Circular No. 40/2010/TT-BCT stipulates the procedures and formalities for resolving disputes in the electricity market.

CIRCULAR

Regulations on the procedures and formalities for resolving disputes

in the electricity market

Pursuant to Decree No. 189/2007/ND-CP dated December 27, 2007, issued by the Government, detailing the functions, tasks, powers, and organizational structure of the Ministry of Industry and Trade;

Pursuant to the Electricity Law dated December 3, 2004; Decree No. 105/2005/NĐ-CP dated August 17, 2005 of the Government detailing and guiding the implementation of certain provisions of the Electricity Law;

Pursuant to Decision No. 153/2008/QĐ-TTg dated November 28, 2008 of the Prime Minister stipulating the functions, tasks, powers, and organizational structure of the Electricity Market Regulatory Agency under the Ministry of Industry and Trade;

The Ministry of Industry and Trade hereby stipulates the procedures and formalities for resolving disputes in the electricity market as follows:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular stipulates the procedures and formalities for resolving the following disputes in the electricity market:

1. Disputes related to power purchase contracts and ancillary service supply contracts between electricity units, excluding contracts with foreign elements.

2. Other disputes in electricity generation, transmission, distribution, wholesale electricity sales, retail electricity sales, system dispatching, and electricity market operation.

Article 2. Applicability

This Circular applies to the following entities:

1. Electricity units.

2. Organizations and individuals who believe that their legitimate rights and interests have been violated by electricity units.

3. Dispute resolution agency.

Article 3. Explanation of Terms

Strategic multi-purpose hydropower plant

1. Claimant is an electricity unit, organization, or individual requesting dispute resolution when they believe their rights and legitimate interests have been violated.

2. Respondent is an electricity unit alleged by the claimant to have violated the claimant's rights and legitimate interests.

3. Dispute resolution agency is the Electricity Market Regulatory Agency under the Ministry of Industry and Trade.

Article 4. Time Limit for Requesting Resolution of Disputes

The time limit for requesting resolution of disputes specified in Article 1 of this Circular is one (01) year, counted from the date of occurrence of the act which one of the parties believes has violated their legitimate rights and interests, except in cases of force majeure.

Article 5. Procedures for Resolving Disputes

1. When disputes arise in the electricity market as specified in Article 1 of this Circular, the parties involved must engage in negotiations to resolve the disputes within sixty (60) days.

2. If the two parties fail to resolve the dispute within the time limit prescribed in Clause 1 of this Article, either party or both parties may submit the matter to the Electricity Market Regulatory Agency for resolution according to the procedures and formalities stipulated in this Circular.

Article 6. Principles for Resolving Disputes

1. The resolution of disputes must comply with the procedures and formalities stipulated in this Circular and relevant laws.

2. In disputes related to signed power purchase contracts or ancillary service supply contracts, the resolution must be based on the contents of the signed contracts.

3. In disputes related to electricity business licenses, the resolution must be based on the contents and regulations of the licenses issued to the electricity units.

Article 7. Handling Cases of Disputes with Signs of Legal Violations

During the process of resolving disputes, if signs of legal violations are discovered, the Electricity Market Regulatory Agency shall take responsibility to handle them within its authority or transfer the case file to the competent authority for handling according to the law.

Article 8. Suspension of Dispute Resolution Proceedings

1. The Electricity Market Regulatory Agency suspends the resolution of dispute proceedings in the following cases:

a) The claimant withdraws the request for dispute resolution;

b) The claimant has been invited to attend dispute resolution meetings twice (02) but still fails to appear or leaves the dispute resolution meeting without the chairperson's consent;

c) The parties agree to terminate the dispute resolution proceedings;

d) The case specified in Article 7 of this Circular;

đ) One party or both parties submit the dispute to another competent authority for resolution.

2. The Electricity Market Regulatory Agency shall notify the parties in writing and specify the reasons for suspending the resolution of the dispute proceedings.

Article 9. Obligation to Provide Information

Organizations and individuals related to the dispute have the responsibility to cooperate and provide necessary information related to the dispute upon request of the Electricity Regulatory Authority.

