Dialogue With Theme “Administrative Reform: A Key Role in EVFTA Implementation”

 

 On June 30^th, in Hanoi, European Chamber of Commerce in Vietnam (“EuroCham”) and Prime Minister’s Advisory Council for Administrative Procedure Reform held the Dialogue.  With theme “Administrative Reform: A Key Role in EVFTA Implementation”, the Dialogue is to discuss administrative reform ahead of the implementation of the EU-Vietnam Free Trade Agreement (“EVFTA”) which  enters into force on August 1^st. The Dialogue brought together many ministries and sectors; EuroCham; diplomatic missions; journalists; numerous representatives of the business community, … to discuss how administrative reform can help to unlock the full potential of the EVFTA. Specially, the event also featured the launch of EuroCham’s 12^th Whitebook publication.

The successful implementation of EVFTA in 2020 is very important.  In order for EVFTA to come into effect, Vietnamese competent authorities, Europe and enterprises needed to continue implementing solutions to ensure the effectiveness of implementation, including the establishment of EVFTA Business Council for reviewing the challenges in the implementation process and coordinating. The more important thing is Vietnam's efforts to implement administrative reforms, creating an open investment environment for enterprises.

At the event, 17 difficulty groups of European enterprises have been stated (pharmaceutical, medical equipment, intellectual property, labor, law enforcement, food, agriculture, automotive industry, motorbike, digital technology, tax and transfer pricing, tourism-hotel …) related to field of state management and settlement of Ministries, sectors and authorities … Most of the reflections and recommendations of the enterprises are from the practice of production and business activities.

In fact, Vietnam has made many administrative procedure reforms, from processing dossiers and  documents, handling manual works to processing dossier and documents, solving works on electronic, non-paper environment; continue to cut administrative procedures, business conditions, products and goods subject to specialized inspection. The resolution of administrative procedures under the "One-door" and "One-stop-shop" mechanism has received many positive feedbacks.

EuroCham has developed clear recommendations, orientations and analysis to complete the legal framework in the context of EVFTA implementation in a very wide range. They are issues related to case law, competition, commercial mediation activities, dialogues at the Court, the right to appeal, the validity of arbitral awards, commercial mediation, antitrust, public-private partnership (PPP), real estate, "conditional" business.

One of the remarkable proposals given is the proposal to reduce many taxes this year. Specifically, EuroCham proposed reducing by 50% for corporate income tax, reducing by 50% of personal income tax, reducing by 50% for VAT and reducing by 50% compulsory social security contributions. Remarkably, relating to reducing by 50% of registration tax-fee of domestic assembled cars, Whitebook requests “the removal of a discriminatory taxation reduction applying only to locally assembled vehicles, and recommend applying it to all automotive assemblers, importers and dealers of new vehicles”. In addition to above proposals, EuroCham also requests more stimulus packages that could bolster the economy after Covid-19.

Regarding to Business Confidence Index BCI, inspite of reduction, EuroCham representative predicted this index will recover soon. Regarding mergers and acquisitions, M&A is also expected to continue to grow more quickly in 2020, especially in the context of the EVFTA Agreement ratified.

The EuroCham’s Whitebook publication, the annual report of EuroCham, is also launched which summarises the important issues for the business activities of 17 sector committees under EuroCham, together with recommendations that the Vietnamese Government can implement to improve the domestic business environment and enhance trade and investment with the EU.

Whitebook 2020 of Trade & Investment issues implemented by EuroCham, developed recommendations to complete the legal framework and policies to implement the EVFTA Agreement.

The publication of the Whitebook is to continue promoting positive progress in administrative reform, streamlining business conditions, strengthening the business and investment enviroment, sharing the goal of attracting Foreign Direct Investment (FDI) with Vietnam Government. If the recommendations of EuroCham are thoroughly considered by the Government, more and more European businesses will invest in the country in the future.  This important publication reflects the sincere wishes of the European business community in supporting the Government's reform program and helping Vietnam more attractive, more competitive and more friendly towards enterprises.

Vietnam acknowledged EuroCham’s efforts in the launch of the publication and appreciated the focus of this year’s Whitepaper on administrative reform – an essential process for the smooth implementation of the EVFTA. This publication has reflected the desires of the European business community to promote the improvement of the business environment in Vietnam.

The dispute resolution lawyers at ANT Lawyers contributed to write chapter 5, Commercial Mediation chapter of the Whitebook.

Vietnam Authority Received Request to Investigate Anti-Dumping Case of H-shaped Steel Product from Malaysia

 

 On April 29^th, 2020, Trade Remedies Authority of Vietnam (TRAV) acknowledged the Dossier on request of investigation to impose the anti-dumping measures to H-shaped steel product originated from Malaysia from the companies representing the domestic industry (Requester).

On July 10^th, 2020, TRAV had confirmed the sufficiency of the dossiers according the the laws on trade remedies.

Within 45 days from the date of receiving sufficient and lawful dossier, TRAV will assess dossier to submit Minister of Ministry of Industry and Trade for consideration whether to process the investigation.

The assessment’s contents includes:

-Identify the legal representative status of the domestic industry of organizations and individuals who submit dossier in accordance with the Law on Foreign Trade Management;

-Define evidence on the dumping of imported goods that cause or threaten to cause significant losses to a domestic manufacturing industry or substantially prevent the formation of a domestic manufacturing industry.

