1/11/2025

1 Dispute Settlement Mechanisms

& Mid-term Exam Summary
Asso.Prof. Dang Minh Tuan
VNU School of law – Vietnam National University

2 CONTENTS
1. Dispute settlement mechanisms
2. Mid-term summary
3 Dispute settlement mechanisms
at international level
I. Settlement of dispute through Diplomacy
1.1. Negotiation
A process of reaching an agreement by discussion.
Normal diploma channels
Competent authorities
Mixed or joint commissions
Summit meetings

4
Normal diplomatic channels: Consultation under WTO Dispute Settlement
• Article 3(3) of the DSU (Dispute Settlement Understanding) provides that on request parties shall
enter into consultations in good faith within a period of no more than 30 days after the date of
receipt of the request. According to article 3 (7), if such consultations fail, the establishment of a
panel may be requested.

5
• Competent authorities
Transfer pricing is one of the many complex tax issues that multinational corporation face.
Transfer pricing is one of the most significant tax issues being considered at a global level by
governments, tax administrations and international bodies such as the Organization for Economic
Cooperation and Development (OECD) and EU.
The competent authorities’ function seeks to resolve international pricing disputes through
negotiations with tax authorities of treaty partner jurisdictions.

6
• Summit meetings:
Summit meetings’ are defined as ad hoc meetings where heads of state and/or heads of
government and/or foreign ministers from at least 2 of the big powers are present.

7
1.2. Mediation
The use of 3rd party who transmits and interprets the proposals of the principle parties
Only occur when all the parties to a dispute consent to it
• 1.2. Mediation
• The use of 3rd party who transmits and interprets the proposals of the principle parties.
• Good offices: mediators provide a channel of communication only

1
 1/11/2025

• Conciliation: mediators make a formal investigation and present a formal proposal

8
• 1.3. Inquiry
• A process used to determine a disputed fact(s), which focus only in a particular incident.
• In the early 1900s, Russia was in conflict with Japan. Russian fleets (Hạm đội) were directed to
beware of torpedo boats (Tàu phóng ngư lôi) disguised as fishing boats. One dark night in the
North Sea, the Russian fleet saw a green rocket shot into the sky. The rocket was fired by a group
of British fishing boats and was a directional indication from the leader of the fishing expedition to
others in the expedition. Russian lookout men saw the fishing boats but thought they looked
suspicious, and were potentially torpedo boats. The Russian fleet opened fire, killing 2 fishermen
and causing severe damage to the fishing fleet.
• Great Britain wanted to bring the Russian admiral to trial. Russia did not want to submit its
admiral to a British trial, but eventually agreed to submit the question of liability and punishment
to the Permanent Court of Arbitration. The commissioners hearing the inquiry were 5 admirals,
from Great Britain, Russia, the United States, France, and Austria.

9 II. Settlement of Dispute in international tribunals

• 2.1. International Court of Justice
• Functions: The ICJ has a dual role: to settle in accordance with international law the legal disputes
summited to it by states, and to give advisory opinions on legal questions referred to it by duly
authorized international organs and agencies.
• Composition: The ICJ is composed of 15 judges elected to nine-year terms of office by the United
Nations General Assembly and Security Council sitting independently of each other.
• Jurisdiction: two kinds of cases, (1) those between states and (2) those requested by organs or
specialized agencies of the UN.

10
• 2.2. International Criminal Court
• The ICC is an independent, permanent court of last resort that tries persons accused of the most
serious crimes effecting the international community.
11 Dispute settlement mechanisms
at national level
• Conciliation (Self conciliation or by a local committee of conciliation – Ban hòa giải cơ sở)
• Trials by courts (civil, commercial, administrative, criminal justice)
• Settlement of complaints and denunciations through administrative procedures
• Q: Which mechanisms are better?

12
Mid-Term Summary

13 Sample
• 8 Multiple-Choices: 0.5/right answer – 4 points
• 2 short essays: 3 max/answer – 6 points

14 Structure of an essay
• Introduction (definition; background; question and your point of view): 0.5 point
• Discussion (presenting your points of view with arguments by using theories, practices, context of
country; comparison with other countries, international law…): 2 points

2
 1/11/2025

• Conclusion and further development: 0.5 point

•
15
Essay 1
Distinguish between the role of President in the Parliamentary system and Presidential system
16 Introduction
Around the world, many forms of government are running. In leading countries, there are two
predominating forms of governments, which are Parliamentary system and Presidential system.
Both forms of governments, for most of the case, has the President. From my own opinion,
Presidents in Presidential System have more executive power than those in Presidential System.

