What Are Procedures for Postponement at the First Instance Court?

  In case that civil lawsuit cannot be mediated or cannot conduct the mediation, the Judge shall hold the meetings for checking the handover, access, disclosure of evidences and mediation. In cases there are many parties in a case and some of them are absent but present parties agree to conduct the meetings and the conduct of the meeting does not affect rights and obligations of absent parties, the Judges shall conduct meeting between present parties. If parties request to postpone the mediation meeting until all parties attend, the Judge shall postpone the meeting. The Judges must notify postponement and re-open of meeting to the parties. The litigation lawyers could be the best advisors to the client to utilize the procedures for the best interests of their client depending on the situation.

In the first-instance court hearings, when being summoned duly the the Court for the first time, the parties or their representatives and defense counsels shall be present at the Court hearings. If any of them is absent, the Trial Panel shall postpone the Court hearings, unless such person requests for trial in his/her absence. The Courts must notify the postponement of the Court hearings to the parties, their representatives and defense counsels. When being summoned duly for the second time, parties or their representatives and defense counsels shall be present at the Court hearings unless they request for trials in their absence. If the absence is caused by a force majeure event or an objective obstacle, the Court may postpone the Court hearings, otherwise the Court shall handle as follows: (i) The absence of plaintiff without his/her representative shall be considered giving up the lawsuit initiation, thus the Court shall issue a decision to terminate the case resolution for his/her request for lawsuit initiation, unless such plaintiff requests for trials in their absence. The plaintiff may re-initiate lawsuits according to law provisions; (ii) If neither the defendant without counter-claims or a person with relevant interests and duties (relevant person) without independent claims nor his/her representative participates in the Court hearings, the Court shall conduct trial in their absence; (iii) If neither the defendant with counter-claims nor his/her representative participates in the Court hearings, such defendant shall be considered giving up the counter claims, thus the Court shall issue a decision to terminate the resolution for his/her counter claims, unless such defendant requests for trial in his/her absence. The defendant may re-initiate lawsuits for his/her counter-claims according to law provisions; (iv) If neither relevant person with independent claims nor his/her representative participates in the Court hearings, such person shall be considered giving up the independent claims, thus the Court shall issue a decision to terminate the resolution for his/her independent claims, unless such person requests for trial in his/her absence. Such person may re-initiate lawsuits for his/her independent claims according to law provisions; (v) If the defense counsels of the parties is absent, the Court shall conduct trial in their absence.

When the witnesses are absent, the Trial Panels shall decide to conduct trial or to postpone the court. The Trial Panels shall still conduct trial if the witnesses are absent but have earlier given their testimonies in person or sent their testimonies to courts. The presiding Judges shall make such testimonies public. The Trial Panels shall decide to postpone the Court hearings if the absence of the witnesses at Court creates difficulties or affects the objective and comprehensive resolution of the cases.

If the expert-witnesses are absent, the Trial Panels shall decide to conduct trial or to postpone the court. If the interpreters are absent without substitutes, the Trial Panels shall decide to postpone the Court hearings. If expert-witnesses or interpreters must be replaced, the Judges, the Trial panels or the Civil matter-resolving council shall issue decisions to postpone the Court hearings.

When any procedure participants are absent from Court hearings and it does not fall into the cases which the Courts must postpone the Court hearings, the presiding Judges must ask if there is any one requesting to postpone the Court hearings. If there is, the Trial Panels shall consider and decide to accept or not accept such request. In case of non-acceptance, the reasons must be clearly stated.

In addtion to absence and change of procedure participants, the change of procedure-conducting person may make the Court hearings be postponed. Firstly, in case of change of the Judge, People’s Jurors, Ombudspersons, Court clerks, procurators, the Trial Panels shall issue decisions to postpone the Court hearings.

Decision on postponing the Court hearings in above circumstances is made by Trial Panels and the time limit for postponing shall not exceed 01 month or not exceed 15 days, applicable to Court carried out under simplified procedure, from the day on which the decision to postpone the Court session is issued.

Having said that, the client could rely on the litigation lawyers for the solution in each case to protect the best interests if postponement procedures of the first instance trial could be applied.

Read More

How Violations of Fundamental Principles Causes Annulment of Arbitral Awards?

  Arbitration award is final and binding upon the parties. The arbitral award takes effect from the date of its issuance and is not subject to appeal and protest which is a feature of dispute resolution through commercial arbitration. Therefore, the regulations on annulment of arbitral award should be carefully implemented to closely monitor these awards, ensure compliance with the laws and protect the interests of the parties involved.  This is an important matters to discuss when lawyers specializing in dispute through commercial arbitration encounter when requested by the client to assist the enforcement of the arbitral awards under Vietnam laws.

Annulment of arbitral award also known as setting aside is means that the Court as a juridical authority is entitled to review such award upon request of parties in dispute in case there is a ground proving that the arbitral award belongs to one of the annulment cases under the laws. The competent court to take this action is the provincial court of locality at which the parties agree or at which the Arbitral tribunal given the award.

An arbitral award in contrary to the fundamental principles of Vietnam laws is one of five grounds to set aside. The Court is responsible for verifying and collecting evidences to determine whether or not to annul the arbitral award; the requesting party is responsible for other grounds.

Fundamental principles of Vietnam laws are the basic principles impacting the formation and implementation of Vietnam laws. Each law or code contains those principles on its own. Arbitration awards are respected by laws, however within the boundary permitted by laws to not infringe the interests of concerned parties and the national interests, which has been mostly referred to by the court.

When reviewing a request for annulment of arbitral award, the court shall determine whether the award violates any fundamental principle and how such principle concerns or bind the dispute settlement of arbitrator. The court shall set aside an arbitral award in case it contains decisions in contrary to any fundamental principle of Vietnam laws which are not abided by arbitral tribunal upon issue of the arbitral award and the arbitral award seriously infringe upon the interest of the state, the lawful rights and interests of either party or parties, third parties.

In order to apply this fundamental principle ground, the Court may review the application of substantive law decided by the Arbitral Tribunal, as such, the Court may review legal issues of case. In the meantime, Vietnam Courts are not entitled to review the substantive matters resolved by the arbitral tribunal when reviewing request of requesting parties, the Courts are permitted to refer annulment cases stipulated by laws and evidences proving its conclusion. Therefore, the above restriction conflicts with the ground which is annulment of arbitral awards caused by violation of fundamental principles of Vietnamese laws. In fact, to consider whether or not to violate the fundamental principles, the Courts seem to review the substantive matters of dispute to make an argument for its decision.

Hence to improve the efficiency and judicial system under Vietnam laws, it is expected that the fundamental principle ground to cause annulment arbitral award of arbitrator should be instructed in more detail in Vietnam laws to improve the independence of the Arbitral Tribunal and avoid the Vietnam Court trying to re-resolve the substantive matters.

Read More

How Non-voting Depositary Receipt Work?