Chapter II

RIGHTS AND OBLIGATIONS IN RESOLVING DISPUTES

Article 10. Duties and Authorities of the Director of the Electricity Regulatory Authority

1. Requesting appraisal at the proposal of one party or both parties in dispute.

2. Inviting experts to participate in the dispute resolution process.

3. Deciding to suspend the resolution of the dispute in accordance with Article 8 of this Circular.

4. Chairing the dispute resolution meeting. In case of absence, the Director of the Electricity Regulatory Authority may delegate the Deputy Director to chair the meeting.

5. Resolving complaints in cases where there are complaints about the Decision on Dispute Resolution, the Decision on Suspension of Dispute Resolution.

Article 11. Duties and Authorities of Case Handling Officers

1. Requesting the disputing parties to explain and provide relevant documents and evidence related to the dispute.

2. Keeping confidential the content of the dispute except when required to provide information to competent state agencies as prescribed by law.

3. Safeguarding provided documents.

4. Refusing to handle the dispute if they have rights, interests, obligations related to the dispute or are the father, mother, spouse, child, brother, sister, or half-sibling of the legal representative of the disputing parties.

5. Serving as the secretary for the dispute resolution meeting.

6. Being responsible before the Director of the Electricity Regulatory Authority and before the law for performing their duties and authorities.

Article 12. Rights and Obligations of the Claimant and Respondent

1. Appointing a legal representative or authorized representative to attend the dispute resolution meeting.

2. Presenting legitimate evidence to protect their legitimate rights and interests.

3. Requesting a change of the case handling officer if it is discovered that the case handling officer has rights, interests, obligations related to the dispute or is the father, mother, spouse, child, brother, sister, or half-sibling of the legal representative of the disputing parties.

4. Requesting an appraisal.

5. Requesting the invitation of witnesses.

6. Requesting the invitation of experts.

7. Amending, supplementing, withdrawing the Request for Dispute Resolution or Complaint before the Electricity Regulatory Authority issues the Decision on Dispute Resolution.

8. Enforcing the Decision on Dispute Resolution.

Chapter III

PROCEDURES FOR RESOLVING DISPUTES

Section 1. CASE HANDLING

Article 13. Documents for Requesting Dispute Resolution

1. The claimant must submit the documents for requesting dispute resolution to the Electricity Regulatory Authority. The documents for requesting dispute resolution include:

a) Request for Dispute Resolution;

b) Minutes of negotiation or mediation that were unsuccessful or documents proving that the dispute could not be mediated;

c) Certified copy of the Contract for disputes related to the Power Purchase Agreement or Ancillary Services Contract. If the Contract does not contain an agreement requesting the Electricity Regulatory Authority to resolve the dispute, the documents must include an Agreement of the parties regarding the request for the Electricity Regulatory Authority to resolve the dispute;

d) Legally valid copy of the Power Business License (if the claimant is a power company);

đ) Legally valid copies of documents and evidence to prove that the request for dispute resolution is based and lawful;

e) Commitment that the dispute has not been submitted for resolution to the Court or Commercial Arbitration.

2. The Request for Dispute Resolution must include the following main contents:

a) Date of writing the request;

b) Name, address, and other relevant information of the parties;

c) Summary of the dispute content;

d) Requests of the claimant;

đ) Amount of compensation requested (if applicable).

Article 14. Acceptance of Dispute Resolution Requests

1. Within five (05) working days from the date of receipt of the dispute resolution request file, the Electricity Regulatory Authority must examine the validity of the file and notify the Requesting Party in writing about the acceptance of the file.

2. In case the file is not valid, the Electricity Regulatory Authority must notify the Requesting Party in writing to supplement the file; the deadline for supplementing the file shall not exceed fifteen (15) working days from the date the Electricity Regulatory Authority notifies the supplementation of the file. If the Requesting Party requests in writing, the Electricity Regulatory Authority may extend the deadline for supplementing the file but not more than ten (10) working days from the expiration date of the supplementation deadline.

Article 15. Counterclaim

1. The Respondent has the right to counterclaim against the Requesting Party regarding issues related to the Requesting Party's request. The counterclaim must be sent to the Electricity Regulatory Authority together with the explanation document at the same time.

