Can Employer Terminate the Labour Contract in Vietnam with Employee Due To Covid 19 Outbreak?

Due to intricate occurrence of Covid 19, many enterprises are forced themselves to reduce the number of employees for maintaining the operation financially. Specifically, the employer has to make difficult decision to terminate the labour contract with the employee. The termination of the labour contract has to be considered carefully because of potential legal risks brought up which dispute lawyers in labour should be consulted before execution. Within this post, we are not trying to resolve all cases but only aiming to brief some matters of concern for preparation.

 

Employment Dispute Lawyers in Vietnam

The employer could refer to the regulation in the Labor Code which allows “an employer may unilaterally terminate a labor contract if as a result of natural disaster, fire or another force majeure event as prescribed by law, the employer, though having applied every remedial measure, has to scale down production and cut jobs. Force majeure in this case is understood as (i) Enemy-inflicates destruction, epidemics (ii) Relocation or narrowing of the production and business sites, at the request of competent State agencies.

In particular, after applying corrective measures, over the time, considering enterprise’s financial potential is insufficient as well as the business production is reduced significantly due to epidemic, the employer may consider unilaterally terminate labor contract with employee. However, employer still have to abide by or ensure the rights to employee regarding the interests which employee is entitle to receive when being unilaterally terminated labor contract includes salary, severance allowance, social insurance, payment for untaken leave days, the tax payment which employer must paid for employee. Besides, employer also is subject to pay a compensation if consented by both sides are employer and employee.

Firstly, employer is obliged to pay salary to employee timely and fully as in the agreed labor contract by both parties;

Secondly, employer is responsible for paying the severance allowance to employee whom has worked regularly for full 12 months or longer at the rate of half of a month’s wage for each working year.

Thirdly, social insurance, employer is responsible for the fulfill payment of social insurance and perform the closing insurance book for employee after terminate the labour contract according to the law of social insurance.

Fourthly, if the income of employee subject to personal income tax, employer must extract from the income of employee to submit the tax to tax agency according to law on personal income tax.

ANT Lawyers – A labour dispute law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

 

 

 

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Handling Violations of Competition Laws in Vietnam

Foreign brands are increasingly popular in the Vietnam market as Vietnam economy integrates into world economy. The openings of economy creates opportunities to attract foreign investment into Vietnam through establishment of companies. To continue to protect the fair competition, and interest of consumer, it is important that the Vietnam state authority ensures the business environment. Accordingly, violations related to competition will be handled in accordance with the law.

 

Dispute lawyers in Vietnam

Acts of violation of competition under Vietnam laws are defined in Article 1 of Decree 71/2014 / ND-CP, including: violations of regulations on control of acts of restraint of competition; acts of violating regulations on acts of unfair competition; violations of other provisions of law on competition. According to the provisions of law, the above acts shall be subject to the forms of punishment and fine. The most common and most powerful impact on businesses and consumers are the violation of unfair competition.

In practice, there are a number of instances where unfair competition acts are associated with intellectual property rights violations, which have a significant impact on business activities of enterprises in the same field; violation of business secrets; activities of advertising that are prohibited i.e. make direct comparison against competitor, provide falsified or confused information to consumers…

If committed acts of unfair competition, the violator will be subject to fine level from VND 10,000,000 to VND 140,000,000. At the same time, additional measures and remedies will be applied, depending on the seriousness of the breach, such as the revocation of the enterprise registration certificate; deprivation of the right to use licenses or practice certificates; confiscation of material evidences and means used to commit the violation, including the confiscation of profits earned from the commission of the violation; to restructure the enterprise, rectify to the public…

From the management of state authority, the detection and handling of unfair competition acts create conditions for enterprises to have equal opportunities in the market economy. From the enterprise’s perspective, it is important to continuously review its business activities in Vietnam to ensure compliance to competition law by its lawyers.