 

 Decree No. 60/2015/ND-CP (Decree 60) amending and supplementing a number of articles of Decree No. 58/2012/ND-CP issued by the Government on May 26th, 2015 has lifted foreign ownership limit of the public enterprises (with conditions) and permitted enterprises operating in all sectors and areas without restriction on foreign ownership to self-set out limits of foreign ownership.

Although the Government has been facilitating foreign investor investing in the Vietnam stock market as well as Vietnam enterprises whom raise capital, the foreign investors still faced a number of challenges. The Decree 60 has taken effect since September 1st, 2015, but most public companies did not lift their foreign ownership limit over 51%. One of the reasons is that, the enterprises with 51% foreign ownership shall meet the statutory conditions and therefore have to follow the investment procedures applicable to foreign investors in accordance with the Law on Investment, Law on Securities and other guiding legislations. Having said that, Vietnam enterprises with over 51% foreign ownership shall be treated as foreign investor. These requirements shall significantly impact on business plans and procedures that an enterprise must comply and restrict them from doing business in some sectors. Accordingly, the daily purchase and sale of shares by foreign investors around the threshold of 51% of the charter capital makes it difficult to determine the legal status of an enterprise.

In order to facilitate the attraction of foreign capital inflows, the Government has been reviewing acceptance of non-voting depositary receipt (NVDR). The promulgation of the Enterprise Law 2020 effective from January 1st, 2021, initially recognized NVDR. Ordinary shares used as underlying assets to issue NVDR are called as underlying ordinary shares. Non-voting depository receipts have interest and obligations proportional to the underlying ordinary shares, excepting for voting rights. NVDR is a negotiable financial instrument issued by a third party which is a subsidiary of the Stock Exchange (Issuing Organization). The Issuing Organization will then hand over to investors all financial benefits attached stocks such as dividends, rights offering. This is a solution from other country that helps foreign investors to invest in public enterprises, even they such enterprises reached limit boundary of foreign ownership. NVDR can be converted into ordinary shares in case the public company has not yet reached foreign ownership limit.

Read More

How Copyright Related Rights Are Regulated?

  Copyright related rights (hereinafter referred to as related rights) means rights of an organization or individual to performances, audio and visual fixation, and broadcasts and satellite signals carrying coded programmers. Related rights shall arise at the moment of the above subject matters are fixed or displayed without causing loss or damage to copyright. Principally, related rights are protected by state agency even without the registration. However, the related right owner still may perform the registration procedures for being granted of copyright related right certificate by state agency. The copyright related rights registration could also be assisted by IP attorney in Vietnam.

Which individuals/organizations are eligible for protection of related rights?

The three following subjects are entitled for being protected copyright related rights (i) actors and actresses, singers, instrumentalists, dancers and other persons who perform literary and artistic works (hereinafter all referred to as performers); (ii) organizations and individuals who own performances; (iii) organizations and individuals who fix for the first time the sounds and images of performances or other sounds and images (hereinafter all referred to as producers of audio and visual fixation); (iv) organizations which initiate and carry out broadcasting (hereinafter referred to as broadcasting organizations).

The specific subject matters of copyright related rights which are protected under the law of Vietnam are:

Firstly, performance shall be protected if they fall into one of the following categories (i) it is made by Vietnamese citizens in Vietnam or abroad; (ii) it is made by foreigners in Vietnam; (iii) it is formed on audio and visual fixation; (iv) it has not yet been formed on audio and visual fixation but have already been broadcast (v) it is protected pursuant to an international treaty of which the Socialist Republic of Vietnam is a member.

Secondly, audio and visual fixation shall be protected if it falls into one of the following categories (i) it belongs to audio and visual fixation producers bearing Vietnamese nationality; (ii) it belongs to audio and visual fixation producers protected pursuant to an international treaty of which the Socialist Republic of Vietnam is a member.

Thirdly, broadcasts and satellite signals carrying coded programmers shall be protected if they fall into one of the following categories (i) they belong to broadcasting organizations bearing Vietnamese nationality (ii) they belong to broadcasting organizations protected pursuant to an international treaty of which the Socialist Republic of Vietnam is a member.

It is necessary to take note that the above subject matters are only be protected in the condition that they are not prejudicial to copyright.

If Client needs any more information or request for legal advice regarding copyright related right or other matters of intellectual property, IP attorney at ANT Lawyers could assist.

Read More

What Are the Conditions for Initiating an Anti-dumping Case?

 

 Anti-dumping measures as trade remedies are imposed to protect the domestic market against the unfair penetration and competition from foreign goods. GATT requires member countries to reduce tariffs as well as other non-tariff trade barriers on goods in general and to impose trade remedies in accordance with statutory conditions and procedures in particular.

The investigating authority must verify the satisfied conditions under regulations of the anti-dumping law and requests the Minister of Industry and Trade to issue a decision on the initiation of investigations. In order to comply with GATT and ADA, an anti-dumping investigation are initiated if (i) there is obvious evidence that import of dumped goods causes or threatens material injury to an established industry or materially retards the establishment of a domestic industry and (ii) organizations or individuals representing the domestic industry submit an application for the anti-dumping measures.

How to determine dumping actions and its consequences?

The dumping action is one of the conditions required as imposing anti-dumping measures.  A product is to be considered as being dumped (i.e. introduced into the commerce of another country at less than its normal value) if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country. Besides, the anti-dumping measure shall not be imposed on a product whose dumping margin is not more than 2% of its export price.

The investigating authority must determine whether the domestic established industry is materially injured or threatened material injury or establishment of a domestic industry is materially retarded or not. The investigating authority of the importing country shall be liable for proving these factors based on specific evidences.

A causal link between the dumped imports and the alleged injury is required. The dumping of goods imported into Vietnam causes or threatens material injury to an established industry or materially retards the establishment of a domestic industry. Factors other than dumping of goods imported into Vietnam such as trade restriction policy, development of technology, export capacity and productivity of domestic manufacturing industry, etc., will not be considered as effect caused by the dumping of goods.

Whom could request for imposing anti-dumping measures?

Investigation is conducted upon request of imposing anti-dumping measures by organizations or individuals representing the domestic industry. Organizations or individuals are deemed as representation of domestic industry if: The total production of like products produced by the applicant(s) and domestic producers supporting the application is greater than those produced by domestic producers that opposite to the application; and the total production of like products produced by the applicant(s) and domestic producers supporting the application accounts for at least 25% of total production of like products produced by the domestic industry.

Upon receiving a sufficient dossier as prescribed by the laws, the investigating authority shall conduct the dossier appraisal within a certain time limit and recommend the Minister of Industry and Trade to decide whether the investigation is initiated or not.

If Client needs any more information or request for legal advice or potential dispute regarding trade remedies measures including, anti-dumping, countervailing duty and safeguard measures or international trade dispute matters, our competition, anti-dumping, and countervailing duty lawyers of International trade and tax practice at ANT Lawyers, a law firm in Vietnam always follow up anti-dumping cases and its development to update clients on regular basis.

Read More

How to Use Published Works Without Permission or Pay Royalties, Remuneration?

