In the business sector, commercial disputes are inevitable. Participation in litigation proceedings requires in-depth legal knowledge and practical experience in dispute resolution. Therefore, the demand for legal assistance, particularly from lawyers, has become increasingly necessary and prevalent. Below, NPLaw respectfully invites readers to explore the legal issues related to legal assistance in commercial litigation.
In the business sector, commercial disputes are inevitable. Participation in litigation proceedings requires in-depth legal knowledge and practical experience in dispute resolution. Therefore, the demand for legal assistance, particularly from lawyers, has become increasingly necessary and prevalent. Below, NPLaw respectfully invites readers to explore the legal issues related to legal assistance in commercial litigation.
I. Demand for legal assistance in commercial litigation
In business practice, commercial disputes are occurring with increasing frequency and complexity, especially those involving contracts, payments, investments, or breaches of obligations between parties. Consequently, the need for legal assistance in commercial litigation has become essential for both enterprises and individuals. Resolving disputes before courts or arbitral tribunals requires a thorough understanding of substantive law, procedural rules, advocacy skills, and the ability to protect legitimate rights and interests.
In this context, the support of lawyers or legal experts not only helps disputing parties prepare complete and accurate dossiers and documentation, but also provides effective dispute resolution strategies, minimizes legal risks, and enhances the likelihood of success in litigation. This is why an increasing number of organizations and businesses proactively seek professional legal assistance from the moment a commercial dispute arises.
II. Legal regulations on legal assistance in commercial litigation
1. What constitutes legal assistance in commercial litigation?
A commercial dispute refers to conflicts or disagreements arising between parties during the course of business or commercial activities.
Legal assistance in commercial litigation comprises legal activities aimed at helping individuals or enterprises protect their lawful rights and interests during the dispute resolution process.
2. Common types of commercial disputes
Common types of commercial disputes currently include:
- Disputes arising from contracts for the sale of goods;
- Disputes arising from service contracts;
- Disputes relating to agency, entrusted trading, or brokerage contracts;
- Disputes over investment cooperation or business cooperation contracts (BCC);
- Disputes concerning intellectual property rights;
- Disputes in international payment transactions.
3. Jurisdiction over commercial dispute resolution
Pursuant to Article 5 of the Law on Commercial Arbitration of Vietnam 2010, a dispute may be resolved by arbitration only if the parties have entered into an arbitration agreement. The key principles of this provision include:
- Arbitration has jurisdiction only when there is a valid arbitration agreement between the parties;
- The arbitration agreement may be established before or after the dispute arises.
Article 2 of the Law on Commercial Arbitration 2010 provides that arbitration has jurisdiction over the following disputes:
- Disputes arising from commercial activities between parties;
- Disputes in which at least one party engages in commercial activities;
- Other disputes that are permitted by law to be resolved by arbitration.
In addition, Article 31 of the Civil Procedure Code 2015 stipulates business and commercial claims that fall under the jurisdiction of the courts.
Pursuant to Articles 6 and 11 of Decree No. 22/2017/ND-CP, parties may agree to resolve disputes through commercial mediation, which may be established as a contractual clause or as a separate written agreement. Such agreement may be made before, after, or during the occurrence of a dispute.
Accordingly, competent authorities for resolving commercial disputes include commercial arbitration, competent courts, and commercial mediation institutions.
III. Questions regarding legal assistance in commercial litigation
1. In what capacities may lawyers participate in resolving commercial disputes?
Lawyers may participate in resolving commercial disputes in the following capacities:
- As protectors of the lawful rights and interests of individuals or legal entities (pursuant to Article 76 of the Civil Procedure Code 2015);
- As authorized representatives throughout the litigation process (where a valid power of attorney is granted);
- As legal advisors during negotiation, mediation, or out-of-court settlement processes;
- As drafters of statements of claim, counterclaims, and other relevant legal documents.
2. May a company fully authorize a lawyer to participate in resolving a commercial dispute?
Pursuant to Clause 1, Article 85 of the Civil Procedure Code 2015, representatives in civil proceedings include legal representatives and authorized representatives. Furthermore, Clause 4, Article 85 of the same Code provides that authorized representatives under the Civil Code are recognized as authorized representatives in civil proceedings.
Accordingly, a company (organization) may authorize a lawyer to act as its authorized representative in civil proceedings, including commercial disputes, provided that:
- There is a valid power of attorney (a written authorization signed by the company’s legal representative, affixed with the company seal, and notarized if required);
- The lawyer is lawfully licensed to practice and holds a valid lawyer’s practicing certificate.
3. How does a lawyer assist in preparing litigation dossiers for commercial disputes?
A lawyer will assist in preparing litigation dossiers for commercial disputes by:
- Advising on litigation or defense strategies;
- Drafting statements of claim, counterclaims, petitions, and requests for suspension or termination of proceedings;
- Collecting and reviewing evidence, including contracts, invoices, acceptance minutes, emails, and payment documents;
- Legalizing documents, translating, and notarizing materials where necessary;
- Preparing evidence lists and legal arguments for presentation before courts or arbitral tribunals.
4. How can legal assistance from a lawyer affect the outcome of commercial litigation?
Legal assistance from a lawyer can significantly affect the outcome of commercial litigation because:
- Lawyers help identify and correctly apply relevant legal provisions, thereby avoiding procedural errors that may result in the loss of rights;
- Lawyers possess experience in negotiation and mediation, enabling optimal solutions and potentially favorable settlements outside of court;
- Lawyers enhance the likelihood of success or achieving a fair judgment through well-structured legal arguments and clear litigation strategies.
5. What costs may arise from legal assistance in commercial litigation that should be anticipated?
Pursuant to Articles 55, 56, and 58 of the Law on Lawyers 2006 and Article 19 of Decree No. 123/2020/ND-CP, legal assistance in commercial litigation may give rise to the following costs:
- Lawyer’s fees;
- Travel and accommodation expenses of the lawyer;
- Other reasonable expenses (printing, documentation, certified copies, etc.).
6. May a lawyer represent me at court hearings related to commercial litigation if necessary?
Article 76 of the Civil Procedure Code 2015 clearly stipulates the rights and obligations of protectors of lawful rights and interests of litigants (including lawyers), including:
- The right to participate in proceedings from the initiation stage through all stages of adjudication, including enforcement proceedings;
- The right to collect and copy case files, submit documents and evidence, and file written legal defense statements with the court;
- Participation in mediation sessions, meetings, and court hearings, or submission of written opinions if unable to attend in person;
- Acting on behalf of litigants to exercise procedural rights when duly authorized;
- Providing legal assistance to litigants and receiving court notices and documents when authorized;
- Enjoying all procedural rights of participating parties, including the right to lodge complaints, request evidence collection, and propose the summoning of witnesses.
Accordingly, where necessary, a lawyer may fully represent a litigant in court proceedings related to commercial litigation.
IV. Legal advisory services on legal assistance in commercial litigation
The above is NPLaw’s article on legal assistance in commercial litigation. With a team of experienced lawyers and legal consultants, NPLaw is always ready to accompany, advise, and support clients in legal matters related to commercial litigation. Should you require legal assistance, please contact NPLaw immediately.
