Current Status of Legal Regulations on Protecting the Right to Freedom of Dispute in Resolving Economic Disputes

In addition to administrative sanctions, criminal law also has provisions to protect the freedom to establish businesses: the law strictly prohibits entities from trading in prohibited items such as drugs, weapons, etc. The Criminal Code specifically stipulates crimes and penalties if entities intentionally trade in these items. In addition, criminal law also stipulates crimes that violate economic management order, such as: smuggling, illegal transportation of goods and currency across borders, production and trade of counterfeit goods, illegal business, etc. If business entities violate the prohibitions of the law and their actions satisfy the signs prescribed in the Criminal Code, they will be subject to strict sanctions by law.

2.1.3. Current status of legal regulations on protecting the right to freedom of decision in resolving economic disputes

According to current law, the forms of dispute resolution in current law of our country include: Mediation; negotiation; dispute resolution by commercial arbitration; through the Court.

- Dispute resolution method by conciliation

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“Conciliation is a form of dispute resolution with the participation of a third party as an intermediary, helping the disputing parties find a suitable solution to end the conflicts that have arisen” [9, p. 144]. Basically, conciliation and negotiation are similar in the way they are conducted. The fundamental difference is the third party as an intermediary. The third party is mutually accepted or appointed by the disputing parties, and has the role of making suggestions for the parties to refer to, in order to find a common solution that is acceptable to all parties. The third party must be independent of the disputing parties, meaning that it is not in a position of conflict or of binding interests to one or more of the disputing parties.

In the 2003 Civil Procedure Code, apart from some types of cases that do not require mediation, mediation is a mandatory procedure when resolving civil disputes. Article 10 of this Code specifically stipulates mediation as follows: "The court is responsible for conducting mediation and creating favorable conditions for the parties to reach an agreement on the resolution of civil cases according to the provisions of this Code" [36]. In resolving civil cases, mediation is considered the responsibility of the litigation agency.

Clause 2, Article 317 of the Commercial Law also stipulates: "Reconciliation between the parties is conducted by an agency, organization or individual agreed upon by the parties to act as a mediator" [42]. In addition, the 2003 Land Law stipulates that for disputes in the land sector, mediation at the grassroots level is a necessary measure. Specifically, Article 135 stipulates: "The State encourages parties to land disputes to reconcile themselves or resolve land disputes through mediation at the grassroots level". In the 2005 Investment Law, the top priority for resolving disputes in the investment sector is mediation: "Disputes related to investment activities in Vietnam shall be resolved through negotiation, mediation, arbitration or court in accordance with the provisions of law" [43].

Thus, conciliation is a measure encouraged by law and required by business entities to apply when there is a dispute. In fact, this form is very popular, especially in our country which is heavily influenced by Buddhism, Confucianism and the tradition of village self-management, and that tradition is expressed quite clearly in the provisions of law.

- Dispute resolution by negotiation

“It is a form of dispute resolution in business without the need for a third party. The parties in the dispute often seek each other to discuss and find suitable solutions to end conflicts and disagreements” [9, p. 143]. In disputes, no third party can understand the source as well as the parties in the dispute. Originating from the will of

The disputing parties want to resolve the conflicts by coming together to negotiate and compromise.

Negotiation is a suitable form for resolving business disputes. The advantage is that it is not bound by any rigid legal procedures. Negotiation depends entirely on the ability and negotiation skills of the parties. Negotiation is the least expensive method, the parties in the dispute will find a way to resolve it themselves, causing little damage to the relationship of the parties, and business secrets are absolutely protected.

- Commercial arbitration

In practice, to resolve commercial and investment disputes, the disputing parties can apply many methods. The following forms of dispute resolution can be listed: self-negotiation, conciliation, requesting a judicial agency to resolve or resolving the dispute through arbitration. Each method has its advantages and disadvantages. The parties will often base on these advantages and disadvantages to consider and choose for themselves the most appropriate and effective dispute resolution mechanism.

If for our country's businessmen, choosing arbitration to resolve disputes is not considered a popular choice, simply because our businessmen have not put their full trust in arbitrators, nor have they fully appreciated the effectiveness of dispute resolution by arbitration and the enforcement of arbitration decisions, especially domestic arbitration, on the contrary, in the practice of resolving commercial and investment disputes in the world, the arbitration mechanism is applied very often and tends to develop more and more strongly. Normally, when using arbitration to resolve disputes, businessmen and investors often pay attention to the advantages of this mechanism compared to the dispute resolution procedure in court. Based on the provisions of the Law on Arbitration

According to the 2010 Commercial Law and the provisions of law related to court proceedings, it can be seen that resolving disputes by Commercial Arbitration will have many advantages such as: the finality and validity of the arbitration award is broader than that of the Court, ensuring confidentiality, preserving partnership relations, besides, Arbitration is also a flexible and adaptable dispute resolution mechanism...

- Dispute resolution method by court

Accepting the market economy means complying with the rules of fierce competition, under the rapid development of the economy, there are a series of contradictions and conflicts of economic interests between business entities that are increasingly fierce. Responding to the requirements arising from practice, to resolve disputes, the law must play a role in ensuring the maintenance of order in society. Previously, our law regulated the settlement of civil disputes and economic disputes in two different ordinances. That is the Ordinance on procedures for resolving economic cases dated March 16, 1994 and the Ordinance on procedures for resolving civil cases dated November 29, 1989. Currently, it has been unified in the Civil Procedure Code. According to the regulations, the judicial body, specifically the Court, will resolve disputes and requests of the parties including the following areas: civil, marriage and family, commercial business, and labor.