 

 According to regulation of current Law on intellectual property, copyright means rights of an organization or individual to works created or owned by such organization or individual. Copyright to a work includes moral rights and property rights. If other organization or individual wishes to exploit, use a part or the whole of works, they shall ask permission, pay the owner of copyright for royalties, remuneration according to both parties’ agreement or regulation of law. However, there are still cases of using works without having permission and/or without paying the author or owner of copyright for royalties, remuneration.

Cases of using published works without having permission, without paying for royalties, remuneration include:

-Making one copy for scientific research or personal teaching purposes.

-Reasonable quoting from a work in order to comment on or illustrate one's own works, without misrepresenting the author's views;

-Quoting from a work in order to write an article published in a newspaper or to use in periodical publications, in a radio or television broadcast or in a documentary, without misrepresenting the author's views;

-Quoting from a work in order to teach in school or university without misrepresenting the author's views and not for commercial purposes;

-Copying of a work in order to archive in library and research purposes;

-Performing a stage work or other art work in cultural meetings, communication or mobilization activities without collecting fees in any form;

-Directly audio-visual recording of a performance in order to report current news or to teach;

-Photographing or televising shaping work, architectural, photographic, or applied art work displayed at a public place in order to present images of such work;

-Translating a work into braille or other languages for the blind;

-Importing copies of another's work for personal use.

However, it should be noted that organization or individual using, exploiting works in above cases must meet the conditions: not causing damage to the normal exploit of works, not causing damage to copyright and owner of copyright; must provide information of  the author and the source and origin of the work. In addition, due to specific characteristics of of various types of works such as architectural works, shaping works and computer programs, cases of (i) making one copy for scientific research or personal teaching purposes and (ii) copying of a work in order to archive in library and research purposes, shall have permission and pay author or owner of copyright for royalties, remuneration according to both parties’ agreement or regulation of law.

Cases of using published works without having permission but paying for royalties, remuneration include:

-A broadcasting organization which uses a published work to make a broadcast which is sponsored, contains an advertisement or which collects fees in any form shall not be required to ask permission but must pay the owner of copyright for royalties or remuneration from using time. Level of royalties, remuneration or other material benefits and payment methods are agreed by parties; If the agreement can not be reached, it shall follow regulation of Government or shall file a petition to Court according to regulation of law;

-A broadcasting organization which uses a published work to make a broadcast which is not sponsored, no advertisement or which do not collect fees in any form shall not be required to ask permission but must pay the owner of copyright for royalties or remuneration from using time according to regulation Government;

Similarly, the use of a work in these two cases must neither affect the normal use of such works nor cause prejudice to the rights of the author or copyright holder, and must provide information being the author's name and the source and origin of the work. Besides, in case of using published work without having to seek permission but royalties or remuneration must be paid shall not be applied to cinematographic works.

If the client needs any other information, requires for further legal advice, or dispute with others on IP matters, our Vietnam IP attorney, copyright lawyers , we will be available for service.

Read More

What Rights Shareholder Holds in Joint Stock Company?

 

 Shareholders are individual or organization that owns at least one share of the joint-stock company and also are owner of the joint-stock company. Along with these roles, their interests are tied to business operations although they may not directly manage the day-to-day company affairs. In order to implement governance, the powers and responsibilities of each interest group such as shareholders, the board of directors, managerial personnel, etc. should be assigned based on the statutory principles and procedures.

According to the regulations on shareholders in the Law on Enterprise 2020, the rights of shareholders can be categorized into the following groups: economic rights, governance rights, information rights, and litigation rights.

Economic rights

Economic right is the right to gain all pecuniary interest with respect to the shares. The purpose of starting a business or investing in securities comes mainly from earning income or gaining profits. Economic rights accordingly include:

-Right to entitlement to dividends

-Right to transfer ownership

-Priority right to acquire the newly issued shares

-Right to entitlement to a portion of the assets after dissolution or bankrupt

-Appraisal Right

Among these above rights, right to entitlement to dividends and right to transfer ownership are the fundamental economic rights of a shareholder.

Dividend of common shares is determined according to the realized net profit and the dividend payment from the company’s retained earnings. Despite right to entitlement to dividends, shareholders are still subject to a number of limitations in law and in fact. Dividend entitlement is determined by the General Meeting of Shareholders based on the recommendation of the Board of Directors, after the company has fulfilled tax obligations and other financial obligations, contributed to reserve fund, paid for previous losses and met the solvency for all due debts and other property obligations. Dividend is not required to be distributed annually. Depending on the business situation, the General Meeting of Shareholders may decide to retain profits for reinvestment.

Besides dividend entitlement from the company’s operating results, shareholders can also gain profits by share transfer. This kind of investment is popular with respect of shares or securities of public companies, investors do not aim for corporate governance rights as well as dividend, they intend to earn benefits by the difference of the market values of stocks, especially when the stock value increases.

Governance rights

Modern corporate governance has two principles, one is to separate ownership and governance and to separate governance and management. It means that the major shareholders should not hold senior managerial positions in the company and Chairperson of the Board of Directors should not be assigned to other senior managerial positions such as General Director and/or Director.

Shareholders may be an individual or organization which they have their own different interests, goals and abilities. The separation between ownership and management makes the situation of whom the owner is and how the share get transferred not to affect the business operation. In the meantime, the separation helps gather professional managers to implement target intended by the company. According to the laws, members of the Board of Directors of a public company concurrently holding several executive titles must be reduced to the minimum to ensure the independence of the Board of Directors, specially the Chairperson of the Board of Directors shall not be the Director/General Director in a public company as of August 1^st, 2020. There are no similar rules applicable to joint stock companies which are not public company.

Attendance, speaking and voting at General Meeting of Shareholders are fundamental in governance right of common shareholders, applicable to all shareholders holding at least one share. ty. In principle, being a shareholder who holds shares of the company regardless of the number has equal rights to attend and vote at the General Meeting of Shareholders. By the General Meeting of Shareholders, the shareholders holding a certain number of shares can impact decisions on some matters such as election, dismissal, and removal of members of the Board of Directors and Controllers, amendment and supplementation of internal documents, major transactions, and others as stipulated in law on enterprise or charter. In addition to the above rights, the majority shareholders also have a number of other rights related to governance as follows:

The shareholder or group of shareholders holding at least 5% of the total number of common shares (charter may require a smaller percentage) is entitled to:

-Call a General Meeting of Shareholders

-Request Board of Controllers to inspect each specific matter relating to management, governance of company affairs if necessary

-Recommend matters to be included in agenda of General Meeting of Shareholders

-The shareholder or group of shareholders holding at least 10% of the total number of common shares (charter may require a smaller percentage) is entitled to nominate candidates for the Board of Directors, Board of Controllers

Information rights

Shareholders have the right to access documents and information of the company. In addition to the basic documents such as the charter, list of shareholders, meeting minutes and resolutions of the General Meeting of Shareholders, shareholders have the right to access to reports related to the business affairs.