2. The Requesting Party must send a written response to the counterclaim to the Electricity Regulatory Authority and the Respondent within twenty (20) working days from the date of receipt of the counterclaim.

3. The claims in the Respondent's counterclaim will be resolved in the same session as the dispute resolution request of the Requesting Party.

4. In cases where the counterclaim is submitted later than the deadline specified in Clause 1 of this Article or the content of the counterclaim is not related to the Requesting Party's request, it will be considered and resolved as a separate dispute matter.

Article 16. Non-Acceptance of Dispute Resolution Request Files

1. Non-acceptance of dispute resolution request files in the following cases:

a) The statute of limitations for requesting resolution of disputes has expired;

b) The matter does not fall within the jurisdiction of the Electricity Regulatory Authority;

c) The matter has been brought before the Commercial Arbitration, Court, or has been resolved by a judgment or decision that has taken legal effect from the Court or Commercial Arbitration;

d) Negotiation to resolve the dispute on its own has not been conducted as prescribed in Clause 1 of Article 5 of this Circular;

đ) The Requesting Party fails to supplement the file according to the Electricity Regulatory Authority's requirements within the deadline stipulated in Clause 2 of Article 14 of this Circular;

e) The Requesting Party or the Respondent fails to pay the advance costs for resolving the dispute as prescribed in Clause 1 and Clause 2 of Article 32 of this Circular.

2. The Electricity Regulatory Authority is responsible for notifying the Requesting Party in writing and specifying the reasons for the non-acceptance of the dispute resolution request file.

Section 2. INVESTIGATION AND VERIFICATION OF CASES

Article 17. Assignment of Staff to Handle Dispute Cases, Notification of Case to the Respondent

1. Within two (02) working days from the date of receiving a complete valid file, the Director of the Electricity Regulatory Authority is responsible for assigning staff to handle the dispute case.

2. Within five (05) working days from the date of receiving a complete valid file, the Electricity Regulatory Authority is responsible for notifying in writing about the dispute and sending a copy of the Request for Dispute Resolution, along with accompanying documents from the Requesting Party, to the Respondent.

Article 18. Explanation by Parties

1. Within twenty (20) working days from the date of receipt of the Request for Dispute Resolution and accompanying documents from the Requesting Party sent by the Electricity Regulatory Authority, the Respondent must submit to the Electricity Regulatory Authority a written explanation and accompanying proof documents.

In case an extension of the explanation period is needed, the Respondent must submit a written request to the Electricity Regulatory Authority for an extension, clearly stating the reasons for the request. The extension period shall not exceed ten (10) working days.

2. The explanation document must include the following main contents:

a) Date, month, year of the explanation;

b) Name and address of the Respondent;

c) Explanation and arguments, analysis for self-defense.

3. In case the Respondent does not submit a written explanation, it shall be deemed to have accepted the content in the Request for Dispute Resolution of the Requesting Party.

Article 19. Reviewing files and verifying cases

1. Staff handling dispute cases shall be responsible for reviewing case files based on the Request for Dispute Resolution, accompanying documents and evidence, and statements from all parties.

2. Staff handling dispute cases have the right to inspect and examine at the scene; meet with the parties to hear their opinions; must prepare a Record detailing the time, location, names, addresses of the parties, verification content, and the opinions presented by the parties; must read the Record aloud to the parties and request them to sign the Record together.

3. Upon completion of the file review and case verification process, staff handling dispute cases must report in writing to the Director of the Electricity Regulatory Authority. The report must summarize the content of the dispute, clearly state verified circumstances and evidence, and propose a resolution plan.

Article 20. Requesting Appraisal

1. The Director of the Electricity Regulatory Authority has the authority to issue a decision to request appraisal upon the application of one party or both disputing parties. The appraisal request decision must specify the name and address of the appraising organization or individual, the object to be appraised, the issues to be appraised, and specific requirements for the appraisal conclusion.

2. The party requesting the appraisal must pay the appraisal fee. If both parties request the appraisal, they must jointly pay the appraisal fee.