ANT Lawyers – a  law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

 

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Anti-dumping Measures for H-shaped Steel Products From Malaysia Remain in Place

On August 18th, 2021, the Ministry of Industry and Trade issued the Decision No. 1975/QD-BCT on the application of official anti-dumping tax on some H-shaped steel products originating from Malaysia (“Decision No. 1975/QD-BCT”). Accordingly, the anti-dumping measures against a number of H-shaped steel products originating from Malaysia continue to be maintained under Decision No. 1162/QD-BCT dated April 02nd, 2021 of the Minister of Industry and Trade.

 

Anti-dumping Law Firm in Vietnam

The Ministry of Industry and Trade started investigating the case on August 24^th, 2020, the investigation process was carried out in accordance with the laws. On the basis of information collected from related parties, the Ministry of Industry and Trade has carefully considered and assessed the level of dumping of H-shaped steel products imported from Malaysia, the damages to the domestic industry as well as to assess the socio-economic impacts, including impacts on downstream industries and consumers.

According to Decision No. 1975/QD-BCT, the anti-dumping tax rate for some H-shaped steel products originating from Malaysia, holding HS codes: 7216.33.11, 7216.33.19, 7216.33.90, 7228.70.10 and 7228.70.90 is 10.64%. This tax rate is lower than the tax rate applied to H-shaped steel imported from China (about 22% on average) and also much lower than the proposed tax rate of the domestic manufacturing industry (16.30%). This anti-dumping tax is effective from August 21^st, 2021 and has an application term of 05 years, the term above could be changed or extended in accordance with the laws.

In order to have a basis for determining the origin of imported goods subject to anti-dumping tax, the Customs authority will check the proofs of origin of goods, including:

(i) Certificate of Origin (C/O); or

(ii) Documents certifying the origin of goods in accordance with the provisions of:

-ASEAN Trade in Goods Agreement;

-Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP);

-Free Trade Agreement between the Socialist Republic of Vietnam and the European Union (EVFTA);

-Free Trade Agreement between the Socialist Republic of Vietnam and the United Kingdom of Great Britain and Northern Ireland.

The above information is the regulation on application of official anti-dumping tax on some H-shaped steel products originating from Malaysia, organizations and individuals producing and exporting the above goods from Malaysia and relevant organizations and individuals need to know and implement according to the laws.

ANT Lawyers, a law firm in Vietnam always follow the legal developments to update client.  Our international trade dispute lawyers in Vietnam  and consultants represent client in international trade disputes including anti-dumping cases at Vietnam authorities.

 

 

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Vietnam Promulgated Preferential Import-Export Tariff Schedule to Implement UKVFTA Agreement

On May 21, 2021, the Government of Vietnam issued Decree No. 53/2021/ND-CP on preferential export tariffs and special preferential import tariffs of Vietnam to implement the Free Trade Agreement between the Vietnam and the United Kingdom of Great Britain and Northern Ireland for the period 2021-2022 (“Decree No. 53/2021/ND-CP”).

 

Decree No.53/2021/ND-CP promulgating the Preferential Export Tariff and the Special Preferential Import Tariff of Vietnam to implement the Free Trade Agreement between the Socialist Republic of Vietnam and the Union United Kingdom and Northern Ireland (UKVFTA) period 2021 – 2022 and conditions to enjoy preferential export tax rates, special preferential import taxes under the UKVFTA. The specific tax rates for each year of each item are specified in the appendices of that Decree.

Accordingly, in order to enjoy the preferential export tax rate under the UKVFTA, goods exported from Vietnam that are eligible for the preferential export tax rate specified in Decree No.53/2021/ND-CP must meet the following conditions: (i) Being imported into the United Kingdom; (ii) Having a transport document (copy) showing that the destination is the United Kingdom; (iii) Having the import customs declaration of the export consignment of Vietnamese origin imported into the United Kingdom (copy and translation in English or Vietnamese in case the language is showed on the declaration is not in English).

In addition, imported goods eligible for special preferential import tax rates under the UKVFTA must fully satisfy the following conditions: (i) Belonging to the special preferential import tariff schedule specified in the Appendix II promulgated together with Decree No.53/2021/ND-CP; (ii) Being imported into Vietnam from: The United Kingdom or Vietnam (Goods imported from the free trade zone into the domestic market); (iii) Meeting the regulations on origin of goods and have proof of origin according to the provisions of the UKVFTA.