In order to serve the assessment process, as well as to ensure the legitimate rights and interests of the enterprise, TRAV recommends that the domestic enterprises manufacturing / trading in the same goods mentioned above provide the following information:

-Enterprise’s information;

-Manufacturing production of H-shaped steel product;

-Enterprise’s opinion on the case (to agree, oppose, have no opinion);

-Any document/evidence which company considers to be related to the case

The due date to provide the above information is before 5p.m August 3^rd, 2020.

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.

What is the Requirements of Franchising in Vietnam?

  

Commercial franchising is an activity adjusted by Commercial law, whereby franchisors permit and require franchisees to undertake by themselves to purchase or sell goods or provide services on the following conditions: i) the purchase or sale of goods or provision of services shall be conducted in accordance with methods of business organization prescribed by franchisors and associated with the franchisors’ trademarks, trade names, business knows-how, business slogans, business logos and advertisements; ii) franchisors shall be entitled to supervise and assist franchisees in conducting their business activities.

Commercial franchise contracts must be made in writing or in other forms of equivalent legal validity and registered with Ministry of Industry and Trade excepting some regulated cases which are not required to register but report to Department of Industry and Trade which are domestic franchises and the franchises from Vietnam to overseas.

Firstly, the franchisors, except having otherwise agreed, have the rights i) to receive franchise sums; ii) to organize advertising for the commercial franchise system and the commercial franchise network; iii) to conduct periodical or extraordinary inspections of activities of franchisees in order to ensure the uniformity of the commercial franchise system and the stability of quality of goods and services.

In the meantime, the franchisors have the obligations i) to supply documents guiding the commercial franchise system to franchisees; ii) to provide initial training and regular technical assistance to franchisees for managing the latter’s activities in accordance with the commercial franchise system; iii) to design and arrange places of sale of goods or provision of services at the expenses of franchisees; iv) to guarantee the intellectual property rights over objects stated in franchise contracts; v) to equally treat all franchisees in the commercial franchise system.

For the franchisees, except having otherwise agreed, the franchisees could i) request franchisors to provide with full technical assistance related to the commercial franchise system; ii)  request franchisors to equally treat all franchisees in the commercial franchise system.

The franchisees have the obligations to i) pay franchise sums and other amounts under commercial franchise contracts; ii) to invest adequate material facilities, financial sources and human resources to take over business rights and know-how transferred by franchisors; iii) to submit to the control, supervision and instruction by franchisors; to comply with all requirements set forth by franchisors on designing and arrangement of places of sale of goods or provision of services; iv) to keep secret the franchised business know-how even after the expiration or termination of commercial franchise contracts; v) to stop using trademarks, trade names, business slogans, logos and other intellectual property rights (if any) or systems of franchisors upon the expiration or termination of commercial franchise contracts; vi) to manage their activities in accordance with the commercial franchise system; vii) not to sub-franchise without permissions of franchisors.

Besides the above rights and obligations, the parties may supplement others provisions demed necessary but not contrary to the provisions of law.

If Client needs more information or request for legal advice regarding commercial franchise in Vietnam, please contact with law company to be assisted.

Regulations on Online Civil Status Registration in Vietnam

 

 On July 28th, 2020, the Government issued Decree No. 87/2020/ND-CP (Decree 87) regulating the electronic civil status database, online civil status registration i.e. birth certificate registration, marriage certificate registration, death certificate registration.

The Decree is the provisions on the building, management, updating, exploitation and use of the electronic civil status database; connecting and sharing data between the electronic civil status database with the national population database, the national public service portal, the public service portal, the provincial electronic one-door information system, other databases of ministries, branches and localities; issue copies of civil status extracts, certify civil status information; online civil status registration. Although an application can be submitted online, the person applying for civil status registration must still be present at the civil status registry to sign the civil status book and receive results in case of registration of the following procedures: birth certificate registration; marriage registration; guardian registration; recognition of parents, children; change, correct civil status, redefine ethnicity, supplement civil status information; death registration.

Upon receiving results at the civil status registration office, the requester for civil status registration must submit and present papers and documents that are part of the civil status registration dossier as prescribed.

Cases in which the requester is not present at the civil status registration office to sign the civil status book and receive the results, but still have to submit and present papers and documents that are part of the household registration dossier civil status according to the law on civil status, including: confirm civil status information; record in the civil status book the birth, marriage, divorce, marriage cancellation, guardianship, recognition of father, mother, child, identification of father, mother, child, adoption, change of civil status, death registration of Vietnamese citizens who have been settled at a foreign competent authority.

To perform online civil status registration, the requester needs to access the National Public Service Portal, the Provincial Public Service Portal to register an account and authenticate users according to the instructions. Upon successful account login, the requester must provide information in the available form; attach photocopies or electronic copies of papers, documents as prescribed; pay fees and charges through the online payment function or by other means as prescribed by law. After the submission of the dossier is completed, the system will automatically send a number of administrative documents for the requester to follow up, look up the progress of the application or access to complete the application when requested by the civil status registration agency.

Decree 87 will take effect from September 15, 2020. The construction of the civil status database, the development of online civil status registration, helps people to handle administrative procedures anytime, anywhere, without having to travel many times, without having to queue and not takes time to wait, limits crowds. In addition, the use of online public services also contributes to reducing the harassment, bureaucracy and troubles of a part of cadres and civil servants, increasing the publicity and transparency of the state agencies file handling.

