English - CEDAW Southeast Asia

A Gendered and Rights-Based Review of Vietnamese Legal Documents through the Lens of CEDAW
Several days after making the records on successful conciliation, the judge who presides
over the conciliation session, if no parties change their opinions, will issue a decision recognizing
the agreement of the involved parties. 198 Such agreement will be valid only for the persons
present in the conciliation, unless it is accepted in writing by the parties that are absent
from the conciliation session. 199
Provisions exist also in Article 40 of the Decree on Legal Aid, which provides:
Article 40: Reconciliation in legal aid
(1) As requested or agreed by one or several parties, the legal aid-providing organization
shall appoint a legal aid-providing person to act as an intermediary to analyze details
of the case, explain legal provisions and guide the involved parties to negotiate and
agree on the method of settling the case without bringing the case to the court or competent
agency, to voluntarily withdraw their petitions, settle disputes by themselves and
abide by the results of settlement of the case.
(2) Reconciliation is also conducted when it is necessary to preserve community solidarity,
maintain social order and safety, and protect legitimate rights and interests of involved
parties, except for cases where reconciliation is not permitted by law.
(3) Reconciliation must be recorded in writing. A written reconciliation record must clearly
state the result of the reconciliation process, opinions of the legal aid-providing person
and involved parties on the case and signatures of the parties to indicate that they
will voluntarily implement the reconciliation result. Written reconciliation records shall
be kept in the dossiers of legal aid cases.
Recommendation: In cases of conciliation, mediation, reconciliation or other
alternative dispute resolution (ADR), it should be mandatory for a procedure-handling
person to ascertain the voluntariness of the party to undergo such procedure. The procedure-handling
person must also determine whether there is GBV exerted by one party
against the other, the extent of such violence and its influence on the decision to enter
into conciliation and other (ADR) as well as to affect the outcome of the proceedings.
These suggestions must be explicit in legal documents to ensure its obligatory nature.
The application of reconciliation, conciliation and other forms of (ADR) must not
be allowed where parties do not have equal power relations, or one of the parties has
been abused or subjected to violence as to render her unable to make her own independent
choices, except for very pressing reasons and with appropriate safeguards; for
example, non-face-to-face and separate meetings, measures to assure the safety of victims,
etc. See Part V.1.3.6, Indicator 22(e).
99
Any form of complaint or denunciation handling, whether through the court or
(ADR), including conciliation or reconciliation, should be considered legally effective or
successful if the complaint or denunciation does not lead to an appeal or a lawsuit.
198
Ibid., Article 187(1)
199
Ibid., Article 187(3)
General undertakings to eliminate discrimination and ensure equality (Articles 1-3 of CEDAW)