Circular No. 40/2010/TT-BCT dated December 13, 2010 of the Ministry of Industry and Trade on order and procedures for settlement of disputes in the power market

CIRCULAR

ON ORDER AND PROCEDURES FOR SETTLEMENT OF DISPUTES IN THE POWER MARKET

Pursuant to the Governments Decree No. 189/2007/ND-CP of December 27, 2007, defining the functions, tasks, powers and organizational structure of the Ministry of Industry and Trade;

Pursuant to the December 3, 2004 Electricity Law; and the Government s Decree No. 105/ 2005/ND-CP of August 17, 2005, detailing and guiding a number of articles of the Electricity Law;

At the proposal of the director of the Electricity Regulatory Authority of Vietnam,

The Ministry of Industry and Trade provides the order and procedures for settlement of disputes in the power market as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular provides the order and procedures for the settlement of the following disputes in the power market:

1. Disputes related to electricity trading contracts and supportive service provision contracts between power units, except foreign-involved contracts.

2. Other disputes in the generation, transmission, distribution, wholesale and retail of electricity, regulation of the power system and administration of power market transactions.

Article 2. Subjects of application

This Circular applies to:

1. Power units.

2. Organizations and individuals that think their lawful rights and interests are infringed upon by power units.

3. The dispute settling agency.

Article 3. Interpretation of terms

In this Circular, the terms below are construed as follows:

1.Requesting partymeans a power unit or an organization or individual that requests dispute settlement when believing that its/his/ her rights and interests are infringed upon.

2.Requested partymeans a power unit which, according to the requesting party, infringes upon the latter s rights and interests.

3.Dispute settling agencymeans the Electricity Regulatory Authority of Vietnam under the Ministry of Industry and Trade.

Article 4. Statute of limitations for dispute settlement

The statute of limitations for settlement of the disputes specified in Article 1 of this Circular is one (1) year after the commission of an act which, according to a party, infringes upon its lawful rights and interests, except in force majeure circumstances.

Article 5. Dispute settlement order

1. When a dispute specified in Article 1 of this Circular occurs, disputing parties shall negotiate to settle the dispute themselves within sixty (60) days.

2. Past the time limit specified in Clause 1 of this Article, if the two parties fail to settle their dispute, either or both of them may refer the case to the Electricity Regulatory Authority of Vietnam for settlement according to the order and procedures provided in this Circular.

Article 6. Dispute settlement principles

1. Disputes shall be settled according to the order and procedures provided in this Circular and relevant laws.

2. Disputes related to signed electricity trading contracts or supportive service provision contracts shall be settled in accordance with these contracts.

3. Disputes related to power operation licenses shall be settled in accordance with those licenses granted to power units.

Article 7. Settlement of disputes with signs of law violation

When settling a dispute and detecting that it has signs of law violation, the Electricity Regulatory Authority of Vietnam shall handle it according to its competence or transfer the dossier to a competent authority for handling under law.

Article 8. Termination of dispute settlement

1. The Electricity Regulatory Authority of Vietnam shall terminate the settlement of a dispute when:

a/ The requesting party withdraws its dispute settlement petition;

b/ The requesting party is absent at the dispute settlement meeting even though it is invited to this meeting for the second time or it leaves this meeting without the meeting chairperson s consent;

c/ The parties agree to terminate the dispute settlement;

d/ The dispute falls into the case defined in Article 7 of this Circular;

e/ Either party or both parties submits/submit the dispute to another competent authority for settlement.

2. The Electricity Regulatory Authority of Vietnam shall issue a notice of dispute settlement termination to parties, clearly stating the reason.

Article 9. Information provision responsibilities

Organizations and individuals involved a dispute shall cooperate and provide necessary information related to the dispute at the request of the Electricity Regulatory Authority of Vietnam.

Chapter II

RIGHTS AND RESPONSIBILITIES IN DISPUTE SETTLEMENT

Article 10. Tasks and powers of the director of the Electricity Regulatory Authority of Vietnam

1. To seek assessment at the request of one party or parties under dispute.

2. To invite experts to the dispute settlement.

3. To terminate the settlement of a dispute under Article 8 of this Circular.

4. To chair dispute settlement meetings. When absent, to authorize a deputy director of the Electricity Regulatory Authority of Vietnam to chair these meetings.

5. To settle complaints about decisions on dispute settlement or dispute settlement termination.

Article 11. Tasks and powers of a dispute-handling officer

1. To request disputing parties to explain about and provide dispute-related documents and evidence.

2. To keep confidential dispute contents unless he/she must provide information for competent state agencies under law.

3. To preserve provided documents.

4. To refuse to handle a dispute when he/she has dispute-related rights, interests and obligations or is the parent, spouse, child or sibling of a lawful representative of a disputing party.