However, some information is only reviewed by shareholders who own required percentage of share:

-Access and extract information on full name and contact address as specified in list of shareholders having voting right and list of shareholders having right to attend General Meeting of Shareholder; request to adjust his/her inaccurate information

-Access, extract and scan charter of company, meeting minutes of General Meeting of Shareholder and its resolution

-Access, extract and copy partial or whole list of involved persons and their contracts, transaction of which the company is other party, interests of Board of Directors, Controllers, Directors or General Directors and other managerial positions of company

-Access and extract minutes and resolutions of Board of Directors, annual or mid-year financial reports, reports of Board of Controllers, contracts and transaction approved by Board of Directors and other documents, excepting for documents related to company’s know-how and trade secrets (applicable to shareholder and group of shareholders who own at least 5% of total number of common shares, the charter may require a smaller percentage)

-Access profit and loss statements, finacial reports, governace and management assement reports; inspection reports of Board of Controllers (applicable to shareholder who own shares at least 1 consecutive year, the charter may require a smaller percentage)

Different to common joint stock company, a public company must annouce fully, accurately and promptly the periodic and extraordinary information on business, finance and governace. Other information must be annouced if it influences share price and investment decisions of shareholders and investors.

Litigation rights

The Law on Enterprises has provided a mechanism to request the Court or Arbitration to rescind the resolution of the General Meeting of Shareholders or sue the managerial personnels when they fail to fully and properly implement their tasks, including:

The shareholder or group of shareholders holding at least 5% of the total number of common shares (charter may require a smaller percentage) is entitled to:

-Request to rescind resolutions of the General Meeting of Shareholders when the orders and procedures of calling the meeting and making resolution of the General Meeting of Shareholders seriously violate the regulations of the Law on Enterprises and company’s charter

-However, the resolution of the General Meeting of Shareholders adopted by 100% of the total number of voting shares is legal and effective even when the orders and procedures of calling the meeting and adopting such resolution violates regulations of the Law on Enterprises and company’s charter.

-Request to rescind resolutions of the General Meeting of Shareholders when its provisions violates the laws or company’s charter

-The shareholder, group of shareholders holding at least 1% of the total number of common shares is entitled to:

-Sue members of Board of Directors, Directors, General Directors separately or jointly under certain circumstances

The Chairperson of Board of Directors or the Director or General Director usually acts as the legal representative of the company, representing the company to perform rights and obligations arising from the company’s transactions, representing the company to take proceedings before the court or arbitrator. However, when their interests conflict with those of the shareholders, shareholders have the right to initiate a lawsuit claiming benefits or compensation. The Law on Enterprise also permits shareholders to sue on behalf of the company when the above managerital personnels commit violations, causing damage directly to the company and indirectly to shareholders.

Not all shareholders have the right to sue for the above managerial personnels, only those who own at least 1% of the total number of common shares. This restriction makes sense with respect of public companies, in order to eliminate unfair competition actions conducted by minority shareholders who is controlled by the rival companies because amount of 1% in public company is not a small number.

Similar to a lawsuit against a manager, shareholder or group of shareholders is also required to own at least 5% of the total number of common shares to request rescission of the resolution of the General Meeting of Shareholders if there is violation on substantive law and procedural law. Accordingly, all resolutions of the General Meeting of Shareholders violating the substantive laws or the company’s charter are rescinded at the request of shareholders, but only serious procedural violations may be rescinded. There is no specific instructions for serious procedural violations at this time, the assessment will depend on personal perspective of the court and arbitrator.

Read More

When a Contract is Invalid Due to Non-compliance with Form?

  Generally, contracts for sale and purchase of goods and service contract shall be expressed in verbal or written form or established with specific acts. For types of contract which must be made in writing provided by law, such contract must comply with such form regulation. Particularly, contract for international purchase and sale of goods shall be conducted on the basis of written contracts or other forms of equal legal validity.

There are two cases of non-compliance with form: (i) form of contract is not in accordance with the law and; (ii) contract violates against regulations on notarizing or authorization. It should be noted that the form of contract shall be the conditions for its effectiveness in cases where it is provided by law. The time limit of requiring the court to declare a contract of non-compliance with form invalid is 02 years, from the establishment date of contract. After such time limit, if there is still no request for declaring contract invalid, such contract still remains valid.

When the contract is invalid, the general rule is restoring everything to its original state and returning to each other what have received. The non-compliance with form contract could be valid de facto contract if recognized by the Court's decision when one party or the parties has fulfill at least two third of the obligation contract. Obligations means work whereby one or more entities must transfer objects, rights, pay money or provide valuable papers, perform or not perform certain work for the interests of one or more other entities. However, one party or the parties fulfilling at least two third of the obligation contract will not naturally make such contract valid unless there is decision of the the Court to recognize such. Specifically, according to request of one party, after fully considering conditions mentioned above, the Court shall make a decision on recognizing the validity of such contract.

It is important for parties to have a proper contract with terms and conditions that provide sufficient details with consideration of the nature of the business transactions and the possible resolution when potential disputes arise.  Further, the law governing the contract and the dispute resolution clause which refers to court or arbitration choice should be as clear as possible to avoid confusion and extended time resolving the arisen disputes.

Read More

Scope of Chapter 9 – Investment in CPTPP Agreement

  CPTPP is a new-generation FTA covering many aspects in addition to the traditional areas such as trade of goods, services. Non-traditional areas such as labor, environment, intellectual property, etc. all have significant commitments and are specified in each chapter. Enterprises of state member must meet certain conditions applicable to each area to enjoy respective benefits. As for foreign investment, the host country has the right to refuse to apply benefits to foreign investors or its investment if they do not meet the requirements of the CPTPP.

For avoidance of doubt, investment means every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Forms that an investment may take include: enterprise, forms of equity participation in an enterprise, debt instruments and loans, intellectual property rights, etc. Requirements for enjoying foreign investment benefits are provided indirectly in the way of permitting State Members deny of benefits under some circumstances as stipulated in Article 9.15:

“Article 9.15: Denial of Benefits

1.A Party may deny the benefits of this Chapter to an investor of another Party that is an enterprise of that other Party and to investments of that investor if the enterprise:

(a) is owned or controlled by a person of a non-Party or of the denying Party; and

(b) has no substantial business activities in the territory of any Party other than the denying Party.

2.A Party may deny the benefits of this Chapter to an investor of another Party that is an enterprise of that other Party and to investments of that investor if persons of a non-Party own or control the enterprise and the denying Party adopts or maintains measures with respect to the non-Party or a person of the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise or to its investments.”

Most commitments in the Investment Chapter apply to only investors and its investment that come from CPTPP Member States. However, Vietnam may deny the benefits to an investor of State Member that is an enterprise and to investments of that investor if the enterprise:

• is owned or controlled by an individual or enterprise of a Non- State Member.
• is owned or controlled by an individual or enterprise of Vietnam.
• has no substantial business activities in the territory of any State Member other than Vietnam.