The advantage of the court proceedings is that the procedures are strict, following mandatory procedures, through two trials: first instance and appeal. The judgment and decision are declared in the name of the state, and are guaranteed to be implemented by the coercive power of the state if the parties do not voluntarily comply. However, besides that, court proceedings have disadvantages for businesses: the right to self-determination of the parties in some aspects is limited, such as not being able to freely choose judges, courts, etc. The trial period is prolonged because it must follow the procedural procedures, the principle of public trial is difficult to ensure confidentiality for the disputing parties; the nature of dispute resolution is often more stressful than arbitration.

2.1.4. Current status of legal regulations on protecting freedom of contract

- The law recognizes the right to freedom of contract.

Based on the nature of the contract is an agreement, from the perspective of everyday life, the contract is the parties themselves defining their rights and obligations to each other, so the parties can freely express their will in concluding the contract. The law or any individual cannot use their will to force another subject to enter into a contract, but it must come from the true desire of the parties to create legal values. Article 4 of the 2005 Civil Code stipulates that freedom of agreement is one of the principles of civil law. This principle has been generally recognized, covering all civil legal relationships, which are agreement and freedom of commitment. The law allows the parties to freely establish rights and obligations with each other, after legally establishing them, they are binding on the parties to respect and seriously implement. From this general principle, Article 389 of the Civil Code specifically stipulates the principles in concluding civil contracts for the subjects participating in the contract to base on and implement:

Article 389. Principles of entering into civil contracts

The conclusion of civil contracts must comply with the following principles:

1. Freedom to enter into contracts but not contrary to law or social ethics;

2. Voluntariness, equality, goodwill, cooperation, honesty and integrity [39].

In addition to providing principles to protect the right to freedom of contract, current law also stipulates cases where civil transactions are invalid due to violations of legal prohibitions or social ethics:

Article 128. Civil transactions are invalid due to violation of legal prohibitions or social ethics.

Civil transactions with purposes and contents that violate the prohibitions of law and social ethics are invalid.

Legal prohibitions are provisions of law that do not allow subjects to perform certain acts.

Social ethics are common standards of conduct between people in social life, recognized and respected by the community [39].

Basically, this principle is understood as follows: the contract is freely entered into by the participating subjects in the spirit of voluntariness, equality, goodwill... but must not violate the law. Prohibitions of the law are often clearly stipulated in many different documents. Simply put, the subjects participating in the contract are allowed to enter into contracts within the scope of the law that is not prohibited. For example, the law prohibits the sale of weapons, prohibits the sale of human organs... then the subjects do not have the right to make contracts related to things that are not permitted by law. On the other hand, social ethics are common standards widely recognized in the community, and are protected by long-standing cultural values. The regulation that the contract must not violate prohibitions and social ethics aims to protect the common interests of the whole society, and cannot violate public order for personal interests.

The right to freely enter into contracts is also reflected in the fact that the law expands the subjects who have the right to enter into contracts. Any subject with full civil capacity has the right to enter into contracts. Subjects participating in contract conclusion can be individuals, cooperatives, legal households, etc. In some cases, individuals who do not have full civil capacity are still recognized as subjects in civil transactions. Clause 2, Article 20 of the 2005 Civil Code stipulates:

2. In case a person from fifteen years old to under eighteen years old has his/her own property to secure the performance of obligations, he/she may establish and perform civil transactions by himself/herself without the consent of a legal representative, unless otherwise provided by law [39].

- Freedom to choose partners

The freedom to enter into a contract is only a formality if the contracting parties are not free to choose their partners (or customers) in the contractual relationship. When establishing a contractual relationship, the first important thing that the contracting party is concerned with is who to enter into a contract with, and what capacity that person has for the performance of the contract to be entered into [9, p. 112].

According to the provisions of current civil law, subjects have the right to freely choose partners, the law does not interfere with who the subject will sign the contract with, individual or organization (only need the participating subject to satisfy some conditions on civil capacity). On the other hand, the law strictly prohibits threats, coercion, and deception in concluding contracts. The law allows business subjects to base on their own needs to choose and seek partners, putting the goal of respect and freedom of will first in choosing business partners.

- Freedom to negotiate on form

The form of a civil contract is understood as the way to express the will of the subjects participating in the contract in a certain material form.

The freedom to agree on the form of the contract stipulated in civil law clearly shows that the subjects participating in the contract can choose different forms to determine rights and obligations:

Article 401. Forms of civil contracts

1. A civil contract may be concluded orally, in writing or by specific conduct, when the law does not stipulate that such type of contract must be concluded in a certain form.

2. In cases where the law stipulates that a contract must be expressed in a notarized or certified document, must be registered or licensed, such provisions must be complied with.

The contract is not invalid in case of formal violation, unless otherwise provided by law [39].

Thus, according to the above provisions of law, civil contracts will be concluded orally or in writing if the law does not provide otherwise. For example, the transportation of inter-provincial passengers by road is expressed by specific acts in which the vehicle owners bring the passengers to the station and then the customer will pay. In fact, the passengers and the vehicle owners have entered into a transportation contract with each other. In fact, contracts that require control are often related to real estate, valuable assets, mortgage contracts, guarantees, etc.

- Protect the right to freely agree on the content of the contract

“The content of the contract is all the terms that the parties agree to in the contract” [9, p. 113]. It is natural to give the subjects the right to negotiate the contract. The subjects have the right to agree with each other on price, payment method, time, place of payment, time of delivery, time of arising of rights and obligations, time of conclusion, the law also recognizes the contract as valid in the future... Freedom to agree on the content of the contract is a part of the expression of freedom of will, when the will of the parties is expressed through the provisions in the contract, that is, the participating parties themselves draft the law for each other and are forced to seriously implement those

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