When a dispute arises, the competent authorities shall encourage and give an opportunity for the disputing parties to negotiate themselves or conciliate.  However, conciliation is not a mandatory procedure for settling disputes in all cases.  In  this article, we will provide you with specific cases that require conciliation as a mandatory condition in dispute settlement. 

For labor disputes 

Except specific labor disputes (such as a dispute over labor discipline in the form of dismissal or unilateral termination of a labor contract; dispute over compensation for damage or allowance upon termination of a labor contract; etc.), most labor disputes, whether individual  or collective labor disputes, must be settled through the conciliation procedures before being brought to the labor arbitration councils or courts for settlement or carrying out the procedures for a strike as prescribed by law. 

The statute of limitations for conciliating is 6 months counting from the date of discovery of an act which is claimed by either of disputing parties to infringe upon its/his/her lawful rights. 

The labor conciliation procedures are prescribed by law as follows:  

• Upon receipt of a conciliation request, the labor conciliator shall hold a conciliation meeting with the participation of both disputing parties or their authorized representatives.  The conciliator must complete the conciliation within 05 working days after receiving a conciliation request from a disputing party. 

• At the meeting, the conciliator shall guide and assist the parties in conducting negotiation for settlement of the dispute as well as recommend conciliation plan(s) to the parties for consideration.  In case the parties can reach an agreement or the parties agree with the conciliation plan, the conciliator shall make a record of the successful conciliation.  If not, the conciliator shall make a record of an unsuccessful conciliation.  

• Except for cases which are not required to go through conciliation procedures, for the remaining cases, the labor dispute shall be brought to the labor arbitration councils or courts for settlement or the disputing parties shall carry out the procedures for a strike, only if either party fails to implement the agreements stated in the record of successful conciliation, or unsuccessful conciliation, or the conciliator fails to conduct the conciliation within the time limit for conducting conciliation as prescribed by law. 

For land disputes 

Firstly, the State shall encourage the disputing parties to conciliate between themselves or have their land disputes settled through conciliation procedures.  In case the self-reconciliation fails, the parties may send a petition to the commune-level People’s Committee of the locality where the disputed land is located for reconciliation.  The conciliation procedures carried out at the commune-level People’s Committees shall be completed within 45 days from the date the commune-level People’s Committees receive a petition for the settlement of land dispute. 

The order and procedures for conciliation of land disputes are prescribed as follows: 

• Upon receiving a written request for settlement of a land dispute, the provincial-level People’s Committee shall verify and learn about the cause of the dispute, collect relevant documents about the land origin, the land use process and current land use status from the parties.  After that, the People’s Committee shall establish a council for conciliation of land disputes to carry out conciliation.  

• A conciliation meeting shall take place with the participation of the disputing parties, members of the council for conciliation of land disputes and persons with related interests and obligations. 

• The conciliation may take place only when all the disputing parties are present. If any of the disputing parties are absent for the second time, the conciliation shall be regarded as unsuccessful. 

• The result of conciliation of a land dispute, whether successful  or unsuccessful,  must be recorded in minutes which must be signed by the head of the conciliation council, the disputing parties present at the conciliation session and participants in the conciliation, and sealed by the commune-level People’s Committee.  

• If the parties express in writing opinions different from the contents agreed in the minutes within 10 days after the date of making minutes of successful conciliation, the chairperson of the commune-level People’s Committee shall organize another meeting of the conciliation council to consider and handle supplementary opinions and create conciliation minutes.  Please note that in case there are any changes in the boundaries or land users, the successful conciliation shall be the basis for a submission by the disputing party to the competent authorities to issue or amend the land certificate. 

• In case of an unsuccessful conciliation or of a successful conciliation but at least one party changes its opinion on the conciliation result, the commune-level People’s Committee shall create minutes of an unsuccessful conciliation and guide the disputing parties to file a petition with a competent agency to further settle the dispute. 

Business and commercial disputes 

Conciliation in business or commercial disputes is not a mandatory  procedure before a party may bring the dispute to the Courts or Arbitration for settlement; unless a separate agreement or  a conciliation clause in a contract has been signed by the parties.  Specifically, if there is a clear agreement in the contract that should the parties fail to reach an agreement during the conciliation procedures, the dispute shall be brought to competent Court or Arbitration for settlement.  

Conciliation as mentioned in this paragraph includes agreements where the parties may conciliate for themselves or through a third-party intervention (commercial conciliator) to assist in settling the dispute.  The procedure for carrying out a commercial conciliation is prescribed as follows: 

• Involved parties shall reach an agreement on selecting one, or more than one, commercial conciliator of a commercial conciliation institution.  For the conciliation rules, the involved parties may select to apply a commercial conciliation institution’s rule or they may reach a separate agreement on the conciliation order and procedures. 

• The venue and time of the conciliation may be agreed upon by the involved parties or selected by the commercial conciliator in case the parties can reach no agreement thereon. 

• During the conciliation process, the commercial conciliator may put forth proposals for dispute resolution.  When attaining a successful conciliation result, the involved parties shall make a written record thereof.  A written record of a successful conciliation result shall be recognized in accordance with the civil procedure law. 

• If unable to attain a successful conciliation result, the involved parties may either continue the conciliation or request an Arbitration or a Court to settle their dispute in accordance with the law. 

The above contents contain regulations related to cases requiring conciliation as a mandatory procedure for dispute settlement.  The parties need to be aware of these regulations upon any dispute which may arise, as the statement of claim/application to settle the dispute shall be returned by Courts/Arbitration because of failure to carry out the conciliation procedure.  Moreover, the parties may possibly lose the right to institute a civil case because it has exceeded the statute of limitations for requesting conciliation in accordance with the law.

If you have any questions or concerns about the cases requiring conciliation in dispute settlement, please contact our experienced attorneys at info@letranlaw.com