If customers are not familiar with the registration procedures or need legal advice,please contact our law firm lawyer for more specific advice.

How Licensing of Trademark Works?

  Licensing of industrial property subject in general or of trademark in specific is regulated in Intellectual Property law. Accordingly, in trademark licensing, the owner (licensor) grants permission to another (licensee) to use that trademark on mutually agreed terms and conditions. The must be established in written form to avoid dispute in trademark licensing.

Accordingly, licensing of trademark includes the following types: exclusive contract, non-exclusive contract; sub-license contract.

Firstly, exclusive contract means a contract under which, within the licensing scope and term, the licensee shall have the exclusive right to use the licensed trademark while the licensor may neither enter into any trademark license contract with any third party nor, without permission from the licensee, use such trademark.

Secondly, non-exclusive contract means a contract under which, within the licensing scope and term, the licensor shall still have the right to use the trademark and to enter into a non-exclusive trademark license contract with others.

Thirdly, trademark sub-license contract means a contract under which the licensor is a licensee of the right to use such trademark pursuant to another contract.

In any type of the contracts, it is required to have the following contents: full names and addresses of the licensor and of the licensee; grounds for licensing; contract type; licensing scope including limitations on use right and territorial limitations; contract term; licensing price; rights and obligations of the licensor and of the licensee.

Besides the above contents, the parties also need to take note on the validity of this contract. Different from assignment contract of trademark when it is required to register at National office of Intellectual Property of Vietnam to take effect, the licensing contract of trademark does not required this kind of registration for taking effect. Licensing contract shall automatically be terminated upon the termination of the licensor's trademark right.

If Client needs any more information or request for legal advice regarding licensing of trademark or dispute in trademark licensing contract, our Intellectual Property attorney will be of help.

Ministry of Industry and Trade initiates the Investigation of Imposing Anti-dumping Measure to some H shaped steel products (AD12)

 

 On August 24^th 2020, Minister of Ministry of Industry and Trade signed the Decision No. 2251/QD-BCT regarding the Investigation of imposing Anti-dumping measure to some H shaped steel products from Malaysia. Related parties may by themselves or authorize to experienced law firm in Vietnam on international trade to work with Trade Remedies Authority of Vietnam (TRAV) to cooperate.

Background

On November 06, 2020, Trade Remedies of authority of Vietnam (TRAV), Ministry of Industry and Trade received the dossiers on requesting the anti-dumping measure to some H shaped steel products from Malaysia. The requester is Posco Yamato Vina Steel Joint stock Company – the sole company which produced H shaped steel in Vietnam.

The requester provided the reasonable bases for calculation of dumping margin originated from Malaysia. The requester provided the reasonable information to prove the significant damage of domestic industry. The requester’s dossier proved the existence of causal relationship between imported products and the significant damage of domestic industry.

Hence, TRAV determined dossier of the requester satisfied the law of anti-dumping and petition of Minister of Ministry of Industry and Trade.

Investigation’s details

i) Products under investigation

Product’s name: H shaped steel

The H shaped steel product with the following HS code: 7216.33.11, 7216.33.19, 7216.33.90, 7228.70.10 and 7228.70.90

The products which are excluded from investigation scope includes:

The H shaped steel with the height more than 700 mm (± 4mm) or the width more than 300 mm (± 3mm);

H steel beam with the size of 100mm x 55mm or 120mm x 64mm (the description size is height x width).

The Ministry of Industry and Trade may amend and supplement the list of HS codes of the product under investigation to be in accordance with the description of the product under investigation and other changes (if any).

ii) Originated of products under investigation: Malaysia

iii) Period of investigation (POI)

-Period of investigation to determine the anti-dumping action: from April 1^st 2019 to March 31^st 2020

-Period of investigation to determine the damage of domestic industry:

The first year: from April 1^st 2017 to March 31^st 2018

The second year: from April 1^st 2018 to March 31^st 2019

The third year: from April 1st 2019 to March 31st 2020

iv) Duty Levels Proposed by Requester:

The anti-dumping duty which is requested by the requester is 10,2%.

Register as related parties:

Pursuant to Article 6 of Circular No. 37/2019/TT-BCT, organizations and individuals stipulated in Article 74 of Law on foreign trade management may register as related parties in this case with TRAV in order to access to publicly circulated information during the investigation process, send comments, information and evidence related to the investigation content within sixty (60) working days from the day on which the decision on investigation takes effect via post or email.

In order to ensure rights and interests, the investigating authority recommend that organizations and individuals which produce, import or use products under investigation register as related parties to carry out the right to access information, provide information and express opinions during the investigation process.

Investigation Questionnaire:

Within 15 days after the issuance of the investigation decision of the Minister of Industry and Trade, the Investigating Authority shall send the investigation questionnaire to the Related Parties, including:

-The applicant requests for application of Anti-dumping measures;

-Other domestic manufacturers which Investigating Authority knows;

-Parties requesting for application investigation of anti-dumping measures which Investigating Authority knows;

-Importers of products under investigation;

-Diplomatic authorities of the country where the origin of products under investigation;

-Other related

Cooperating in the investigation process

Any related party refuses to participate in the case or does not provide necessary evidences or significantly ​obstructs the completion of the investigation, the investigation conclusion regarding such relevant party shall be based on available information.