Information above are the provisions on the import and export tariff of goods under the UKVFTA, goods import and export enterprises need to pay attention to be able to apply the import preferential tariff, in order to bring new business highest benefit for the business.

ANT Lawyers in an international trade dispute law firm in Vietnam, recognized by Legal500, IFLR1000. We are an exclusive Vietnam member of Prea Legal, the global law firm network covering more than 150 jurisdictions. The firm provides a range of legal services to multinational and domestic clients. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

 

 

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Opposition of Applications for Registration of the Mark Protection in Vietnam

Vietnam Law on Intellectual Property allows any third party to have right to denounces the opposition of trademark applications for registration which have identical or confusingly similar signs.

As from the date an application for registration of mark is published in the Official Gazette of Industrial Property up until prior to the date of issuance of a decision on grant of a protection title, the third party shall express the opposition to the competent State administrative body including explanations, argument and evidence the opinion. Such opinions must be made in writing and be accompanied by documents or must quote the source of information.

 

Trademark opposition in Vietnam

Opposition to trademark applications plays a great role for the protection of trademark owner that prevents counterfeiting, duplication, infringement and trademark registration in contravention of law.

Documents:

01 Power of attorney (as form)

Documents and evidences to prove the opposition bases.

(ANT Lawyers could consult client specifically and particularly about the evidences and documents).

Opposition procedures

After receiving a disapproval application for registration of mark, National Office Intellectual Property (NOIP) has a dispatch to answer the disapproval application within 10 working days from date received a dossier. NOIP also sends disapproval opinions to owners of application for registration of mark protection.

Owners of application for registration of mark protection has opinions about this disagreement and give proofs that the application for registration of mark protection is suitable with requirement of Intellectual Property law

NOIP is pursuant to argument, proof and regulation law of parties for agree or refuse to grant a protection title

Opposition dossier includes:

Disapproval declaration (02 copies following form)

Explanation documents for disagreement of protection title issue

Attachment proofs.

Power of attorney (if an application is filed through representative of owner’s mark)

Fee, charge vouchers relating disagreement following regulations in law.

Duration

There is no duration stipulation in Vietnamese law. As our usual, NOIP will take from 6 months to 9 months to examine.

If you are looking for an experienced IP services in Vietnam to help you with your Trademark application, you should visit ANT Lawyers.vn. Our attorneys have experience with the IP process and will work closely with you as you apply for your Trademark in Vietnam. 

 

 

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What to Note When Signing Labour Contract with Foreign Workers?

With the policy of opening the economy in Vietnam, not only Vietnam attracts investors to set up company, but also the demand for foreign workers in enterprises grows and diversifies. However, in order for Vietnam companies to be able to use foreign workers, they must sign a labor contract.

After meeting the conditions specified in the Labor Code on meeting the requirements for recruitment and working in Vietnam, the foreign worker working in Vietnam shall sign a labor contract before the expected date intend to work for the employer. In this contract, the employer and the foreign worker will agree on all issues arising in the process of working as well as using labor together.

Firstly, on the working position in the labor contract, it must show the correct position and position for which the employer has determined the needs with the competent authority and in accordance with the working position shown in the document and the work permits which have been granted to foreign workers.

Regarding the working time, it will normally be agreed upon by the two parties but must not exceed the number of working days (hours) as prescribed by Vietnamese law. The number of overtime hours must be based on voluntary work and must ensure rest time, rest during working time and weekends for foreign workers.

According to the provisions of the Labor Code, in addition to Vietnamese public holidays and New Year’s holidays, foreign workers are allowed to take one more day off for the national traditional New Year and one national day of the country. This is a humane regulation, respecting the national culture of Vietnam. Therefore, the employer needs to learn about the National Day and the traditional Tet holiday of foreign workers so that the employees can take leave in accordance with the provisions of the law.

