the world as well as in Vietnam in order to meet the needs of dispute resolution in commercial activities is the basis for the state to issue regulations governing this social relationship. Based on the concepts of law and online w88 link w88 moi nhat, it can be understood that the law on online w88 link w88 moi nhat is “a system of legal norms promulgated or recognized by the State to govern w88 link w88 moi nhat relationships of arising disputes through online means”.
3. Features of the legal regulations on online w88 link w88 moi nhat
The legal regulations on w88 link w88 moi nhat will have the combined characteristics of the law on w88 link w88 moi nhat and the law on electronic transactions, therefore it will have the following characteristics:
First,the process of forming the legal norms on online w88 link w88 moi nhat originates from the development of information technology and the Internet: w88 link w88 moi nhat has existed in the world for a long time and been applied in many fields such as marriage and family, labor, commerce. Legal norms on w88 link w88 moi nhat have also evolved in line with this development, with adjustments for each area. However, online w88 link w88 moi nhat was solely applied when the Internet emerged4, helping people to communicate through the online environment; thus, it created a way of w88 link w88 moi nhat implemented on online platforms and in order to develop and implement this method, the legal regulations governing electronic transactions in general and legal relationships in online w88 link w88 moi nhat in particular have been established.
Second,the regulations on online w88 link w88 moi nhat must be based on the choice of the parties: w88 link w88 moi nhat is the voluntary dispute resolution method; therefore, when w88 link w88 moi nhat is implemented in the online environment, this feature remains unchanged. This option belongs to the parties before a dispute occurs until a final result is reached.
Third,the disputes are resolved by online w88 link w88 moi nhat, including both online and offline: Although online w88 link w88 moi nhat origins from the need to resolve e-commerce disputes5, with the development of technology, online w88 link w88 moi nhat applies not only to online disputes but also to offline disputes. Hence, the regulations on online w88 link w88 moi nhat will be adjusted to be applicable to online as well as offline dispute settlement.
Fourth,the legal regulations on the subjects of online w88 link w88 moi nhat will be more diverse: w88 link w88 moi nhat is the dispute resolution method with the participation of a third party, but in an online environment, there are the fourth party and the fifth party which are the network service provider and the technology provider respectively6. The legal regulations governing the subject of online w88 link w88 moi nhat will cover all parties involved in this dispute settlement process.
Fifth,regulations on online w88 link w88 moi nhat have to create amiability and flexibility among the parties: The basis of w88 link w88 moi nhat is to create a friendly and comfortable space so that the disputing parties can continue to find one common voice together; therefore, the regulations on online w88 link w88 moi nhat will not be binding, creating flexibility to involved parties.
Sixth,there must be strict regulations on cyber security, safety and confidentiality: The principle of security has been stipulated under the w88 link w88 moi nhat law; however, when being implemented in the online environment, this principle might be violated by hackers. Meanwhile, the information can be converted into data messages or information transmitted by analog technology, which cause potential risks such as system crash, technical malfunction, data loss or data theft for other purposes. Therefore, regulations on cyber security, safety and confidentiality should be focused on under the legal regulations on online w88 link w88 moi nhat.
Seventh,regulations on online w88 link w88 moi nhat should aim to harmonize international law: Due to the practical importance of online w88 link w88 moi nhat in the settlement of commercial disputes in general and cross-border e-commerce dispute activities in particular, the legal system governing online w88 link w88 moi nhat will have to create harmonization of international law in order to facilitate the implementation of successful w88 link w88 moi nhat decisions.
4. Contents of the legal regulations on online w88 link w88 moi nhat
Based on the characteristics of the legal regulations on online w88 link w88 moi nhat, the content of the legal regulations on online w88 link w88 moi nhat will include the following issues:
- Method of signing, storage, form and content of online w88 link w88 moi nhat agreements: The w88 link w88 moi nhat agreement is an important legal basis for the parties and competent mediators to participate in the dispute settlement process. As for the online w88 link w88 moi nhat, the agreement can be made in writing or by electronic means; thus, regulations on the online w88 link w88 moi nhat agreement must stipulate the method of signing, storage and electronic forms of this agreement. The usual content of online w88 link w88 moi nhat agreement should incorporate issues related to the online environment, which may include the fee for video conferencing or teleconference and accepted and binding methods of signing documents7.
- Regulation on privacy of online w88 link w88 moi nhat: As for w88 link w88 moi nhat, it is important to clearly distinguish between information security, data security, system security and user privacy. Therefore, it is necessary to have regulations on the responsibility of information security and privacy for the parties participating in the online w88 link w88 moi nhat. Especially, the focus on online system security is the most crucial aspect since it determines the trust of customers for the online w88 link w88 moi nhat service that they are using, even if it is the system operated by the machine that performs the task of w88 link w88 moi nhat or human beings behind it8.