Any related party provides false or misleading evidences, such evidences shall not be reviewed and investigation conclusion regarding such relevant party shall be based on available information.

TRAV recommends that related party participate and cooperate fully in the process in order to ensure legitimate rights and interests and avoid potential disputes.

Temporary Residence Card in Vietnam

  If a foreigner have been sponsored work permit in Vietnam to work or he/she decides to set up a company in Vietnam, he/she could be granted temporary residence card to live in Vietnam instead of applying and re-newing business or travel visas every three months.

We detail here some procedures which help foreigners to prepare for before applying for temporary residence card.

I. Subjects to be granted temporary residence card:

• Members of foreign representative agencies and their accompanying relatives (father, mother, wife, husband, children under 18 years old).

• Foreigners who work with the Institute of the Supreme People's Procuracy, the Supreme People's Court, the ministries, ministerial-level agencies, agencies attached to the Government and People's Committees of provinces and cities directly under the Central Government and the Central offices of mass organizations, mass organizations.

•Foreigners who work in projects already approved by competent state agencies licensed in Vietnam.

• Foreigners who work with businesses in Vietnam has the work permit valued more than 01 year.

• Persons on the payroll of foreign representative offices and branches of economic organization, culture and other professional organizations of foreign non-governmental organizations based in Vietnam.

• Foreigners staying in Vietnam for other purposes.

II. Conditions for implementation

+ Time to stay in Vietnam more than 01 year;

+ Valid passport more than 01 year;

III. The composition, the number of records:

1) The composition profile, including:

• A written request of agencies, organizations and individuals offering, guarantee and propose for temporary residence card;

• 01 declaration of information of foreigners who apply for temporary residence, with photos and sealed by the agency or organization: A written request for temporary residence card (Form N7A); a declaration about Foreigners applying for temporary resident card (Form N7B)

• 02 3 x4 cm size photographs;

• 01 copies of passport, valid visa, immigration cards (bring original for comparison);

• 01 copies or photo (bring the original for comparison) proof of purpose to stay in Vietnam.

As the case may file appropriate documents: investment licenses, permits the establishment of enterprises, work permit in Vietnam, certificate of board members and permits the establishment of representative offices, marriage/birth registration.

2) The number of records: 01 (one).

IV. Implementing agencies administrative procedures:

Immigration management Department, Police provinces and cities directly under the Central Government.

V. Implementation time: 05 to 07 days;

VI. Subjects performed:  by organizations and individuals;

 

How Payment by Documentary Credit in International Commerce Works?

 

 Documentary Credit (also known as letter of credit or bankers commercial credit, or letter of undertaking) is one of the payment instruments that institutions providing non-cash payment services (banks, foreign bank branches, etc.) deal with to make a valid payment transaction at the request of the account holder.  Documentary credit is the most commonly used for payment of international sales of goods.

The supply of international payment services by institutions providing non-cash payment services shall be conducted in accordance with regulations of the law on foreign exchange management, treaties to which Vietnam is a member and commercial practices (including international commercial practices provided by the International Chamber of Commerce; and other commercial practices which are not contrary to the Vietnamese laws) which agreed upon by the parties.

According to UCP 600, credit means any arrangement, however named or described, that is irrevocable and thereby constitutes a definite undertaking of the issuing bank to honour a complying presentation.  Documentary credit is an independent and separate transaction from the sales and other contracts on which it may be based. The Issuing Banks and Advising Banks are in no way concerned with or bound by contract between the Applicant (purchaser) and the Beneficiary (seller), even if any reference whatsoever to it is included in the credit. Banks deal with documents only. Goods, services or performance to which the documents may relate are not under scope of handling of the Banks. When the issuing bank determines that a presentation of documents is complying, payment shall be made.

The independence between the documentary credit and the sales contract ensures that the seller definitely receives payment if complying presentation, however, does not protect the interests of the purchaser when there is any dispute about the quality of the delivered goods or any other dispute after delivery. When the seller presents complying documents, the issuing bank is obliged to make payment without any doubt whether the goods have actually been delivered according to the specifications as specified in the contract. At the same time, the cancellation or termination of contract does not affect the effectiveness of documentary credit, payment still is made if presentation is complying.

International payment instruments play an important role in commercial transactions between parties residing in different countries. Each payment method reflects the way of receiving and paying for goods amount between the buyer and the seller. The parties participating in international commerce transaction need to understand the characteristics of each payment instrument to protect their rights and obligations, and avoid disputes in international sales of goods, or disputes in financial services using letter of credit or other forms, disputes in performance of contract and should involve lawyers in early stage if possible to avoid mishap.

What are Trade Remedies in Vietnam?

  When participating in the process of international economic integration, every country voluntarily cut off the trade barriers for goods to easily circulate among each other. However, in the legal framework of World Trade Organization (WTO), the countries are allowed to impose trade remedies if satisfying certain conditions. Vietnam has officially become a member of WTO since July 11 2007 and the imposing of these trade remedies are regulated in Law on foreign trade management 2018.

According to Law on foreign trade management 2018, trade remedies includes anti-dumping measure, countervailing measure and safeguard measure. Specifically, (i) Anti-dumping measure imposed on imports into Vietnam is a measure imposed on products that are dumped when being imported to Vietnam, which causes material injury or threaten to cause material injury to domestic industry or retard the establishment of the domestic industry; (ii) Countervailing measure imposed on imports into Vietnam is a measure imposed on products that are subsidized when being imported to Vietnam, which causes the material injury or threat of material injury to the domestic industry or retards the establishment of the domestic industry; (iii) Safeguard measure imposed on foreign products imported into Vietnam is measure imposed on increased imports of particular products to Vietnam, which causes the serious injury or threat of serious injury to the domestic industry.