Regarding the term of the labor contract, the term of the labor contract for foreigners is also governed by the duration of the work permit issued by the competent Vietnamese authority. Accordingly, the term of the labor contract for foreign workers working in Vietnam must not exceed the term of the work permit. Therefore, the employer should pay attention to conclude the contract term in accordance with regulations.

In addition, employers and foreign workers should be aware of the terms of disputes which could potentially arise. Because, contract terms are an important legal basis to resolve when a labor dispute arises, agreeing in advance on how to resolve a dispute when a dispute arises will create a clear legal foundation for easy settlement by both parties. Labour dispute lawyers in Vietnam are suggested to be consulted at an early stage to avoid dispute escalation.

At most, it is important that the employers and foreign workers need to pay attention and strictly comply with the provisions of the law so that the process of entering into and performing the contract is conducted smoothly and in compliance with the law in Vietnam.

ANT Lawyers in a law firm in Vietnam, recognized by Legal500, IFLR1000. We are an exclusive Vietnam member of Prea Legal, the global law firm network covering more than 150 jurisdictions. The firm provides a range of legal services to multinational and domestic clients. For advice or services request, please contact us via email ant@antlawyers.vn.

 

 

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How to Prepare and Request for Imposition of Anti-dumping Measures in Vietnam?

Organizations or individuals representing a domestic industry (Requesting Party) have the right to submit an application of request for imposition of anti-dumping measures if seeing that goods are dumped thus causing injury to that domestic industry.

 

Anti-dumping Law Firm in Vietnam

The requesting party could themselves prepare or seek legal help from local international trade lawyers for representing and submitting an application of request for imposition of anti-dumping measures in Vietnam.

Following are

Stage 1: Preparation for the application

Application of request for imposition of anti-dumping measures (hereinafter referred to as “Application of request”) includes a written request for imposition of anti-dumping measures (hereinafter referred to as “Written request”) and related documents.

Stage 2: Submitting the application

The Requesting Party must submit one (01) copy of the Application of request to Dumping and Subsidy Investigation Division (hereinafter referred to as “Investigating Authority”) under Trade Remedies Authority of Vietnam, Ministry of Industry and Trade, which is located on 23 Ngo Quyen Street, Hoan Kiem District, Hanoi. The authority works during office hours from Monday to Friday.

In case of the Requesting Party asks to keep some information in the Application request confidential, Requesting Party must submit two (02) copies of the Application of request which comprise one (01) copy containing public information and one (01) copy containing confidential information. Regarding the confidential information, the Requesting Party must attach a detailed explanation of the request for confidentiality of the information and a summary of the contents of the confidential information that may be disclosed to other relevant parties.

The Investigating Authority shall verify the adequacy and validity of the Application of request and notify the result to the Requesting Party within 15 days from the receipt of the application.

Stage 3: Supplementing the application

In case of the Application of request is not adequate or valid, the Investigating Authority shall request supplementation from the Requesting Party. The time limit for supplementation of the application is decided by the investigating authority but not lower than 30 days from the notification of supplementation.

In case of the Application of request is adequate and valid, the Investigating Authority shall inform the related parties including the Requesting Party about receiving the application and start to verify the content of the Application of request. After this stage, the procedure for submitting an application of request for imposition of anti-dumping measures shall be completed.

In general, the information in the Application request should be adequate and valid. However, to pass the content verification and become a basis for issuing a decision to launch the investigation, the Requesting Party must satisfy the two (02) following conditions:

In terms of the condition of legal status, the Requesting Party must be eligible for the legal representative status of the domestic industry as prescribed in Art. 79(2) and Art. 87(2) of the Law on Foreign Trade Management (Art. 31(2)(a) Decree 10/2018/ND-CP). The Requesting Party shall be regarded as representing a domestic industry when all the following requirements are fully met:

i) The total volume or quantity of similar goods manufactured by the domestic manufacturers that submit the dossier and domestic manufacturers that support the request for application of anti-dumping measures is larger than the total volume or quantity of similar goods manufactured by the domestic manufacturers that oppose such request;

ii) The total volume or quantity of similar goods manufactured by the domestic manufacturers that submit the dossier and domestic manufacturers that support the request for application of anti-dumping measures accounts for at least 25% of the total volume or quantity of similar goods manufactured by the domestic industry concerned.