Article 21. Time Limit for Reviewing and Verifying Cases

The time limit for reviewing and verifying dispute cases is three (03) months, starting from the date when complete valid files are received. For complex dispute cases, this period may be extended but not exceeding six (06) months, starting from the date when complete valid files are received.

Section 3. ORGANIZING A SESSION TO RESOLVE DISPUTES

Article 22. Time Limit for Organizing a Session to Resolve Disputes

1. The time limit for organizing a session to resolve disputes is thirty (30) days, starting from the date of completing the review and verification of the dispute case.

2. Within this period, the Electricity Regulatory Authority is responsible for conducting necessary procedures to convene a session to resolve disputes. Invitations to the parties to attend the dispute resolution session must be sent at least fifteen (15) days before the session date.

Article 23. Attending a Session to Resolve Disputes

1. Legal representatives or authorized representatives of the parties must attend the session according to the invitation from the Electricity Regulatory Authority. Lists of attendees for each party must be submitted to the Electricity Regulatory Authority at least two (02) working days before the session opening date.

2. The Electricity Regulatory Authority has the right to invite witnesses, experts, organizations, and individuals with relevant rights and obligations to participate in the session.

Article 24. Absence of Parties in a Session to Resolve Disputes

1. Absence of the Claimant Party

a) If the claimant party is absent for the first time with a legitimate reason, the Electricity Regulatory Authority must postpone the dispute resolution session;

b) If the claimant party is absent or leaves the session without the session chair's consent after being invited twice (02), it will be considered as abandoning the dispute resolution request, and the Director of the Electricity Regulatory Authority is responsible for issuing a decision to suspend the resolution process. In this case, the claimant party still retains the right to request dispute resolution again if the deadline for requesting dispute resolution remains valid.

2. Absence of the Respondent Party

a) If the respondent party is absent for the first time with a legitimate reason, the Electricity Regulatory Authority must postpone the dispute resolution session;

b) If the respondent party is absent or leaves the session without the session chair's consent after being invited twice (02), the Director of the Electricity Regulatory Authority will proceed to resolve the dispute in the absence of the respondent party based on the case file and existing evidence.

3. In cases where both parties requesting dispute resolution do not require the presence of the parties, the Director of the Electricity Regulatory Authority will resolve the dispute based on the case file and existing evidence.

Article 25. Meeting to Resolve Disputes

1. Opening the meeting

a) The chairperson opens the meeting and reads the Decision on convening the dispute resolution meeting;

b) The secretary reads out the list of attendees and those absent with reasons for absence.

2. Resolving the dispute case

a) The parties present their requests for dispute resolution, provide explanations, and submit relevant documents and evidence;

b) Witnesses, experts, representatives of organizations and individuals with related rights and obligations participate in the meeting to express their opinions;

c) Review, examine, and analyze collected documents and evidence, research reports, and verification results of the dispute case.

3. Concluding the resolution of the dispute case

a) The chairperson concludes the dispute resolution based on opinions at the meeting, examination and analysis of collected documents and evidence, and research and verification reports of the dispute case;

b) In cases where one party or all parties do not agree with the chairperson's conclusion or if there are many new circumstances that cannot be concluded, the chairperson is responsible for organizing additional research and verification and reconvening the meeting. The period for additional research, verification, and reconvening the meeting shall not exceed the time limit specified in Articles 21 and 22 of this Circular.

Article 26. Minutes of the Dispute Resolution Meeting

1. The minutes of the dispute resolution meeting include the following contents:

a) Name of the dispute;

b) Location and date and year of convening the dispute resolution meeting;

c) Names of the Requesting Party, Responding Party, and representatives participating in the dispute resolution meeting;

d) Names of appraisers, witnesses (if any), and other participants in the dispute resolution meeting;

đ) Summary of the proceedings of the dispute resolution meeting;

e) Conclusion of the chairperson.

2. The minutes of the dispute resolution meeting must be signed by the chairperson, the secretary, the Requesting Party, and the Responding Party, except in cases where the parties are absent as stipulated in Article 24 of this Circular. If one party or all parties in the dispute do not agree with one or more contents of the meeting, they still must sign the minutes and have the right to reserve their opinions on the points of disagreement.