The domestic industry mentioned above refers to the producers as a whole of the like products within the territory of Vietnam or those whose collective output of the like products constitutes a major proportion of domestic production of those products. Besides, the injury to domestic industry shall be determined on each level: (i) Material injury to domestic industry; (ii) threat of material injury to domestic industry; (iii) material retardation of establishment of a domestic industry; (iv)serious injury to domestic industry; (v) threat of serious injury to domestic industry.

Due to the imposing of these remedies directly affecting to foreign producer/exporter as well as domestic industry, thus, it is required to comply to six following rules when imposing these remedies:

Firstly, impose measures within the reasonable scope and level for a certain period of time to protect domestic industry, prevent or limit the injury to it;

Secondly, only impose measures after the investigation is carried out transparently and fairly in accordance with regulations of law and based on determinations of the investigation;

Thirdly, decisions on the investigation and the imposition of trade remedies shall be published;

Fourthly, if the duty rate of an official trade remedy is higher than those of a provisional trade remedy, the difference of duty will not be collected;

Fifthly, if the duty rate of an official trade remedy is lower than those of the provisional trade remedy, the difference of duty will be returned;

Sixthly, if the Minister of Industry and Trade does not impose an official trade remedy, the duty of provisional trade remedy that has been collected or the amount for ensuring the payment of temporary trade remedy duties shall be returned.

If Client needs any more information or request for legal advice regarding trade remedies measures including: anti-dumping, countervailing duty and safeguard measures or international trade dispute matters, Our international trade and tax lawyers, and antitrust lawyers at ANT Lawyers, a law firm in Vietnam have always followed the development of situation and update the clients on relevant matters.

What Need to Know About Dispute between Foreign Investor and Host State?

 

 In the globalization and international integration in general as well as economic integration in particular, foreign investment including foreign direct investment (FDI) and indirect foreign investment in countries are increasing significant.  This trend also comes along with the growth of international investment dispute between foreign investor and host state (or related state agencies). This dispute is often complex with huge amount of compensation demanded by the investor.

Subjects of this dispute include foreign investor (plaintiff) and host state or related state agencies (defendant). In particular, Vietnam laws stipulate that foreign investor means an individual holding a foreign nationality or an organization established under foreign laws an making business investment in Vietnam. The second subject is state, a “special” subject because this subject is the beneficiary of “jurisdictional immunity”. Specifically, jurisdictional immunity is a right of a state which do not be judged by any international or national jurisdiction without the consent of such state.

This dispute shall relate to the investment of foreign investor in host state according to regulation of (i) investment law of host state; (ii) treaty of promotion and protection of investment (bilateral investment treaty - BIT) or investment chapter in bilateral/regional trade agreements; or (iii) contract relating to investment of foreign investor and competent state agencies.

To promote foreign investment and to protect investors, countries around the world as well as Vietnam have signed and will sign bilateral agreements on promotion and protection of investment (BIT), agreement between countries on promotion and protection of investment (international investment agreement – IIA), free trade agreement (FTA) having investment chapter. Accordingly, investor holding the nationality of a signatory to investment agreement (chapter) is entitled to have full protection and security, fair and equitable treatment, non-discrimination, no expropriation... of investment according to regulation of such investment agreement (chapter) in host state. Besides, to ensure that dispute between foreign investor and host state will be fairly and properly settled and to prevent the case of refering to jurisdictional immunity to avoid being sued, there are provisions on dispute settlement mechanisms between foreign investor and host state in most of these agreements.

Through investment agreement (chapter), the host state abandons its right of jurisdictional immunity to be sued and judged at competent jurisdiction. If the host state violates and harms the foreign investor, such country shall compensate according to judgement of that jurisdiction. Jurisdictions being competent to resolve disputes between foreign investor and host state may be arbitration, court of the host state; international arbitration; or other jurisdictions by agreement between the parties.

Behaviours which state violates commitment on investment protection may be very broad, including: (i) expropriation such as: requisition or nationalization without compensation; “indirect” requisition or “according to regulation” without reasonable compensation; (ii) no fair and equitable treatment; (iii) no full protection and security; (iv) there is discrimination such as violation of most favoured nation and national treatment; (v) and/or other violations such as: legal obligation/commitment, right of withdrawing investment and interest, compensation due to war or riot.

Dispute resolution process between foreign investor and host state usually takes place with three stages, including (i) conflict management stage means carrying out resolving complaints and consultation, mediation; (ii) dispute resolution stage; and (iii) implementation stage. In above process, consulting with international dispute lawyers to for resolution of international investment disputes is a very important and necessary.

How Foreigners Could Buy Real Estate in Vietnam?

  Regulations on foreigners owning real estate in Vietnam are regulated in Civil Code 2015, Law on Land 2013, Law on Housing 2014, Decree no. 99/2015/ND- CP on guidelines the Law on Housing and related documents.

For land, foreign individuals are not eligible to use land assigned or leased by the State, recognized land use rights, received transfer of land use rights. However, a foreign-invested enterprise could be allocated or leased land by the State, recognized land use rights, or received a land use right transfer. Foreign-invested enterprises that are assigned land by the State with the collection of land use levies to execute investment projects on the construction of houses for sale or for sale in combination with lease.