- Mediators and related parties in w88 link w88 moi nhat: The mediators expertise, skills and ethics in the online w88 link w88 moi nhat process are decisive in each dispute. It is because of this importance that the law on online w88 link w88 moi nhat needs to stipulate the necessary criteria and conditions for mediators, in which it is needed to focus on training mediators when participating in w88 link w88 moi nhat. Regulations on the rights and obligations of other subjects including disputing parties, network service providers and technology providers are also specifically regulated to ensure the ability to carry out this process.
- Online w88 link w88 moi nhat process: As a dispute resolution mechanism based on the choice of the parties, the w88 link w88 moi nhat process is very flexible, depending on the established w88 link w88 moi nhat centers, so the provisions of the law only should be oriented, creating a basis to help these centers build an appropriate information communication process.
- Management organization and duties of online w88 link w88 moi nhat centers: In order to provide online w88 link w88 moi nhat services, service providers must meet the requirements of management organization, human resources and technology. Therefore, the law on online w88 link w88 moi nhat needs to have specific regulations and standards for online w88 link w88 moi nhat centers.
- Evidence in online w88 link w88 moi nhat: In online w88 link w88 moi nhat, in order to achieve a successful outcome, the parties need to exchange and provide mediators with a variety of documents, digital photos, emails or opinions, etc. This information will be subsequently checked, verified and stored by the online w88 link w88 moi nhat centers as evidence for commercial w88 link w88 moi nhat. However, this exchange of information may face various barriers due to the involuntary consent of the parties. For example, the parties are concerned that the documents provided or their business secrets, may be exposed. To alleviate this concern, it is necessary to have specific regulations regarding the confidentiality as well as the possibility of not being accepted as evidence of information, and documents provided in the online w88 link w88 moi nhat procedure will need to be specified.
- Recognition and enforcement of decisions of online w88 link w88 moi nhat: The online w88 link w88 moi nhat decisions can be made in writing or by a data message signed by the mediators and the parties. If the successful w88 link w88 moi nhat decision is made in writing, there are specific regulations guiding its recognition and enforcement; nevertheless, if the successful w88 link w88 moi nhat decision is presented in electronic form, these decisions will face some difficulties or require specific regulations to be recognized as legally enforceable9. In addition, in the case of decisions with foreign elements, the requirement for the harmonization of the law on recognition and enforcement of online w88 link w88 moi nhat decisions in the form of messages is necessary to be supplemented.
5. Several proposals for building legal regulations on online w88 link w88 moi nhat in Vietnam
Hitherto, Vietnamese legal system has not had any specific regulations on online w88 link w88 moi nhat; yet, based on regulations on commercial w88 link w88 moi nhat and e-transactions, online w88 link w88 moi nhat activities are still being implemented in Vietnam, although there are also legal loopholes. Therefore, in order to develop the online w88 link w88 moi nhat system in Vietnam, it is necessary to promulgate and improve the following legal regulations:
- Improving the law on commercial w88 link w88 moi nhat: In order to develop online w88 link w88 moi nhat, first, there is a need for improving the legal regulations on commercial w88 link w88 moi nhat, in which it is necessary to raise the importance of commercial w88 link w88 moi nhat by establishing an independent statute to broaden the scope of w88 link w88 moi nhat. Second, it is vital to suspend the calculation of the statute of limitations for initiation of a lawsuit as recommended by the UNCITRAL Model Law on International Commercial w88 link w88 moi nhat as well as to develop the regulation on confidentiality obligations when participating in w88 link w88 moi nhat. In addition, regulations on training mediators and w88 link w88 moi nhat centers must be supplemented; and summary procedures in the procedure for recognizing the results of successful w88 link w88 moi nhat outside the court must also be regulated.
- Perfecting the law on electronic transactions: It is necessary to issue specific regulations guiding the entry into electronic contracts, which is a legal framework for the prevention of possible disputes in e-commerce transactions. Supplement regulations on the collection and storage of electronic evidence to protect the legitimate rights and interests of parties participating in e-commerce activities.
- Improving regulations on online w88 link w88 moi nhat: Although w88 link w88 moi nhat is still being implemented in Vietnam, the absence of specific regulations on online w88 link w88 moi nhat will make the parties hesitant in choosing this method as well as increase the online participation confirmation procedures and processes of the parties. Therefore, there should be specific regulations on this method to create trust for the parties as well as the legal basis for online w88 link w88 moi nhat to develop.
