Mediation and insolvency, with a focus on developing countries
| Autor | Salma Ben Ayed, Giovanni Matteucci, Nam Tran Van |
| Páginas | 115-153 |
ROSA PÉREZ MARTELL (Coord.) COMPROMISO CON LOS OBJETIVOS DE DESARROLLO SOSTENIBLE 115
MEDIATION AND INSOLVENCY, WITH A
FOCUS ON DEVELOPING COUNTRIES
Salma Ben Ayed, Giovanni Matteucci and Nam Tran Van*
INDEX : 1. A bit of history; 2. International institutions; 3. Mediation and insol-
vency; 4. Vietnam legal framework for mediation and the quest to mediate dis-
putes related to insolvency; 5. Demand of Vietnamese enterprises for commer-
cial mediation and typical suppliers; 6. Some obstacles and recommendations
to boot commercial mediation in Vietnam; 7. « Règlement amiable » in Tunisia;
8. Conclusions.
KEYWORDS: ADR, mediation, insolvency, developing countries.
ABSTRACT: Debt has been a problem for millennia. The roots of the modern
insolvency law are in the «jus mercatorum – merchant law», which took shape
in the North of Italy in the late Middle Ages: in case of financial distress, heavy
financial and personal penalties, but also the «fida-safe conduct», the possibility
of setting disputes outside court. Contemporary international institutions focused
ADRs on commercial disputes for decades, only in the last ten years mediation
in insolvency cases. The 2008 economic crisis and the Covid pandemia (2010)
raised problems and increased social inequalities. Mediation can be useful to pre-
vent / manage insolvency disputes. But in developing countries it seems there still
is a long way to go.
* Salma Ben Ayed, chapter 7; Giovanni Matteucci 1, 2, 3; Nam Tran Van 4, 5, 6.
SALMA BEN AYED | GIOVANNI MATTEUCCI | NAM TRAN VAN
MEDIATION AND INSOLVENCY, WITH A FOCUS ON DEVELOPING COUNTRIES
ROSA PÉREZ MARTELL (Coord.) COMPROMISO CON LOS OBJETIVOS DE DESARROLLO SOSTENIBLE 117
«Legal actions must be taken but every debtor is a person
and it is necessary to pursue, with infinite patience and diplomacy,
a communication with him or her, looking for a compromise»1
1. A BIT OF HISTORY
Debt was a structural problem in the lives of ancient people. And the
solutions were not very different from country to country.
The code of Hammurabi,2 king of the city-state of Babylon, XVIII
century B.C., art. 48: «If someone owes a debt for a loan, and a storm damag-
es the grain, or the crop perishes, or the grain does not grow because of lack of
water, in that year he does not need to give the creditor any amount of grain, he
washes that board on which the debt is marked in water and does not pay any
rent for that year».
In Ancient Greece, VI century B.C., social inequality reached its
peak: in Athens all the people were in debt to the rich ones and the city
was in great danger. Solon, to reduce all debts, abolished debt slavery, and
to bring back those individuals who had been sold abroad, adopted the
, reduction of interests and devaluation of the currency.3
1 Giovanni Matteucci, «Festina lente in NPL management in Italy» – Roberto Romag-
noli, former S.G.A. leader, in Eurofenix Autumn 2017, page 32
2 https://www.britannica.com/topic/Code-of-Hammurabi
David Graeber, «Debt: The First 5,000 Years», Melville House, 2011
https://en.wikipedia.org/wiki/Debt:_The_First_5000_Years
3 Plutarco, Vita di Solone, 13-22 (Plutarch, Life of Solon)
https://biagioantoniocapacchione.files.wordpress.com/2016/05/plutarco-vita-di-
solone-13-22-greco-e-traduzione.doc
Joseph Johnston, Solon’s Reform of Weights and Measures, Cambridge University
Press, 23 December 2013
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