5. To act as the secretary of dispute settlement meetings.

6. To take responsibility before law and the director of the Electricity Regulatory Authority of Vietnam for the performance of his her tasks and powers.

Article 12. Rights and obligations of requesting and requested parties

1. To assign their representatives at law or authorized representatives to the dispute settlement meeting.

2. To produce lawful evidence to protect their lawful rights and interests.

3. To request change of the dispute-handling officer when detecting that such officer has rights, interests and obligations related to the dispute or is the parent, spouse, child or sibling of a lawful representative of a disputing party.

4. To request assessment.

5. To request invitation of witnesses.

6. To request invitation of experts.

7. To modify or withdraw the dispute settlement petition or counter-petition before the Electricity Regulatory Authority of Vietnam issues a dispute settlement decision.

8. To implement dispute settlement decisions.

Chapter III

DISPUTE SETTLEMENT ORDER AND PROCEDURES

SectionI.DOSSIER PROCESSING

Article 13. Dispute settlement dossiers

1. The requesting party shall submit a dispute settlement dossier to the Electricity Regulatory Authority of Vietnam. A dossier comprises:

a/ A dispute settlement petition;

b/ The record of unsuccessful negotiation or conciliation or documents proving the dispute cannot be conciliated;

c/ A notarized copy of the contract, for a dispute related to an electricity trading contract or a supportive service provision contract; a written agreement between parties on request for dispute settlement by the Electricity Regulatory Authority of Vietnam, if such contract docs not provide dispute settlement by the Electricity Regulatory Authority of Vietnam;

d/ A valid copy of the power operation license (when the requesting party is a power unit);

e/ Valid copies of documents and evidence proving grounds and the lawfulness of the dispute settlement request;

f/ Commitment that the dispute is not yet referred to a court or commercial arbitration for settlement.

2. A dispute settlement petition must contain the following details:

a/ Date of making the petition;

b/ Names, addresses and relevant information of parties;

c/ Briefing of the dispute;

d/ Claims of the requesting party;

e/ Claimed damages (if any).

Article 14. Processing of dispute settlement dossiers

1. Within five (5) working days after receiving a dispute settlement dossier, the Electricity Regulatory Authority of Vietnam shall check the validity of the dossier and issue a notice of dossier processing to the requesting party,

2. For an invalid dossier, the Electricity Regulatory Authority of Vietnam shall issue a notice of dossier supplementation to the requesting party. The time limit for dossier supplementation is fifteen (15) working days after the Electricity Regulatory Authority of Vietnam s notification. When the requesting party makes a written request, the Electricity Regulatory Authority of Vietnam may extend the dossier supplementation not more than ten (10) working days past the above time limit.

Article 15. Counter-petitions

1. A requested party- may lodge a counter-petition against the requesting party s claims. The requested party shall send such petition to the Electricity Regulatory Authority of Vietnam and the requesting party at the same time it sends its written explanation.

2. The requesting party shall send its written response to the counter-petition to the Electricity Regulatory Authority of Vietnam and the requested party within twenty (20) working days after receiving such counter-petition.

3. Claims under the requested party s counter-petition shall be handled in the meeting to settle the requesting party s dispute settlement petition.

4. A counter-petition which is filed beyond the time limit specified in Clause 1 of this Article or is not related to the requesting party s claims shall be considered and settled as another dispute.

Article 16. Non-processing of dispute settlement dossiers

1. A dispute settlement dossier shall not be processed when:

a/ The statute of limitations for requesting dispute settlement has expired;

b/ The Electricity Regulatory Authority of Vietnam has no authority to settle the dispute;

c/ The dispute has been brought to a commercial arbitration or court for settlement or it has been settled under an effective judgment or decision of a commercial arbitration or court;

d/ The involved parties have not negotiated to settle the dispute themselves under Clause 1, Article 5 of this Circular;

e/ The requesting party fails to supplement its dossier within the time limit specified in Clause 2, Article 14 of this Circular, as requested by the Electricity Regulatory Authority of Vietnam;

f/ The requesting or requested party fails to advance funds for dispute settlement under Clauses 1 and 2, Article 32 of this Circular.

2. The Electricity Regulatory Authority of Vietnam shall issue a notice to the requesting party clearly stating the reason for not processing the dispute settlement dossier.

Section 2. STUDY AND VERIFICATION OF CASES

Article 17. Assignment of dispute-handling officers, notification to requested parties

1. Within two (2) working days after receiving a complete and valid dossier, the director of the Electricity Regulatory Authority of Vietnam shall assign an officer to handle the dispute.

2. Within five (5) working days after receiving a complete and valid dossier, the Electricity Regulatory Authority of Vietnam shall send to the requested party a notice of the dispute together with copies of the requesting party s dispute settlement petition and enclosed documents.