By the above permitted denial, the CPTPP applies investment benefits selectively, restricts individual or enterprise of a Non-State Member to taking advantage of benefits from CPTPP. When performing investment licensing procedures in Vietnam, foreign enterprises that come from State Member must present internal documents indicating the owner or controller to demonstrate that their business is out of permitted denial. Besides, these investors must have substantial business activities in the territory of any State Member other than Vietnam. It is necessary to wait for more guidance from the competent state authorities on implementation of CPTPP.

The CPTPP Agreement restricts investment under its protection. CPTPP protects investment which is in its territory of an investor of CPTPP State Member in existence as of the date of entry into force of CPTPP for those State Members or established, acquired, or expanded thereafter. Therefore, the investments ended or terminated prior to the effective date of CPTPP in Vietnam and host country will not gain the benefits under CPTPP.

In the meantime, the investor could also challenge the denial decision of the host country through the dispute settlement mechanism between investor and state (ISDS).

Vietnam has ratified the Comprehensive and Progressive Agreement for Trans-Pacific Partnership – CPTPP on Jan 14th, 2019. This Agreement include 11 countries New Zealand, Canada, Japan, Mexico, Singapore, Brunei, Chile, Malaysia, Peru, Australia and Vietnam.

Read More

What Procedures for Conciliation and Settlement of Land Dispute?

  Land dispute is one of the most complicated problems which arises regularly in daily life in Vietnam. Land dispute is very diverse, which may be dispute over land use right, ownership of house attached to land use right related to inheritance, divorce, transfer and transformation transaction, leasing, sub-leasing, mortgage, etc.

What is land dispute?

Land dispute means a dispute over the rights and obligations of land users among two or more parties in a land relationship.

In case of conflict over land, what should parties do to settle dispute? Land dispute can be settled in two resolutions, in court or settlement procedures at state administrative agencies.

Firstly, no matter what resolution parties choose, conciliation procedure at commune-level People’s Committee of the locality where the disputed land is located is mandatory condition and procedure. In particular, if conciliation by parties cannot be achieved, the parties may send a petition for conciliation to the commune-level People’s Committee of the locality where the disputed land is located. The conciliation procedure carried out at the commune-level People’s Committees shall be completed within 45 days from the date which the commune-level People’s Committees receives a petition for settlement of land dispute. The conciliation may take place only when all the disputing parties are present. If any of the disputing parties is absent for the second time, the conciliation shall be regarded as unsuccessful.

If the conciliation at a commune-level People’s Committee fails, land dispute shall be settled according to one of the following two cases. Firstly, the land dispute in which the party possesses a certificate or any of the papers prescribed in Article 100 of Land law and the dispute over assets attached to land shall be settled by the People’s Court. Secondly, regarding the land dispute in which the party does not possess above papers, the parties may choose between the following two options of settlement: filing a written request for dispute settlement with a competent People’s Committee or filing a lawsuit with a competent People’s Court in accordance with the law on civil procedures.

Regarding the second case, when the party choose to settle at competent People’s Committee, the chairperson of the district-level People Committee is responsible for the settlement of disputes among households, individuals and communities. If the parties disagree with the settlement decision, they are entitled to claim with the chairperson of the provincial-level People’s Committee or to file a lawsuit at a People’s Court in accordance with the law on administrative procedures.

In case one party is an organization, a religious institution, an overseas Vietnamese or a foreign-invested enterprise, the chairperson of the provincial-level People’s Committee is responsible for the settlement. If the parties disagree with the settlement decision, they are entitled to file claim with the Minister of Natural Resources and Environment or to file a lawsuit with a People’s Court in accordance with the law on administrative procedures. It should be noted that the legally effective decision on dispute settlement must be strictly abided by the parties. If the parties fail to comply, the decision shall be enforced.

The settlement of land disputes in which the disputing parties have no certificate or any of the papers prescribed in Article 100 of the Land Law and Article 18 of Decree 43/2014/ND-CP detailing a number of articles of the land law shall be based on the following grounds: Evidences on the origin and use process of the land presented by the disputing parties; Actual land areas currently used by the parties in addition to the disputed land area and the average land area per household member in the locality; Conformity of the current use status of the disputed land with land use plans already approved by competent state agencies; Preferential treatment policies toward persons with meritorious services to the State; Regulations on land allocation, land lease and land use rights recognition.

It is suggest to consult with land dispute lawyers for advice and representation at early stage for dispute avoidance or dispute resolution.

Read More

Preferential import and export tariff according to EVFTA for the period 2020-2022

 

 On September 18, 2020, the Government issued Decree No. 111/2020/ND-CP on Vietnam's Preferential Export Tariffs and Special Preferential Import Tariffs to implement the Free Trade Agreement between The Socialist Republic of Vietnam and the European Union (EVFTA Agreement) for the period 2020-2022.

Accordingly, the Decree stipulates the Preferential Export Tariff, the Special Preferential Import Tariff of Vietnam to implement the EVFTA Agreement and the conditions for enjoying preferential export tax rates and special preferential import tax rates according to this Agreement.

The preferential export tariff specified in Appendix I to this Decree includes product code, description of goods, and preferential export tax rates for different stages when exporting to a territory under the EVFTA Agreement, including: European Union member territories; United Kingdom of Great Britain and Northern Ireland for each code.

Goods exported from Vietnam to which the preferential export tax rates are applied must satisfy the following conditions: to be imported into any territory specified in the EVFTA Agreement, including member territories of the European Union, United Kingdom of Great Britain and Northern Ireland; have transport documents (copy) showing the destination is the above territories; have the import customs declaration of the export consignment of Vietnamese origin imported into the aforesaid territories (the copy and translation in English or Vietnamese in case the language used on the declaration is not English).

Vietnam's special preferential import tariff for the implementation of the EVFTA Agreement is specified in Appendix II to this Decree, including product code, description, and special preferential import tax rates according to stages are imported from the European Union member territory; United Kingdom of Great Britain and Northern Ireland; The Principality of Ando; The Republic of San Morocco and the Socialist Republic of Vietnam (Goods imported from non-tariff zones to the domestic market) for each product code.

Imported goods eligible for special preferential import tax rates under the EVFTA Agreement must satisfy the following conditions: in the Special Preferential Import Tariff specified in Appendix II to this Decree; be imported into Vietnam from the member territory of the European Union; United Kingdom of Great Britain and Northern Ireland; The Principality of Ando; Republic of San Mary; and the Socialist Republic of Vietnam (Goods imported from non-tariff zones to the domestic market); meeting the rules of origin of goods and having proof of origin in accordance with the provisions of the EVFTA Agreement.

The provisions of this Decree only apply to goods exported from Vietnam to the the United Kingdom of Great Britain and Northern Ireland and goods imported into Vietnam from the United Kingdom and Northern Ireland for the period from August 1, 2020, to the end of December 31, 2020.

This Decree takes effect from the date of signing.

Read More

How to Distinguish between Deposit and Advance Payment?

 

 In commercial transactions, it is very common for one party to give the other party an amount of money before the contract being performed. Should this amount be considered as deposit or advance payment?