Section 4. DECISION ON DISPUTE RESOLUTION

Article 27. Decision on Resolving the Dispute Case

1. Within five (05) working days from the end of the dispute resolution meeting, the Director of the Electricity Regulatory Authority is responsible for issuing the Decision on Resolving the Dispute.

2. The Decision on Resolving the Dispute must include the following main contents:

a) Date, month, year, and location of issuance of the Decision;

b) Name and address of the Requesting Party and the Responding Party;

c) Summary of the Request and disputed issues;

d) Basis for issuing the Decision, including legal grounds for resolving the dispute and evidence verified during the dispute resolution process;

đ) Obligations of the parties involved in the dispute, including dispute resolution costs and other costs (if any);

e) Time limit for implementing the Decision on Resolving the Dispute.

3. The Decision on Resolving the Dispute must be sent to the Requesting Party and the Responding Party within five (05) working days from the date of signing.

Article 28. Effectiveness of the Decision Resolving Disputes

1. The decision resolving disputes becomes effective from the date of signing.

2. The decision resolving disputes has final effect, except for disputes related to contracts already signed between the parties.

3. The parties are responsible for implementing the Decision in accordance with the provisions of the law.

Article 29. Complaints against the Decision Resolving Disputes

1. Complaints against the decision resolving disputes for disputes specified in Clause 2, Article 1 of this Circular shall be carried out in accordance with the law on complaints.

2. In cases where one party or all parties disagree with the decision resolving disputes concerning disputes related to electricity purchase and sale contracts or ancillary service supply contracts, they have the right to initiate litigation before the court for resolution in accordance with the law.

Article 30. Confidentiality and Storage of Dispute Resolution Files

1. Documents and evidence provided by the disputing parties or related parties to the Electricity Regulatory Authority shall only be used for dispute resolution purposes. The Electricity Regulatory Authority is responsible for maintaining confidentiality of information at the request of the provider and in accordance with the law.

2. The Electricity Regulatory Authority is responsible for storing dispute resolution files in accordance with the law on record keeping.

Chapter V

COSTS OF DISPUTE RESOLUTION

Article 31. Costs of Dispute Resolution

1. The losing party must bear the costs of dispute resolution, except in cases where the parties have agreed otherwise.

2. The costs of dispute resolution include:

a) Travel expenses, accommodation expenses, and other related expenses for dispute case officers according to the relevant legal regulations;

b) Fees for hiring experts and remuneration for members of the dispute resolution hearing.

Article 32. Payment of Dispute Resolution Costs

1. The requesting party must pay the advance payment of dispute resolution costs as stipulated in Clause 2, Article 31 of this Circular simultaneously with submitting the Request for Dispute Resolution, unless the parties have agreed otherwise.

2. In cases of counterclaim, the requested party must pay the advance payment of dispute resolution costs for the counterclaim, unless the parties have agreed otherwise.

3. The advance payment of dispute resolution costs will be settled based on the actual costs incurred for dispute resolution and will be settled with the party that paid it in the following cases:

a) Suspension of dispute resolution proceedings as prescribed in Article 8 of this Circular;

b) The requested party withdraws the counterclaim;

c) The file is not accepted for handling as prescribed in Point d, Clause 1, Article 16 of this Circular.

4. The Electricity Regulatory Authority is responsible for preparing a budget for costs arising during the dispute resolution process and notifying the parties. Within fifteen (15) days from the date of receipt of the notification, the requesting party must pay all these costs, unless the parties have agreed otherwise. If the requesting party does not pay within this period without a reason approved by the Electricity Regulatory Authority, it will be deemed to have withdrawn the Request for Dispute Resolution.

5. Settlement of cost items will be notified by the Electricity Regulatory Authority to the parties prior to issuing the Decision Resolving Disputes. In cases where the advance payment exceeds the actual costs, the Electricity Regulatory Authority must refund the excess amount to the paying party. In cases where the actual costs exceed the advance payment, the parties must pay the additional amount.

Chapter VI

IMPLEMENTATION

Article 33. Effective Date

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

2. During implementation, if any difficulties arise, organizations and individuals shall report to the Ministry of Industry and Trade for appropriate amendments and supplements./.