For housing, foreign entities eligible for the homeownership in Vietnam include: foreign entities who invest in project-based housing construction in Vietnam as prescribed in this Law and corresponding regulations of law; foreign-invested enterprises, branches, representative offices of foreign enterprises, foreign-invested funds and branches of foreign banks operating in Vietnam (hereinafter referred to as foreign organization); foreign individuals who are allowed to enter Vietnam.

The foreign entities are eligible for the homeownership in Vietnam if they invest in project-based housing construction in Vietnam as prescribed in this Law and corresponding regulations of law; or buy, rent and purchase, receive, or inherit commercial housing including apartments and separate houses in the project for housing construction, except for areas under management relating to national defense and security as prescribed in regulations of the Government.

Foreign organizations and individuals must have documents proving being the eligible subjects and meeting conditions to own houses in Vietnam. A foreign individual must have an unexpired passport bearing the entry seal of the Vietnam’s immigration authority and not given diplomatic immunity and privileges according to Ordinance on diplomatic immunity and privileges of diplomatic missions, consular offices, and representative authorities of international organizations in Vietnam. Foreign organizations must be subjects of owning houses in Vietnam which have investment registration certificate or a permission issued by a Vietnam’s competent authority for operation in Vietnam which is still unexpired at the time of housing transaction (hereinafter referred to as investment registration certificate).

A foreign entity shall not be granted a Certificate of the house and may only sell or offer it to another entity eligible to own housing in Vietnam in the case being: a foreign organization or individual receives a house as an inheritance or a gift which is located in an area in which foreign entities must not own houses, or the quantity of which exceeds the permissible limits; a foreign organization that does not operate in Vietnam, or a foreign individual who is not permitted to enter Vietnam, receives a house in Vietnam as a gift or an inheritance.

For specific situations, to avoid future dispute in house ownership arisen from the purchase, lease of property, house, land from the state, developer or other seller, or lessor it is important that the client check with property lawyers for eligibility, conditions and other relevant matters.

If you are interested in buying and selling real estate in Vietnam, please contact a law firm in Vietnam for the fastest advice.

Vietnam to Investigate Anti-Dumping Case of Sorbitol Chemical Products from China, India and Indonesia

  On August 18^th, 2020, Trade Remedies Authority of Vietnam (TRAV) acknowledged the Dossier on request of investigation to impose the anti-dumping measures to Sorbitol chemical products originated from China, India and Indonesia from the companies representing the domestic industry (Requester).  If there is anti-dumping actions, the anti-dumping investigation will be initiated and related parties would cooperate with TRAV to provide data as required.

On the basis of assessing the Dossier, on September 30^th, 2020, TRAV had confirmed the sufficiency of the dossiers according the the laws on trade remedy.

Within 45 days from the date of receiving sufficient and lawful dossier, TRAV will assess dossier to submit Minister of Ministry of Industry and Trade for consideration whether to process the investigation.

The assessment’s contents includes:

-Identify the legal representative status of the domestic industry of organizations and individuals who submit dossier in accordance with the Law on Foreign Trade Management;

-Define evidence on the dumping of imported goods that cause or threaten to cause significant losses to a domestic manufacturing industry or substantially prevent the formation of a domestic manufacturing industry.

In order to serve the assessment process, as well as to ensure the legitimate rights and interests of the enterprise, TRAV recommends that the domestic enterprises manufacturing trading in the same goods mentioned above provide the following information.

• Enterprise’s information;
• Capacity/design and production of Sorbitol chemical products in 2017, 2018, 2019 and 2020;
• Enterprise’s opinion on the case (to agree, oppose, have no opinion);
• Any document/evidence which companies consider to be related to the case

The due date to provide the above information is before 5p.m October 16^th, 2020.

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 trade remedy development to update clients on regular basis.

How to Obtain Construction Practicing Licenses in Vietnam?

  The Construction Practicing License (practicing license) shall be issued to any Vietnamese citizens, overseas Vietnamese or foreigners who legally carry out construction activities in Vietnam in order to hold certain positions or operate their own construction business as prescribed in the amended Law on Construction 2020.

Holders of titles and individuals practicing construction activities who are required to possess practicing licenses as prescribed in Law on Construction include construction investment project managers, construction planning design managers, construction survey managers, construction design or design verification managers, construction supervision consultants, and managers in charge of formulating, verifying and managing construction investment costs. Any foreigner who obtained a practicing certificate issued by a foreign authority or organization and has practiced construction in Vietnam for less than 06 months shall be permitted to practise construction activities. If he or she has practised construction in Vietnam for at least 06 months, he or she is required to change the construction practicing license.

A foreigner shall be issued with the practicing license if he or she: has full legal capacity as prescribed by law and obtains a residence permit or work permit in Vietnam; has qualifications and experience relevant to requirements of the practicing certificate; passes the test in the field that is covered by the practice license applied for.

Practicing licenses shall be classified into Rank-I, Rank-II and Rank-III. In particular, a Rank-I practicing license is granted to the individual who gains a bachelor's degree in appropriate major and at least 07 years’ experience relevant to requirements of that practicing license; a Rank-II practicing license is granted to the individual who gains a bachelor's degree in appropriate major and at least 04 years’ experience relevant to requirements of that practicing license; a Rank-III practicing license is granted to the individual who has appropriate qualifications and at least 02 years’ experience relevant to requirements of that practicing license with respect to the holder of the undergraduate degree and at least 03 years’ experience with respect to the holder of the associate degree or intermediate diploma.