Deposit is one of security measures for the performance of contract obligations. According to regulation of Civil Code 2015, deposit is an act whereby one party (hereinafter referred to as the depositor) gives to other party (hereinafter referred to as the depositary) a sum of money or precious metals, gemstones or other valuable things (hereinafter referred to as the deposited property) for a period of time as security for the entering into or performance of a contract.

Upon a contract being entered into or performed, any deposited property shall be returned to the depositor, or deducted from the amount of payment obligation. If the depositor refuses to enter into or perform the contract, the deposited property shall belong to the depositary. In case the depositary refuses to enter into or perform the contract, the depositary must return the deposited property and pay an amount equivalent to the value of the deposited property to the depositor, unless otherwise agreed.

It can be seen that the purpose of deposit is to ensure the entering into or performance of a contract. Due to the fact that its nature is a security measure for the performance of contract obligations, sanction is set in regulation of deposit in case one party refuses to perform the agreement.

In practice, the advance payment can be understood that the obligor pays the obligee a sum of money in advance and this amount is regarded as in-advance performance of a payment obligation. As the nature of the advance is not a security measure for the performance of contract obligations, there is no fine rising from the advance if one party refuses to perform the agreement. Further, when a contracting party gives to the other party a sum of money, which is not clearly identified by the parties as a deposit or an advance, such amount shall be considered an advance payment.

It is important to distinguish the difference between deposit and advance payment to avoid potential disputes in performance the contract or consult with dispute resolution lawyers at early stage of the dispute for proper actions.

Read More

Whom is Exempted from Work Permit Since 2021?

 

 On December 30, 2020, the Government issued Decree No. 152/2020/ND-CP regulating foreign workers working in Vietnam and recruiting and managing Vietnamese employees to work for the foreign employers in Vietnam.

In which, foreign workers in Vietnam are not required to be granted work permits include:

The employee is the owner or capital contributor of a limited liability company with a capital contribution of at least 3 billion VND; Chairman of the Board of Directors or a member of the Board of Directors of a joint stock company with a capital contribution of at least 3 billion VND;

Intra-corporate transferees within 11 service sectors in Vietnam's service commitment schedule with the World Trade Organization, including: business services, communication services, construction services, distribution services, educational services, environmental services, financial services, health services, tourism services, recreational and cultural services, and transport services;

The person responsible for establishing a commercial presence;

The employee enters Vietnam to work as manager, executive, expert or technical worker for a working time of less than 30 days and not more than 3 times a year;

The employee who enters Vietnam for a period of less than 03 months to offer services;

The employee enters Vietnam for a period of less than 03 months to handle complicated incidents, technical or technological situations that affect or risk affecting production and business that Vietnamese experts and the foreign experts currently in Vietnam cannot handle it;

Foreign lawyer who has been granted a law practice license in Vietnam in accordance with the Law on Lawyers; The employee is licensed by the Ministry of Foreign Affairs to operate information and press in Vietnam in accordance with the law; The person certified by the Ministry of Education and Training to enter Vietnam for teaching and researching;

The employee enters Vietnam to provide professional and engineering consulting services or perform other tasks intended for research, formulation, appraisal, supervision, evaluation, management and execution of programs and projects using official development assistance (ODA) in accordance with regulations or agreement in international treaties on ODA signed between the competent authorities of Vietnam and foreign countries;

The employee is sent to Vietnam by competent foreign agency or organization to teach and research at international schools under the management of foreign diplomatic missions or the United Nations; establishment and organization established under the agreement which Vietnam has signed and acceded to;

The employee enters Vietnam to implement an international agreement to which a central or provincial authority is a signatory as per the law;

Person obtains an official passport to work for a regulatory agency, political organization, or socio-political organization;

Relatives of members of foreign representative missions in Vietnam;

In cases where the provisions of an international treaty to which the Socialist Republic of Vietnam is a signatory;

Head of representative office, project or is responsible for the activities of international organizations, foreign non-governmental organizations in Vietnam;

The employee is a volunteer;

The student studies at a foreign school or training institution which has a probation agreement with an agency, organization or enterprise in Vietnam; or a probationer or apprentice on a Vietnam sea-going ship;

The employee is a foreigner who marries a Vietnamese and lives in the territory of Vietnam.

This Decree takes effect from February 15, 2021.

Read More

How Pilot Program Using Mobile Money for Payment is Regulated?

 

 With the development of the information technology industry, there is a trend to simplify the process and procedures for making transactions making it becomes easier, faster and more convenient for users. Hence mobile money has become a new trend in transferring money, making payment in many countries.

To develop non-cash payments, increase access and use of financial services, especially in rural, mountainous, remote, border and island areas of Vietnam, as well as taking advantage of infrastructure, data, telecommunications networks, reducing social costs to develop, expanding non-cash payment channels on mobile devices, bringing convenience to users, on March 9, 2021, the Vietnam Prime Minister issued Decision No. 316/QD-TTg on approving the pilot implementation program of using telecommunications accounts to pay for goods and services with small value (Mobile - Money).

The pilot subjects are enterprises that have a license to provide electronic wallet payment intermediary services and a license to establish public mobile terrestrial telecommunications networks using radio frequency bands or the subsidiary is licensed by the parent company to establish a mobile public ground telecommunication network using radio frequency bands and allows the use of telecommunications infrastructure, networks and data.

Individual customers who register and use the Mobile-Money service must provide an Identification Card (ID)/ Citizen Identification/ Passport that coincides with the customer's mobile subscriber number registration information and Identification and authentication piloted by enterprises in accordance with the Government's regulations on mobile subscriber registration; and the number of mobile subscribers must have the period of activating and using continuously for at least three consecutive months up to the time of registering to open and use Mobile-Money service. Each customer is only allowed to open one Mobile-Money account at each pilot enterprise.

The pilot implementation is applied nationwide, in which the pilot enterprise must give priority to the pilot implementation of Mobile-Money service in rural, mountainous, remote areas, Vietnam's borders and islands.

The pilot enterprise is only allowed to provide Mobile-Money service to transfer money and pay for legal goods and services in Vietnam in accordance with the current law to serve the needs of daily life; the pilot implementation of Mobile-Money service only applies to legal domestic transactions in accordance with Vietnamese law provisions in VND, not to make payment/ remittance for goods and services provided across borders.

The pilot implementation period is set to be two years from the time the first enterprise conducting the pilot is approved for pilot implementation of Mobile-Money service. Transaction limit must not exceed 10 million VND/month/Mobile-Money account for total transactions: withdrawal, money transfer and payment.

Financial and banking lawyers at ANT Lawyers, a law firm in Vietnam with offices in Hanoi, Ho Chi Minh City and Da Nang will always follow up with new developments in regulation and provide clients with update.

Read More

Can Foreigner Authorize Other Person to Perform Transfer of Properties in Vietnam?