In terms of the condition of evidence, the Requesting Party should prepare sufficient documents on the dumping on goods imported to Vietnam to prove that the dumping of such goods significant damage, threat to cause significant damage to domestic industry or significant obstruction to the establishment of the domestic industry. The contents that need to be carefully and fully prepared are:

i) Information on the normal price and export price of the described goods in the Written request; dumping margin of the imports subject to investigation of anti-dumping measures;

ii) Information, data and evidences on significant damage, threat to cause significant damage to domestic industry or significant obstruction to the establishment of a domestic industry;

iii) Information, data and evidences on the causal relationship between the import of goods requested to investigate and the damage to domestic industry significant damage, threat to cause significant damage to domestic industry or significant obstruction to the establishment of a domestic industry.

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 in Vietnam 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.

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What Bona Fide Possession of Property Are and How the Rights Are protected?

Possession in good faith means the possession that the possessor has bases to believe that he/she has the right to the property in Vietnam under his/her possession. Bona fide possessor is protected by the law on property rights. Owning this type of property might be subject to many potential disputes which parties should consult with dispute lawyers in Vietnam from time to time to understand his/her rights to the property.

Bona fide Possession of Property in Vietnam

According to Clause 3 Article 184 of the 2015 Civil Code, a person possessing in good faith, continuously and overtly shall be eligible for prescriptive periods for enjoying the rights and enjoy the yield and income derived from the property as prescribed in this Code and relevant laws.

A person possessing in good faith is entitled to protect his/her rights and his right to possession when meeting specific conditions. Before a third person entered into a civil transaction, a prior civil transaction was established, the previous civil transactions were invalidated. Besides, the third person establishing civil transactions must be honest. Property traded in accordance with law and civil transactions must be compensated.

The owner has the right to reclaim the property from the rightful owner in accordance with Article 167 and Article 168 of the Civil Code 2015. Accordingly, depending on the type of property subject to ownership registration or not, the reclaim of ownership of the owner has a certain difference. Specifically, owners may reclaim movable property not subject to ownership right registration from bona fide possessors in cases where such bona fide possessors have acquired such property through unindemnifiable contracts with persons who have no right to dispose of the property; in case of indemnifiable contracts, the owners may reclaim the movable property if such movable property has been stolen, lost or other cases of possession against the owners’ will.

Owners may reclaim their movable property subject to ownership right registration and immovable property, except for cases where a civil transaction is invalid but the transacted property is registered at a competent authority and such property has already been transferred to a bona fide third party through another transaction which is established according to that registration, such transaction shall remain valid.

In cases where the transacted property which is required to be registered has not registered at a competent authority, the transaction with the third party shall be invalid, except for cases the bona fide third party received such property through an auction or a transaction with an another party being the owner of such property pursuant to a judgment or decision of a competent authority but thereafter such person is not the owner of the property as a result of the judgment or decision being amended or annulled.

ANT Lawyers is a law firm in Vietnam located in the business centers of Hanoi, Danang and Ho Chi Minh City.  We provide convenient access to our clients. Please contact us to book your time in advanced to let us provide our best service. Call us at +84 28 730 86 529 or send us email ant@antlawyers.vn.

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Guidance of unilateral divorce procedure in Vietnam

Divorce is the termination of husband and wife relationship according to the court’s legally effective judgment or decision. Divorce procedures are prescribed in the Civil Procedure Code, Law on Marriage and Family, Law on Mediation at grassroots… There are two forms of divorce in Vietnam: divorce at the request of one party (unilateral divorce) and divorce by mutual consent.