- Providing standards for mediators participating in online w88 link w88 moi nhat: As skills for online dispute resolution will be different from skills in face-to-face w88 link w88 moi nhat, it is necessary to supplement regulations on requirements for mediators participating in online w88 link w88 moi nhat. Mediators must have information technology skills and online w88 link w88 moi nhat skills. These requirements can be fulfilled by specifying the number of training hours and training content for the mediator.
- Providing standards of online w88 link w88 moi nhat centers: In Vietnam, some w88 link w88 moi nhat centers have implemented online w88 link w88 moi nhat such as Vietnam International Commercial w88 link w88 moi nhat Center (VICMC), w88 link w88 moi nhat Center Vietnam (VMC), Hanoi International Arbitration Center (HIAC); however, there is an absence of standards related to information security procedures when applying online w88 link w88 moi nhat, especially specifying concrete responsibilities of the centers to keep information confidential during the online w88 link w88 moi nhat process.
- Improving regulations for certifying websites providing online w88 link w88 moi nhat services: With the development trend of w88 link w88 moi nhat, different w88 link w88 moi nhat centers have been established, as well as the websites of companies and electronic marketplaces. E-commerce also has online w88 link w88 moi nhat functions. Nonetheless, it is demanded to have a mechanism to supervise and evaluate the activities of websites providing online w88 link w88 moi nhat services to protect consumers.
- Building an online system for recognition and enforcement of successful w88 link w88 moi nhat decisions: Although online w88 link w88 moi nhat is applied, the process of recognition and enforcement of w88 link w88 moi nhat decisions will be difficult due to the absence of regulations on the online system on recognition and enforcement of successful w88 link w88 moi nhat decisions; for example, the procedure for online submission of minutes of successful w88 link w88 moi nhat, confirmation of electronic signatures of the parties, payment of court fees via the Internet. Therefore, in order for online w88 link w88 moi nhat to truly become a closed online process, regulations on recognition and enforcement of online w88 link w88 moi nhat decisions need to be promulgated such as building an electronic court system. In addition, Vietnam also needs to actively promote the process of joining international treaties on commercial w88 link w88 moi nhat, such as the Singapore Convention on w88 link w88 moi nhat, in order to progress towards the recognition and enforcement of cross-border online w88 link w88 moi nhat decisions.
ENDNOTE:
1Lawson, P. (2002). Disputes in cyberspace: online dispute resolution for consumers in cross-border disputes - an international survey. Canada: Consumers International.
2Ethan Katsh & Janet Rifkin. (2001). Online Dispute Resolution: Resolving Conflicts In Cyberspace, San Francisco: Jossey-Bass, pp. 56
3Gergely L. Snzoke. (2008). How (not) to Regulate w88 link w88 moi nhat the Effects of the Strict Hungarian Provisions on Online w88 link w88 moi nhat. Masaryk U. J.L. & Tech., 147, 149-150.
4E. Katsh (1996). Dispute Resolution in Cyberspace, [Online] Avalabile at https://www.umass.edu/legal/ articles/uconn.html
E.C. Lide (1996). ADR and Cyberspace: The Role of Alternative Dispute Resolution in Online Commerce, Intellectual Property and Defamation. Ohio State Journal On Dispute Resolution, 12(1), 193-221.
5Pablo Cortés. (2010). Online Dispute Resolution for Consumers in the European Union. Oxfordshire, United Kingdom: Taylor & Francis.
6Faye Fangfei Wang. (2009). Online Dispute Resolution: Technology Management and Legal Practice from an International Perspective. Oxford: Chandos, pp.29
7For more on preparing for e-w88 link w88 moi nhat, see S. Jani & C. Getz, (2010). Mediating from a Distance: Suggested Practice Guidelines for Family. [Online] Avalabile at https://www.mediatebc.com/sites/default/files/ Guidelines_Mediating-from-a-Distance-%28Second-edition%29_0.pdf
8Ebner & Zeleznikow. (2015). Fairness, Trust, and Security in Online Dispute Resolution. Hamline Journal of Public Law and Policy, 36(2), 142-160.
9Tran Phuong Anh. (2021). The issue of recognition and enforcement of online arbitral awards - provisions of international and Vietnamese law, presentation at the seminar on current legal status, practical application on resolving commercial disputes by arbitration, online w88 link w88 moi nhat organized by the Institute of Legal Sciences in 2021.
REFERENCES:
- S. Jani & C. Getz. (2010).Mediating from a Distance: Suggested Practice Guidelines for Family.Victoria, BC, Canada: Mediator Roster Society.
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[Tạp chí Công Thương - Các kết quả nghiên cứu khoa học và ứng dụng công nghệ, Số 4, tháng 3 năm 2022]