 

 In the complicated situation of the Covid-19 epidemic, the Government continued to implement policies to restrict entry to Vietnam, thus many transactions were canceled or delayed. That has caused many obstacles for foreign individuals and organizations wishing to perform transactions in Vietnam.  We refer to the transfer of home ownership for foreign individuals who cannot enter Vietnam to participate in signing transfer contracts and other related transactions i.e. sell or buy an apartment or a house located in Vietnam.

Pursuant to the law on housing, foreign organizations and individuals have the right to own house in Vietnam, before the time limit of the homeownership, the homeowner is entitled to gift or sell their house(s) to entities eligible for the homeownership in Vietnam; if not, their house(s) shall be under ownership of the State. Regarding the house ownership term, if a foreign organization or individual sells or gifted to a domestic organization, household, individual, or a Vietnamese citizen residing overseas, the buyer or recipient will acquire a long-term ownership of the house. If the house is sold to a foreign organization or individual eligible to own housing in Vietnam, the buyer or recipient may own the house for the remaining period. When this period expires, if the owner wishes to have this period extended, the State shall consider granting an extension. The seller or giver must pay tax and other amounts to state budget as prescribed by Vietnam’s law.

In accordance with the law on housing transactions, the seller or transferor of the commercial house sale and purchase contract must meet the following conditions:

• He/she is the homeowner, or the person permitted and authorized by the homeowner to enter into housing as prescribed in this Law and law on civil; if the agreement of commercial housing is transferred, he must be the buyer for housing of the investor or the transferee of the agreement on housing sale;
• If the entity is a person, he must have full civil capacity to enter into transactions in housing as prescribed in law on civil; if the entity is an organization, it must have legal personality.

Article 195 of the 2015 Civil Code stipulates: "A person who is not an owner of property has the right to dispose of property only under the authorization of the owner or according to the provisions of law."

Clause 2 Article 55 of the Law on Notarization 2014 stipulates: “In case both the authorizing party and authorized party cannot appear together at the same notarial practice organization, the authorizing party shall request the notarial practice organization of the place of residence of the authorizing party to notarize the authorization contract; the authorized party shall request the notarial practice organization of the place of residence of the authorized party to further notarize the original of this authorization contract and complete procedures for notarization of the authorization contract.”

In order to perform the house purchase and sale transaction or in other words to buy an apartment or sell a house in Vietnam, the parties to the house transaction need to agree to make a sale contract or a document on the transfer of a commercial house sale and purchase contract. In case a foreign house owner cannot enter directly to sign a contract, he/she may authorize another individual or organization in Vietnam to perform instead. However, the authorization document needs to be notarized at the competent authority. In case a power of attorney is notarized at a competent agency in a foreign country, it is required to be notarized, legalized, and authenticated in accordance with regulations of the foreigner country (apostille) before that document can be used in Vietnam.

Read More

Conditions for Foreign Experts to Work in Vietnam

 

 On December 30^th, 2020, Decree 152/2020/ND-CP has been issued regulating on foreigners working in Vietnam and recruiting, managing Vietnamese employees working for foreign organizations and individuals in Vietnam. Decree 152 clearly defines the forms and conditions for foreign employees to be eligible to work in Vietnam, and provides conditions for exemption from work permits in Vietnam, recruitment of foreign employees, renew and re-issue work permits.

According to current regulations, foreign citizens come to work in Vietnam for the purposes of performing employment contracts; performing intra-company transfer program; performing contracts or agreements on business, trade, finance, banking, insurance, science and technology, culture, sports, education, vocational training and health; providing services under contracts; offering services; working for foreign non-governmental organizations or international organizations in Vietnam that have been granted with operating licenses in accordance with the Vietnam law; working as volunteers; taking charge of establishing the commercial presence; working as managers, executives, experts, technical workers; performing packages or projects in Vietnam; or accompanying members of foreign representative bodies in Vietnam who are authorized to work in Vietnam under an international treaty to which the Socialist Republic of Vietnam is a signatory as their relatives.

For the conditions for foreign employees to work in Vietnam, Decree 152 has some notable new points, which according to Clause 3, Article 3 of this Decree, an expert who wish to work in Vietnam requires a foreign worker who obtains at least a bachelor’s degree or equivalent and at least 03 years’ experience in his/her training field in corresponding with the job position/job assignment that he/she will be appointed in Vietnam or obtains at least 5 years' experience and a practicing certificate in corresponding with the job position that he/she will be appointed in Vietnam. There are opinions that this regulation makes it difficult for many foreign experts to come to Vietnam to work because in fact there are many experienced people who do not have appropriate qualifications and certificates.

Foreign experts, managers, executives or foreign technicians working in Vietnam for up to 30 days and no more than 3 times a year may be exempted from work permits. Cases eligible for exemption from work permits (or a certificate of exemption from work permits) must be notified to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs of the provinces and centrally-run cities regarding personal information of the foreign worker and the expected start /end date, at least three days prior to the first scheduled working date in Vietnam.

At least 30 days from the expected date of employment of the foreign employee, the employer (except contractors) is responsible for determining the demand to use foreign workers for each job position that the Vietnamese employee has not yet met requirements of the position and report to the Ministry of Labor, War Invalids and Social Affairs or the People's Committee of the province where the foreign worker is expected to work. During the implementation process, if there is a change in the demand for foreign employees, the employer must also report at least 30 days in advance.

Read More

How to Terminate the Employment Contracts Due to Economic Reasons?

 

 Termination of a labor contract is an event that terminates the employment relationship between the employee and the employer. In particular, there are many cases of termination of labor contracts such as the labor contract expires, the work stated in the labor contract has been completed, both parties agree to terminate the labor contract, the employer lays off the employee due to structural or technological changes or because of economic reasons, merger, consolidation or division of the enterprise or cooperative,…

In case more than one employee face the risk of unemployment for economic reasons, the employer shall propose and implement a labor utilization plan in accordance with labour code. Specifically, the labor utilization plan must contain the following main contents: list and number of employees who continue to be employed, employees sent for re-training to continue using; list and number of retired employees; list and number of employees transferred to work part-time; employees must terminate labor contracts and measures and financial sources to ensure the implementation of the plan.

In case the employer cannot employ and have to dismiss employees, the employer shall pay job-loss allowances to the employees. Accordingly, the employer shall pay a job-loss allowance to an employee who loses his/her job and has worked regularly for the employer for 12 months or longer. The job-loss allowance is equal to 1 month’s wage for each working year, but must not be lower than 2 months’ wage.

The working period used for the calculation of job-loss allowance is the total time during which the employee actually works for the employer minus the time during which the employee benefits from unemployment insurance in accordance with the Law of Social Insurance and the working period for which the employer has paid a severance allowance to the employee. The wage used for the calculation of job-loss allowance is the average wage in accordance with the labor contract during 6 months preceding the time the employee loses his/her job.

The dismissal of more than one employee in accordance with this regulation may be implemented only after discussion with the representative organization of the grassroots-level employees’ collective and notification 30 days in advance to the provincial-level state management agency of labor.

It is important for the employer to consult with dispute lawyers specializing in labour matters for the avoidance of potential dispute with the employee, and cause negative social impact when deciding to terminate contract due to economic reasons.