 

Divorce Dispute Law Firm in Vietnam

For divorce at the request of one party, the Court shall handle divorce at the request of spouse if it has grounds to believe that a spouse commits domestic violence or seriously infringes upon the rights and obligations of the husband or wife, which seriously deteriorates the marriage and makes their common life no longer impossible and the marriage purposes unachievable. The goals of a marriage that are not achieved include unequal obligations and rights between husband and wife; no husband and wife friendship; husband and wife do not respect each other’s honor, dignity and reputation; do not respect the right to freedom of belief and each other; do not help, and facilitate each other to develop in all aspects. In addition, a husband has no right to request a divorce when his wife is pregnant, gives birth or is nursing an under-12-month child. This provision limits the husband’s right to request a divorce when the wife is pregnant or is raising children under 12 months of age and if the wife requests divorce, whether she is pregnant or raising children under 12 months of age, the court the court still accepts and resolves like other normal cases.

Documents to file divorce petition?

Documents required for unilateral divorce include: Unilateral divorce application form; Marriage certificate (original copy); Identity card of husband and wife (certified copy); Child’s birth certificate (if there are common children, certified copy); Household registration book (certified copy); Documents proving ownership of common property (if there is common property, certified copy).

In order to proceed with a unilateral divorce, the petitioner needs to file a lawsuit for divorce at the competent court. The Court where the defendant resides and works is competent court to settle according to the first-instance procedure disputes about marriage and family. Therefore, in the case of unilateral divorce, the Court where the competent jurisdiction is located is the place where the defendant resides and works. In case of foreigners being husband or wife, the provincial/municipal courts are competent courts to settle.

What is procedure of divorce petition?

Before accepting the divorce petition, the State and society encourage the mediation at the grassroots level when the husband and wife request the divorce with petition. Mediation is conducted in accordance with the Mediation at grassroots.

After receiving the unilateral divorce petition, the Chief Justice of the Court assigns the Judge to examine the application and relevant papers. In case of necessity, the plaintiff shall notify the applicant of additional papers and necessary information. If the dossier is complete and eligible to accept the case, the Court shall notify the plaintiff of the advance payment of court fees at the Civil Judgment Execution Bureau within 7 days and return it to the Court a receipt of court fee advances. The judge proceeds to accept the case upon receiving the receipt of payment of court fee advances and shall notify the plaintiff, the defendant and the persons with relevant rights and obligations regarding the acceptance of the case within 03 days. The defendant and the persons with relevant rights and obligations within 15 days from the date of receipt of the notice of acceptance have the right to make counter-claims to the plaintiffs’ requests.

After the petition has been accepted, the Court shall conduct conciliation according to the law on civil procedures. The judge assigned to solve the case conducts a meeting to check the handover, access, disclosure of evidence and mediation of divorce between the involved parties and analyze clearly the rights and obligations for the involved parties to reach an agreement on the resolution of the case. In case after mediation the husband and wife reunite, it is considered the plaintiff withdraws the petition, and the Court issues a decision to suspend their request. If they cannot reunite but reach an agreement on the divorce, property division and children custody, after 7 days from the date the Court makes the minutes of the mediation to the parties without changing their mind. The Court shall recognize the divorce agreement and issue a decision recognizing the agreement of the parties. In case of unsuccessful mediation, the Court shall issue a decision to bring the case to trial if it is not in the case of suspension of settlement as prescribed.

How court trial is opened for divorce petition case?

Within 01 month from the day on which the decision to bring the case to trial is issued, the Court must open a trial. In case of good reason, this time limit may be extended but for no more than 2 months. At the end of the trial, the result of unilateral divorce resolution will be decided by the civil judgment. In case of unilateral divorce, the settlement time may be longer, maybe from 04 to 06 months. In fact, due to possible child custody and property disputes, the time to resolve may be longer.

For cases with disputes over assets, apart from the court fee of VND 300,000, the involved parties must also bear court costs for the disputed properties, determined according to the value of the disputed properties according to the provisions.

It is important that the parties need to research and prepare for relevant documents and procedures in their case and consult with lawyers in civil, family and property division, child custody disputes in Vietnam before taking action.

ANT Lawyers – a Divorce Dispute Law Firm in Vietnam has experience lawyers with divorce procedures or dispute matters of assets, properties in Vietnam. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

 

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