The competence authority in Vietnam to grant practice licenses: the construction-specialized agencies directly under the Ministry of Construction shall grant Rank-I practicing licenses; The Department of Construction issues Rank-II, Rank-III practicing license and recognized socio-professional organizations grant Rank-II, Rank-III practicing license to individuals who are their members and members.

An application for issuance of the construction practicing license for the first time includes: An application form enclosed with the applicant’s 02 color 4 x 6 cm and white background pictures which are taken within the last 06 months; Qualification(s) granted by a legal training institution in accordance with the type or rank of the certificate applied for; Decisions on task assignment (responsibility assignment) issued by an organization to an individual or written confirmation of completed typical tasks provided by the legal representative of the investor, in case the individual runs his/her own construction business, a contract and record on commissioning of listed typical tasks are required; Legal residence-related documents or work permit issued by a Vietnam competent authority, applicable to foreigners. The above documents must be notarized, legalized, authenticated then translated with certified true copies into Vietnamese or included in a file that contains color photos of originals or copies presented together with the originals for comparison. Besides, satisfactory test result in case the test is done before the date of submission of the application for the practicing license.

For application of the practicing license, the applicant shall submit an application form for issuance of the practicing license, electronically or by post or in person, to the issuing authority. From the date on which the satisfactory application is received, the issuing authority shall issue the construction practicing license within 20 days in the case of issuance of the license for the first time. In the case the application is unsatisfactory, the issuing authority shall notify the applicant in writing once within 05 days from the date on which the application is received.

The practicing license of a foreign individual, its effective period shall be determined according to the period specified in the work permit or temporary resident card issued by a competent authority but not exceed 05 years.

The above are provisions on the process of granting construction practicing licenses for foreign individuals working in Vietnam under the amended Law on Construction 2020. The amended Law on Construction 2020 takes effect from January 1, 2021.

ANT Lawyers, a law firms in Vietnam with offices in Hanoi, Da Nang, Ho Chi Minh city could assist clients with application process.

What Are Tax Obligations of a Representative Office in Vietnam?

  Vietnam-based representative office of a foreign trader means a dependent unit of the foreign trader, which is established under the provisions of Vietnamese law to conduct market survey and a number of commercial promotion activities permitted by Vietnamese law.

Representative office of foreign trader in Vietnam has the rights and obligations in accordance with the law of Vietnam. Foreign trader is responsible before the law of Vietnam for all operations of its representative office in Vietnam.

Accordingly, representative office in Vietnam is not allowed to conduct business activities, nor carry out other activities for profit-generating purposes. The representative office in Vietnam only performs the activities for the right purposes, scope and duration specified in the certificate to establish the representative office. Besides, the representative office in Vietnam has the right to rent the head office, rent and buy the facilities and materials necessary for the operation of the representative office; to recruit Vietnamese and foreign employees to work at the representative office in accordance with the provisions of Vietnamese law; to use an account in foreign currency, in Vietnam dong of foreign currency origin opened by a foreign trader at a bank licensed to operate in Vietnam and only use this account for the operation of the representative office; to have a seal bearing the name of the representative office according to the provisions of Vietnamese law. Representative office in Vietnam can sign contracts, perform transactions with partners when authorized by the enterprise.

Hence, due to the limited scope of activities, the tax liability of a foreign representative office in Vietnam is narrower than that of an enterprise.  As the representative office does not produce or trade in goods and services, it is not required to pay license fees as prescribed. Representative office of foreign trader in Vietnam is dependent unit of foreign trader, established to investigate the market and carry out some trade promotion activities permitted by Vietnamese law, does not carry out production and business activities, so it is not required to pay license fees.

The fact that the representative office has the right to recruit Vietnamese or foreign employees to work at the office is the basis for arising personal income tax obligation. At the same time, representative office of foreign organization is subject to personal income tax registration. For employees working at foreign representative office in Vietnam, the taxable incomes are based on salaries and wages. Declaring, withholding, paying taxes and settling personal income tax of employees working at foreign representative office is the responsibility of such representative office.

ANT Lawyers, a law firm in Vietnam with offices in Hanoi, Da Nang and Ho Chi Minh City could help client to set up representative office in Vietnam and advise on the compliance on regular basis.

What Are Fundamental Contract Breaches in Law on Commerce 2005 and CISG 1980?

 Fundamental breach is a type of contract breach, in which the Law on Commerce 2005 defines that a breach of contract committed by one of the parties is fundamental if it causes damage to the other party to the extent that the other party fails to achieve purpose of contract conclusion. The significant factor that makes the difference between the fundamental and minor breach of contract is the materiality.

Fundamental breach is an important foundation for the imposition of trade remedies such as temporary suspension of performance, suspension of performance or contract cancellation when the contract has no specific agreement. Nonetheless, Law on Commerce 2005 does not provide further guidance on fundamental breach. Court or arbitrator has a right to determine whether a breach is fundamental on a case-by-case basis.