Read More

Philippine initiated anti-dumping investigation on cement from Viet Nam (AD case no. AD01-2021)

 

 On April 20^th, 2021, Department of Trade and Industry of the Philippines (DTI) has issued the notice of initiation of an investigation on the application for an anti-dumping duty on cement from Viet Nam (AD case no. AD01-2021).  Request for investigation on application for an anti-dumping is the most international trade remedy under WTO Agreement which Vietnam company should hire local international trade lawyers to respond to authority in the Philippines.

According to the notice, DTI has officially received properly documented applications from Cemex Philippines, Holcim Philippines, Inc., and Republic Cement Builders and Building Materials, Inc., for the initiation of an anti-dumping investigation on cement from Viet Nam. These companies’ output of like product constitutes 70% of the total domestic production of cement. The applications allege that cement products are being imported from Viet Nam at dumped prices which cause material injury to the local industry.

The Department acting under Section 3 (a) of RA8752, the Philippines Anti-Dumping Act of 1999, reviewed the evidence adduced in the applications and has determined the existence of sufficient evidence to justify the initiation of an investigation. The products covered by the investigation are cement classified under AHTN Codes 2523.2990 and 2523.9000. The period of investigation (POI) for dumping is from July 2019 to June 2020, while the POI for injury is from 2017 to June 2020. For 2019 (July to December), dumping margins are alleged to range from US$1.75/MT to US$5.36/MT or 3.49% to 10.66%; For 2020 (January to June), the dumping margins are alleged to range from US$1.66/MT to US$6.54/MT or 3.31% to 14.46%.

Interested parties are invited to submit their comments, evidences, and information or reply to the questionnaire to dispute the allegations contained in the application. Submissions are made within thirty (30) days from receipt of the notice.

It should be noted that all uncooperative behaviors or insufficient cooperation will lead to the result that the Investigating Body will use adverse available evidence or apply anti-dumping duty proposed by the applications. In case of being applied anti-dumping duty, competitive advantage will decline, which results in the risk of losing a part or the whole export market to domestic manufacturing industry of the Philippines and/or competitors from other countries.

Read More

How Probation is Regulated in Vietnam Labour Code?

 

 Probation is an agreement between an employee and an employer on a probationary job in a certain period of time in accordance with the provisions of law. Before entering into a labor contract, the employer and the employee should go through a probationary period to determine the long-term cooperation and attachment between the parties. The probation should comply with the provisions of the Labor Code and relevant guiding documents. The Labor Code 2019 comes into force as of January 1^st, 2020, a number of new regulations accordingly are issued in connection to the probation, which each company should review the matter with its labour lawyers in Vietnam for compliance.

Regarding the circumstances which are permitted to enter into a probationary contract, this contract is not applicable to the labor term which is below 01 month.  The Labor Code 2012 does not require that the probationary provision must be stipulated in the labor contract. Accordingly, an employer and an employee may negotiate on the probation, the rights and responsibilities of the parties during the probation period. The parties may conclude a probation contract if there is an agreement on the probation. If the probation work meets the requirements, the employer shall conclude an employment contract with the employee. From these provisions, it can be understood that the employee and the employer should make a separate probationary contract. The labor contract should be signed when the probation is completed and the employee meets the recruitment requirements of the employer. According to the latest provisions in the Labor Code 2019, the employer and the employee may agree on the probation stated in the labor contract or a separate probationary contract. If the probationary provision is stipulated in the labor contract, the employer shall continue performing the existing labor contract at the end of the probationary period once the employee satisfies the requirements. Otherwise, a new labor contract shall be entered into.

The Labor Code determined the restriction of the probation period based on the nature and complexity of the job. The probationary period previously was limited to no more than 60 days for jobs requiring a college or higher professional qualification. Currently, the probationary period is permitted to extend up to 180 days for the executives. The executives play an important role in business and operation of the enterprises, including owner of a sole proprietorship, a partner of a partnership company, chairperson or member of the Board of Member, President of a company, President or member of the Board of Directors, Director/General Director, or holder of another managerial position prescribed in the company’s charter (applicable to the enterprise with no state capital)

Another amendment to the cancellation of the probationary contract, the Labor Code 2019 removed the limitation of the right to cancel. Accordingly, during the probationary period, each party has the right to cancel the probationary contract or labor contract entered into without prior notice and compensation. On the contrary, the employee and the employer may cancel the probation if the probationary job does not meet the requirements that the parties have agreed upon under the Labor Code 2012

Probationary periods are primarily designed to test out whether both employer and employee to match each other at the start of an employment relationship. The enterprises as employers need to have a clear understanding of the principles of entering into a labor contract as well as a probationary contract to avoid potential dispute in Vietnam.

Read More

How Does Dispute Settlement Mechanism of WTO Work?

 

 The dispute settlement mechanism of the World Trade Organization (WTO) is a succession of the dispute settlement rules that has been effective for nearly 50 years in the history of GATT 1947. The basic objective of this dispute resolution mechanism is to achieve a positive solution to the dispute. Vietnam is member of WTO therefore it could refer to dispute settlement mechanism of WTO in dispute against other country member.

When a dispute arises at the WTO, the parties will first conduct consultations to come up with a mutually agreed solution to resolve the case (Consultation - the stage of mediation), as usual in each case there is the participation of third parties (who are members of significant interest and desire to participate in the dispute resolution process), if they feel a significant interest in the case and should be considered by the panel. In the case of an unsuccessful inquiry, a panel of 3 to 5 members will be established and tasked with examining a particular issue in dispute on the basis of WTO rules cited by the claimant's country.

After the establishment of a panel to review the complaint, the first thing that the panel needs to do is to set a timetable for its proceedings (Article 12.3 of the DSU). The panel procedure usually covers the contents set forth in Article 12 and Annex 3 of the DSU, including certain flexibility to ensure the quality of the report without delaying the proceedings. Setting a timetable helps the parties understand the contents and deadlines for each dispute, helping them be more proactive in presenting evidence, bases and arguments in their submitted documents.

After the hearings take place, the panel will enter the internal discussion phase (deliberation), to review the assessment of relevant legal, practical issues in accordance with the provisions of the WTO, the deliberation must be kept secret. These reports were drafted without the presence of the parties to the dispute, but only according to the content of the information provided and the comments made earlier. Individual opinions of jurors presented in a panel report shall not include the names of speakers of such opinions.

After the final report will be sent to the parties to the dispute within 2 weeks after the panel has concluded the mid-term review. Normally, every report of the panel has very large content, to facilitate the study of review by the appellate body and to quote case law, the report must show the table of contents and paragraphs which are separate numbered in the order of the report. If there is no appeal, the dispute resolution process will immediately go to the implementation stage after the DSB adopts a panel report. If there is an appeal, the case will be reviewed at the Appellate level.

It is important for Vietnam as member of WTO to be aware of the dispute settlement mechanism and fully prepared when having dispute against other country members in international trade dispute matters.

Read More