| 摘要: | 使用投資者與地主國爭端解決（Investor-To-State Dispute Settlement, ISDS）機制或調解方式以解決投資爭端在世界上已成爲趨勢，越南亦不例外。截至2019年之前，越南簽署國際條約不少，其中多半均納入ISDS機制或調解方式，此點將有助於外國投資者有更多之選項以解決爭議。然而在多年實務運作之後，ISDS機制已出現若干缺點，如仲裁判斷不一致性、無上訴機制、仲裁人不夠獨立等，因此新的機制因而誕生。相較之下，兩者最不同之處在於制定二級機制，即是除了初審法庭外，該機制尚新增上訴機制，此舉降低因無上述機制而導致仲裁判斷不一致性之風險。雖然理論上新的機制可彌補ISDS的缺點，然而實務上是否有不足之處，仍未知數。
此外，除了國際仲裁外，商務調解方式亦為選項之一。2017年之前，越南商務調解制度停滯不前，相關規定形同具文。除了得透過調解以解決爭議之規定之外，關於調解程序之進行或調解人之標準等無明文規定。然爲了因應國際化時代，越南政府提出應對措施，以彌補上述不足之處。於2017年，越南政府公佈第22/2017/NĐ-CP議定，同時，隔一年成立越南調解中心，並公佈其調解規則。足見，目前不論關於個案調解或機構調解，越南均已有完善而達到國際標準之相關規定。
The use of Investor-state dispute settlement (ISDS) or Mediation mechanism to resolve investment disputes is become a trend in around the world, and VietNam is no exception . As of 2019, The Vietnamese governmnent has signed a number of International Treaties that are included ISDS or mediation, This will help foreign investors have more options to resolve disputes. However, over many years , ISDS has been criticised for several reasons, such as Inconsistent of arbitration Awards, lack of mechanism appeal, and lack of independence and impartiality of arbitrators, etc.Thus a new mechanism was established by the EU.
By contrast,The most different point between this new System and ISDS is the establishment of a two-stage mechanism, which has a new appeal mechanism, and It is also reducing the risk of inconsistency of arbitration awards.. In summary, the new mechanism can make up for the shortcomings of ISDS in theory, but it is still unknown in practice.
Moreover , In addition to International arbitration, Commercial mediation is also a good option In order to resolve disputes. Before 2017, Mediation is very new in VietNam, VietNam's Commercial mediation system is not perfect.In addition to the provision that allow the parties use mediation to resolve their disputes, VietNam's legal system still lack framework and specific guidelines on the procedures of mediation or the standards of meditor. After 2017, the VietNam government enacted new rules on the use of mediation, that make up for these shotcoming. For example: On February 24,2017, The Vietnam Government promulgates the Decree No. 22/2017/ND-CP on commercial mediation that set out the scope, principles, order and procedures for disputes resolution through commercial mediation. Furthermore, in the following year, the Vietnam Mediation Center was established ,which is a division of the Vietnam International Arbitration Centre ,and also is the first organization in VietNam providing professional commercial mediation services under decree 22. Thus, regarding ad hoc mediation and mediation institutions, Vietnam has created a sound legal framework for the development of mediation in VietNam, that meet international standards. |