As set forth in CISG 1980, a breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result. CISG also does not provide specific provisions to explain fundamental breach in details. Nonetheless, it can be deemed that in order to constitute a fundamental breach, three following factors need to be met: (i) a breach is made, (ii) detriment resulted from such breach substantially deprives him of what he is entitled to expect under the contract, and (iii) the breach can be foreseen.

The difference between constitution of a fundamental breach under CIGS 19080 and Law on Commerce 2005 is that: a breach cannot be treated as under CISG 1980 in case the breaching party did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result. Law on Commerce 2005 does not stipulate factor (iii) as mentioned herein but requires that (1) a breach is made and (2) damage resulted from such breach causes other party failed to achieve its purpose of contract conclusion to constitute a fundamental breach. The aggrieved party accordingly has a right to impose remedies such as temporary suspension of performance, suspension of performance or contract cancellation.

The consequence factor of fundamental breach in Law on Commerce 2005 is similar to CIGS 1980. In case the purchaser is aggrieved party, what he/she is entitled to expect under the contract is right to receive the goods, to own the goods and to sell to other parties to earn profits or manufacture products or other ways he/she can make a profit. In case the seller is aggrieved party, what he/she is entitled to expect under the contract is right to receive payments, which is profits he/she may earn. The purpose of contract conclusion as provided in Law on Commerce 2005 is same as what the purchaser and seller are entitled to expect under the contract as stipulated in CISG 1980. If you have problems with breach of contract, please contact a law firm for assistance.

What Are Conditions to Clean Up Criminal Records?

 

 Offenders who have completely served their penalties shall be given conditions to do business, live honestly and integrate with the community, and when they meet all the conditions prescribed by law, their conviction may be expunged and their criminal records will be cleaned. A person whose criminal record is removed is considered as having not been convicted. There are three cases of conviction expungement, including: Automatic conviction expungement; Conviction expungement under a Court's decision; Special cases of conviction expungement.

Automatic conviction expungement applies to people convicted not for crimes of infringing upon national security and crimes of undermining peace, against humanity and war crimes when they have completed their main penalty, the probationary period of the suspended sentence, the person has served the additional penalty, other decisions of the judgment or has expired and does not commit any new crime during the periods specified below: (i) 01 year in case of a warning, fine, community sentence or suspended imprisonment; (ii) 02 years in case of imprisonment of up to 05 years; (iii) 03 years in case of imprisonment from over 05 years to 15 years; (iv) 05 years in case of imprisonment of over 15 years or commuted life imprisonment. A convict serving an additional punishment that is mandatory supervision, prohibition from residence, prohibition from holding certain positions, prohibition from doing certain jobs, deprivation of certain citizenship rights for a period longer than those specified in  points (i), (ii), (iii) above, automatic conviction expungement shall be granted when he/she finishes serving the additional punishment.

Conviction expungement under a Court's decision is applicable to persons convicted of crimes of infringing upon national security and crimes of undermining peace, against humanity and war crimes. The Court shall decide the conviction expungement of convict based on the nature of the crimes committed, the law-observing attitude, the convicted person's labor attitude and the following conditions:

The Court shall grant conviction expungement if the convict, after serving the primary sentence or probation period as well as additional sentences and other decisions of the judgment, does not commit any new crime over the following periods: (i) 01 year in case of warning, community sentence, or suspended imprisonment; (ii) 03 years in case of imprisonment of up to 05 years; (iii) 05 years in case of imprisonment of between more than 5 years and 15 years; (iv) 07 years in case of imprisonment of more than 15 years, life imprisonment or death sentence that is commuted.

If the convict is serving an additional sentence which is mandatory supervision, prohibition from residence, or deprivation of certain citizenship rights for a longer period than that specified in points (i), (ii) above, conviction expungement shall be considered when he/she finishes serving the additional sentence.

If an application for conviction expungement is rejected for the first time, it may only be resubmitted after 01 year from the day on which it is rejected; if the application for conviction expungement is rejected for the second time, it may only be resubmitted after 02 years from the day on which it is rejected.

Where a convict shows remarkable improvements and has made reparation in an effort to atone for the crime and conviction expungement is requested by his/her employer or local authority, the court shall decide to grant conviction expungement if has served at least one third of the above period.

In order to be automatically expunge conviction or expunged conviction according to the decision of the Court, the convict must fully comply with the decisions in the judgment including the payment of court costs and not commit any new crime within the prescribed time limit. For special cases of conviction expungement, convict must have at least one-third of the time limit for conviction expungement according to regulations and the Court shall decide to expunge conviction at the request of agencies or organizations where the person works or the local government where the person resides.

The period after which a conviction may be expunged depends on the primary sentence. If the convict who has not had the conviction expunged commits a new crime which leads to a conviction under an effective judgment, the period after which the conviction may be expunged shall start over from the day on which the primary sentence has been served or the end of the probation period of the new judgment or from the deadline for execution of the new judgment. If the convict has committed more than one crime and one of which is automatically eligible for expungement, one of which is eligible for expungement under a court's decision, the Court shall decide expungement pursuant to the prescribed time limit for conviction expungement under the Court's decision.

A convicted corporate legal entity shall automatically have its conviction expunged if it does not commit any new criminal offence for 02 years from the day on which the primary punishments, additional punishments, other decisions of the judgment are served or from the expiration of the time limit for execution of the judgment.

Criminal record card can be obtained at authority to reveal the current criminal conviction situation or changes of situation of such conviction.

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.

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.

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.

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.

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.