Article 18. Explanations of parties

1. Within twenty (20) working days after receiving the requesting party s dispute settlement petition and enclosed documents sent by the Electricity Regulatory Authority of Vietnam, the requested party shall send its written explanation together with supporting documents to the Electricity Regulatory Authority of Vietnam.

When the requested party needs to extend the explanation time, it shall send a written request clearly stating the reason to the Electricity Regulatory Authority of Vietnam. Such extension must not exceed ten (10) working days.

2. A written explanation must contain the following principal details:

a/ Date of making the explanation;

b/ Name and address of the requested party;

c/ Justifications, arguments and analysis for self-defense.

3. A requested party that fails to give its explanation shall be regarded as accepting the requesting party s dispute settlement petition.

Article 19. Study of dossiers, verification of cases

1. A dispute-handling officer shall study a dispute dossier based on the dispute settlement petition, enclosed documents and evidence and written explanations of involved parties.

2. A dispute-handling officer may conduct field study and examination, and meet involved parties to hear their opinions and shall make a record clearly indicating the meeting time and place, full names and addresses of the parties, verifications, and opinions of the parties, and read this record before the parties and request them to sign it.

3. After conducting dossier study and verification, a dispute-handling officer shall submit to the director of the Electricity Regulatory Authority of Vietnam a summary report which clearly states verified details and evidence and proposes a settlement plan.

Article 20. Request for assessment

1. The director of the Electricity Regulatory Authority of Vietnam may issue a decision on request for assessment at the request of either or both disputing party/parties. This decision must specify the name and address of the institutional or individual assessor, the subject of assessment, issues to be assessed and specific issues required for assessment conclusion.

2. The assessment-requesting party shall pay assessment expenses. When both parties request assessment, they shall jointly pay these expenses.

Article 21. Time limit for study and verification of cases

The time limit for studying and verifying a dispute is three (3) months after receiving a complete and valid dossier. For a complicated dispute, this time limit may be extended for not more than six (6) months after receiving a complete and valid dossier.

Section 3. ORGANIZATION OF DISPUTE SETTLEMENT MEETINGS

Article 22. Time limit for holding dispute settlement meetings

1. The time limit for holding a dispute settlement meeting is thirty (30) days after completing the study and verification of a dispute.

2. Within this time limit, the Electricity Regulatory Authority ofVietnam shall cany out necessary procedures to hold the dispute settlement meeting. Invitations to this meeting shall be sent to involved parties at least fifteen (15) days before the meeting.

Article 23. Participation in dispute settlement meetings

1. Representatives at law or authorized representatives of the parties shall attend the dispute settlement meeting at the invitation of the Electricity Regulatory Authority of Vietnam. The parties shall send their lists of participants to the Electricity Regulatory Authority of Vietnam at least two (2) working days before the meeting.

2. The Electricity Regulatory Authority of Vietnam may invite to this meeting witnesses, experts and organizations and individuals with related rights and obligations.

Article 24. Absence of parties in dispute settlement meetings

1. Absence of the requesting party

a/ When the requesting party is absent at the dispute settlement meeting for the first time with a plausible reason, the Electricity Regulatory Authority of Vietnam shall postpone this meeting;

b/ When the requesting party is invited to the dispute settlement meeting for the second time and still absent or leaves this meeting without the meeting chairperson s consent, it shall be regarded as giving up its dispute settlement request and the director of the Electricity Regulatory Authority of Vietnam shall issue a decision to terminate the dispute settlement. In this case, the requesting party may request dispute settlement again if the statute of limitations for dispute settlement has not expired.

2. Absence of the requested party

a/ When the requested party is absent at the dispute settlement meeting for the first time with a plausible reason, the Electricity Regulatory Authority of Vietnam shall postpone this meeting;

b/ When the requested party is invited to the meeting for the second time and still absent or leaves the meeting without the meeting chairperson s consent, the director of the Electricity Regulatory Authority of Vietnam shall, based on the dispute dossier and available evidence, settle the dispute in the absence of the requested party.

3. When both parties request to settle the dispute in their presence, the director of the Electricity Regulatory Authority of Vietnam shall settle the dispute based on its dossier and available evidence.

Article 25. Dispute settlement meetings

1. Meeting opening

a/ The meeting chairperson opens the meeting and reads the decision on organization of the meeting;

b/ The meeting secretary reads lists of present and absent participants and reasons for absence.

2. Dispute settlement

a/ Parties present their dispute settlement requests, give explanations and produce supporting documents and evidence;

b/ Witnesses, experts and representatives of organizations and individuals with related rights and obligations give their opinions:

c/ To study, examine and verify documents and collected evidence and to report on study and verification results.

3. Dispute settlement conclusion

a/ The meeting chairperson concludes the dispute settlement on the basis of opinions given in the meeting, study and analysis of collected documents and evidence, and the report on study and verification results;

b/ When either party or both parties does/do not agree with the meeting chairperson s conclusions or the case has new circumstances making the chairperson unable to make conclusions yet, the chairperson shall conduct additional study and verification and hold another meeting. The time for additional study and verification and holding another meeting must not exceed the time limits specified in Articles 21 and 22 of this Circular.

