*Lawyer Tran Canh Hien, Phong & Partners Law Firm in Ho Chi Minh City, replied:

Apartments are one of the essential goods and services that are required by law to register sample contracts and general transaction conditions before entering into contracts. Although the terms in these contracts have often been thoroughly and fully reviewed by competent state agencies, they still express the will and optimize the interests of the goods and service supplier because they are the party drafting  and registering the application of the contract form. Therefore, the rights of consumer are still somewhat limited.

Regarding the dispute resolution clause, according to the provisions of the Commercial Arbitration Law, disputes can only be resolved by Arbitration Center if the parties have a written agreement to resolve it at Arbitration Center instead of the Court when the issue arises and in such cases, the Court must refuse to accept if one party initiates a lawsuit at the Court, except in cases of invalid or impossible Arbitration Center agreement.

Compared to resolution at Court, Arbitration Center are known as a "service" dispute resolution with many advantages over Courts. Along with this quality of "service", the Arbitration Center fee is often higher than the fee at the Court. Because of the difference in such fees and the confidential nature due to the Arbitration Center 's principle of no public trial, many real estate companies choose and fix the Arbitration Center for dispute resolution in contracts and documents signed with customers, in order to create additional barriers for customers in case of disputes . Perhaps fixing this dispute resolution by Arbitration Center is also a way for real estate companies to more easily negotiate with customers in case ofdisputes, because customers will understand that they can only sue to request dispute resolution at the Arbitration Center according to the content recorded in the contract signed, there is no other method of suing. Therefore, customers will be afraid of the costs incurred when requesting dispute resolution and will thereby minimize the possibility of real estate companies being sued.

Similar to the case Mr. Vu encountered, it is a common understanding that Mr. Vu can only sue to request dispute resolution at the Arbitration Center according to the content of the contract prepared by Company X that most buyers accept. However, to protect the interests of customers, the law has specific provisions in Article 38 of Law on Consumer Rights Protection: "Organizations and individuals trading in goods and services must notify arbitration clause before entering into a contract and obtaining consent from the consumer. In case the arbitration clause is included in the form contract or general transaction conditions by an organization or individual trading in goods or services, when a dispute arises, the consumer has the right to choose the other dispute resolutions".

Similar to this content, Article 17 of 2010 Commercial Arbitration Law also stipulates: "For disputes between suppliers of goods and services and consumers, although arbitration clauses have been recognized in the general conditions for supply of goods and services in the arbitration agreement prepared by the supplier, the consumer still has the right to choose Arbitration or Court to resolve the dispute. The suppliers of goods and services are only entitled to sue at Arbitration if approved by the consumer".

Inconsistency in choosing an authority to resolve disputes between customers and suppliers of goods and services in this situation is determined that the arbitration agreement cannot be implemented and the competent Court has mayresolve as requested by the customer. This content is guided in Clause 5, Article 4 of Resolution No. 01/2014/NQ-HDTP dated March 20, 2014, specifically as follows:

“Article 4. Arbitration agreement cannot be implemented as stipulated in Article 6 of Commercial Arbitration Law.

An unenforceable arbitration agreement specified in Article 6 of Commercial Arbitration Law is an arbitration agreement in one of the following cases:

5. Suppliers of goods and services and consumer have provisions on arbitration agreements recorded in the general conditions of supply of goods and services prepared by the supplier specified in Article 17 of Commercial arbitration law, but when a dispute arises, the consumer does not agree to choose arbitration to resolve the dispute".

In such a case, if any dispute arises during the contract performance, Mr. Vu still has the right to choose to file a lawsuit against Company X at the Arbitration Center or the competent Court to protect his legal rights and interests.

The article was published in Da Nang Police Newspaper on June 13, 2024.