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.

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Questionnaire in Anti-dumping Measures on Welding Materials From China, Thailand and Malaysia (AD15)

 

 On March 18^th, 2021, Ministry of Industry and Trade issued Decision no. 947/QD-BCT on conducting an investigation to apply anti-dumping measure on some types of welding materials with HS code 7217.10.10; 7217.30.19; 7217.90.10; 7229.20.00; 7229.90.20; 7229.90.99; 8311.10.10; 8311.10.90; 8311.30.91; 8311.30.99; 8311.90.00 originating from People's Republic of China (China), Kingdom of Thailand (Thailand) and Malaysia (Product under investigation) (code AD15).

In AD15 case, Trade Remedies Authority of Vietnam (Investigating Authority) has sent questionnaire on quality and value to all foreign manufacturing/exporting enterprises which Investigating Authority knows in order for them to answer investigating questionnaire. The deadline for answering the questionnaire is before 5pm of April 19^th 2021 (Hanoi time).

Content of this Questionnaire includes:

• General information: Company details; Legal representative
• Product under investigation: Scope of the investigation; Description of product under investigation
• Information of quantity and value: Production and business activities of company in regard to product under investigation; Affiliate companies; Production capacity and total volume of product under investigation of the company and its affiliates during the POI period; Total sales volume and total value of sales revenue from the Company's product under investigation during the investigation period; Net sales of the Company, excluding taxes and discounts
• Other information.

Regarding domestic producers and importing enterprises, the Investigating Authority has issued the investigating questionnaire in order to collect information, figures for this case. The deadline for answering the questionnaire is before 5pm of May 07^th 2021 (Hanoi time).

Content of the Questionnaire for domestic producers includes:

• General information of company: Company; Individuals and organizations that control the activities of the Company; Legal representative; Operational links with other companies or persons in production - business activities; Other product; Accounting/financial practices
• Domestically produced like product: Description; Product Control Number PCN; Company Control Number CCN; Technical description and production process of the like product
• Production, purchases and stocks: Production and production capacity; Purchases of the like product or product under investigation; Stocks of finished product;
• Sales: Total sales of the product under investigation produced by company; Resales; Internal use
• Distribution system and selling prices: Distribution system and channels of sale; Price setting for the like product
• Transaction by transaction listing: Sales transactions in Vietnam during POI; Explanation of the apportionment of costs to transactions; Credit notes
• Cost of production: Cost accounting system; Production process; Cost of production; Different levels of purity; Suppliers of direct materials
• Profitability: Profitability of the like product during investigation period; Profitability of the overall company; Profit in the absence of injurious dumping ; Cash flow for the like product; Investments; Ability to raise capital; Return on investment (ROI) and assets (ROA)
• Employment and wages: Employment; Labor cost
• Other questions

Content of the Questionnaire for importing enterprises includes:

• General information of company: Company; Individuals and organizations that control the activities of the Company; Legal representative; Operational links with other companies or persons in production - business activities; Other product; Accounting/financial practices
• Imported product under investigation: Description; Details of the imported product; Product comparison
• Production, purchases and stocks: General information of sales; Purchase of product under investigation; Product under investigation originated from China and/or Thailand and/or Malaysia; Stocks
• Sales: Introduction
• Profitability: Profitability; Price setting
• Other questions

Our international trade and competition lawyers at Company of law will always follow the development from authorities to provide update to our clients.

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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.

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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.

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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.

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Extension of Submission Duration of the Questionnaire in Investigation on the Anti-dumping Case AD15

 

 On April 02^nd, 2021, Trade Remedies Authority of Vietnam - Ministry of Industry and Trade (Investigation Body) has issued the investigation questionnaire for the interested parties in AD15. Accordingly, the deadline for receiving the full answer is 5pm of May 7^th 2021.

Investigation Body has received some requests for extending duration of answering the questionnaire for the interested parties in AD15.

In order to facilitate for the interested parties to fully cooperate, pursuant to Article 35.2 of Decree 10/2018/ND-CP on January 15^th, 2018 of Government on detailed regulations of some provisions of Law on foreign trade management of trade remedies, the Investigation Body extends the duration of receiving the answer for the interested parties in AD15 to 5pm on June 05^th, 2021. The response will be considered properly received when the Investigation Body receives full hard copies and soft copies before this deadline.

Trade Remedies Authority of Vietnam propose the interested parties implement other requirements according to the instructions in the questionnaire issued on April 08^th 2021.

Our international trade and competition lawyers at  Law firm in Vietnam will always follow the development from authorities to provide update to our clients.

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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.

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