Article 26. Minutes of dispute settlement meetings

1. The minutes of a dispute settlement meeting contains the following details:

a/ Name of the dispute;

b/ Place and date of the dispute settlement meeting;

c/ Names of the requesting and requested parties and their representatives participating in the meeting;

d/ Names of assessors, witnesses and other meeting participants;

e. Summary of the meeting proceedings;

f/ Conclusions of the meeting chairperson.

2. The minutes of a dispute settlement meeting must contain signatures of the meeting chairperson and secretary and requesting and requested parties unless they are absent under Article 24 of this Circular. When either party or both parties does/do not agree with one or more than one content of the meeting, it/they shall still sign the minutes and may reserve their opinions.

Section 4. DISPUTE SETTLEMENT DECISIONS

Article 27. Dispute settlement decisions

1. Within five (5) working days after a dispute settlement meeting, the director of the Electricity Regulatory Authority of Vietnam shall issue a dispute settlement decision.

2. A dispute settlement decision must contain the following details:

a/ Date and place of issuing the decision;

b/ Names and addresses of the requesting and requested parties;

c/ Summary of the dispute settlement petition and matters under dispute;

d/ Bases for decision issuance, including legal grounds for dispute settlement and evidence examined and verified during the dispute settlement;

e/ Responsibilities of the disputing parties, including the duty to pay dispute settlement expenses and other expenses (if any);

f/ Deadline for enforcement of the decision.

3. A dispute settlement decision shall be sent to requesting and requested parties within five (5) working days from the date of its signing,

Article 28. Effect of dispute settlement decisions

1. A dispute settlement decision takes effect on the date of its signing.

2. The dispute settlement decision is final, except disputes related to contracts signed between parties.

3. Involved parties shall implement the decision under law.

Article 29. Complaints about dispute settlement decisions

1. Complaints about dispute settlement decisions for the disputes specified in Clause 2, Article 1 of this Circular comply with the law on complaints.

2. When a party or parties disagrees/disagree with the dispute settlement decision for disputes related to electricity trading contracts or supportive service provision contracts, it/they may initiate a lawsuit at a court for settlement under law.

Article 30. Confidentiality and preservation of dispute settlement dossiers

1. Documents and evidence provided by disputing or related parties to the Electricity Regulatory Authority of Vietnam may be used for dispute settlement only. The Electricity Regulatory Authority of Vietnam shall keep information confidential at the request of information providers and under law,

2. The Electricity Regulatory Authority of Vietnam shall preserve dispute settlement dossiers under the law on archives.

Chapter V

DISPUTE SETTLEMENT EXPENSES

Article 31. Dispute settlement expenses

1. The losing party shall pay dispute settlement expenses, unless otherwise agreed by parties.

2. Dispute settlement expenses include:

a/ Travel, lodging and other related expenses for dispute-handling officers at levels provided by relevant laws;

b/ Expenses for hiring experts and allowances for participants in dispute settlement meetings.

Article 32. Payment of dispute settlement expenses

1. The requesting party shall advance the dispute settlement expenses specified in Clause 2, Article 31 of this Circular at the time it files the dispute settlement petition, unless otherwise agreed by the parties.

2. When the requested party also lodges a counter-petition, it shall advance expenses for settlement of its counter-petition, unless otherwise agreed by the parties.

3. Advanced dispute settlement expenses shall be paid at the actual expenses for dispute settlement and settled with the payer when:

a/ The dispute settlement terminates under Article 8 of this Circular;

b/ The requested party withdraws its counter-petition;

c/ The dossier is not processed under Point e. Clause 1, Article 16 of this Circular.

4. The Electricity Regulatory Authority of Vietnam shall estimate dispute settlement expenses and notify them to the parties. Within fifteen (15) days after receiving such notice, the requesting party shall fully pay these expenses, unless otherwise agreed by the parties. Past this time limit, if the requesting party fails to pay these expenses without a reason accepted by the Electricity Regulatory Authority of Vietnam, it shall be regarded as withdrawing its dispute settlement petition.

5. The Electricity Regulatory Authority of Vietnam shall notify the settlement of expenses to the parties before issuing a dispute settlement decision. When the advanced amount is higher than actual expenses, the Electricity Regulatory Authority of Vietnam shall refund the surplus to the payer. When actual expenses are higher than the advanced amount, the parties shall additionally pay the deficit.

Chapter VI

ORGANIZATION OF IMPLEMENTATION

Article 33. Effect

1. This Circular takes effect on January 27, 2011.

2. Any problems arising in the course of implementation shall be reported to the Ministry of Industry and Trade for appropriate amendment and supplementation