17 Discussion
• In Presidential system, Presidents have executive power. They are directly elected by the people via
a nation-wide voting. Another distinct characteristics of President in Presidential system is that, as
Presidents belong to the Executive branch, they are seperated from the legislative branch in the
system. The Presidents do not derive their power from the Legislative branch. Plus, based on
"Check and Balances" principle, both branches have different powers to prevent the other branch
from being to powerful, which is not the case in Parliamentary system. One famous example of
the Presidential system is the US, in every four year, there is a nation-wide system to choose the
President, and the Paliarment is not the only one who directly appoint the President.

18 Discussion
• Meanwhile, in Parliamentary system, the President plays a more statutory and ceremonial role. The
executive role is assumed by the head of governement, namely the Prime Minister. He/she is
elected by the parliament and accountable before the parliament. In this system, the Executive
and the Legislative branches are more closely linked. The Germany's form of Government is one
example. President was ellected by a small group of people, and his role was more resembling the
Monarch in the UK, rather than similar to the President in the US. And it is the current German
Prime Minister, with his Cabinet, that lead the whole country.
•

19 Conclusion
• To conclude, the President in the Paliarmentary system is more ceremonial and less executive than
one in the Presidential system. Whereas, the Legislative and Executive branches in the Presidential
system are more seperate.

20
Essay 2
In the case "Vietnam police forced a woman to test for Covid-19 in Binh Duong", many legal
experts argued that the rule of law was violated. Some others thought that the governmental
measures used in this case were necessary for prevention from the spread of the Covid-19. Discuss
both views and give your opinion

21 Introduction
Rule of Law has long been an idealistic concept of how the legal system should function in a
civilized society. Like many other countries in the world, Vietnam is also a rule of law state. However,
the nation's overall rule of law ranking is still insignificant, around 85th place out of 128 countries.

3
 1/11/2025

In Vietnam, there are still some cases where the violation of rule of law has been put into question.
Notably, the case "Vietnam police forced a woman to test for Covid-19 in Binh Duong" has stired
up many debates. Some argued that the rule of law was breached; whereas, other claim that the
police action is accepted in case of urgent Covid19 situation. From my own opinion, although the
emergency argument is understandable, the rule of law in this case is clearly violated.

22 Discussion
On the one hand, the case was the obvious violation of the rule of law. Firstly, one essence of "Rule
of Law", which is "Absence on the arbitrary power on the part of the government", has been ignored
in Binh Duong's woman case. The police still abused their power to force the woman, without any
approval of the law. In this case, they have determined the law, not be determined by law, which is
totally against the "Rule of Law". Secondly, Supremacy of Law, namely "No man is punishable or can
lawfully be made to suffer in body or goods except for a distinct breach of law established in the
ordinary manner before the ordinary courts of the land", is also violated. The woman should be
presumed innocent and no one can inflict pain to her body until she is proved guilty in the court. In
this case, the woman was punished even when she had not been proved guilty. For these two
reasons, the Rule of Law was absent in this case.

23 Discussion
On the other hand, the violation is understandable in case of emergent Covid-19 situation. If the
woman is not tested timely, she could spread the virus to many more people. Meanwhile, a trial
might take time to proceed. If the police wait until then to take action, it would be too late to
prevent the Covid19 viruses. This sense of emergency has made the police more rushed in their
approaches, which then turned into aggressive and more or less violant action. However, the
emergency cannot justify for the violation of "Rule of Law". If a nation has recognized itself as "Rule
of Law" state, it has to fully obey the principles. No one can be above the law and no exception can
be made. This is essential to keep the law equal and just for everyone. The Binh Duong case can be
solved by streamlining the trial procedure to be faster and leaner, not by ignoring the presence of
the court and the police taking whatever actions they want.

24 Conclusion
In conclusion, I believe that the Bind Duong case was the clear violation of the "Rule of Law". Apart
from this case, there are also many other cases around Vietnam that have not been reported onto
the social media. This is also the reason why Vietnam's "Rule of Law" ranking is so low compared to
its international peers. In order to enhance its ranking, Vietnam has to strictly follow principles of
"Rule of Law" and execute "Responsiblity, Openess and Transparency". Cases where Rule of Law is
violated, like this one, should be equally punished, regardless of status in society or local
community.