How US Authorities Could Request for Help on Taking the Evidence in Vietnam for Civil or Commercial Matters?

How US Authorities Could Request for Help on Taking the Evidence in Vietnam for Civil or Commercial Matters?

The Evidence Collection Convention is a multilateral Hague Conference convention that was signed on March 18, 1970 and went into effect on October 7, 1972. The objective of the Convention is to facilitate the collection of evidence and to harmonize the methods of evidence collection between States.

Evidence Law in Vietnam

On May 3, 2020, Vietnam became a party to the Convention on the Collection of Evidence Abroad. After becoming a member of this Convention, Vietnam only applies and accepts requests for evidence collection by a written request as described in Chapter I of this Convention. As a result, Vietnam does not use the process of gathering evidence carried out by a diplomatic officer, consular officer, or authorized person in Chapter II of the Convention.

Procedures for collecting evidence between the United States and Vietnam under the Hague Convention

Both Vietnam and the United States are parties to the Convention on Collection of Evidence. However, since Vietnam only participates in collecting evidence in writing, the United States has to collect evidence in Vietnam via this method.

Step 1: The U.S. Agency sends a written request to collect evidence to the Ministry of Justice of Vietnam

In the settling a case involving a civil or commercial field, the party can request the Court to assist in collecting evidence in Vietnam. The US judicial agency will issue a written request for evidence collection to the competent Vietnamese agency (specifically, the Ministry of Justice). This document must ensure that follow the contents of Article 3 of the Convention, and must be written in Vietnamese or accompanied by a Vietnamese translation and delivered via postal service.

Step 2: A written request for evidence collection is received by Vietnam’s Ministry of Justice

The Ministry of Justice of Vietnam will receive the request for evidence and decide whether or not to comply with the request for evidence collection. In the event of a refusal, the Ministry of Justice of Vietnam must clearly state the reasons specified in Article 12 of this Convention. For example, the request is not within the scope of the Convention in the civil and commercial fields, or the implementation of which may be detrimental to the sovereignty and security of that country, etc.

Step 3: The Ministry of Justice requests competent agencies to collect evidence

After having sufficient grounds to handle the request of the U.S. Agency, the Department of Justice will send a written acceptance of the request to collect evidence to the United States and forward it to the competent domestic agency for collection evidence process. The Vietnam agency will notify the U.S. Agency of the time, place, and procedures to collect evidence to be followed so that relevant parties and their representatives can be present.

When making the written request, a judicial officer from a U.S. agency may be present, and this presence has to be approved by the Vietnam Agency. Further, according to Article 11 of this Convention, the person being asked to provide evidence has the right to refuse to comply with the request for evidence collection if required by Vietnam law or  in the written request for evidence collection state that they can refuse to provide evidence expressly stated.

Step 4: The Ministry of Justice of Vietnam sends a written response on the results of evidence collection to the U.S. Agency

After receiving the results of evidence collection from other agencies, the Ministry of Justice sends a written response to the results of evidence collection to the U.S. Agency to compete the process.

To comply with the process and ensure the evidence could be properly collected for usage in trial, it is important to consult with dispute lawyers in Vietnam for legal advice.

ANT Lawyers, as a law firm in Vietnam, will always follows up the evidence in Vietnam for civil or commercial matters to update clients on regular basis.

Source: ANT Lawyers.vn

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Regulations of Radio and Television Services in Vietnam

What Changes in Decree 71/2022/ND-CP  on Regulations of Radio and Television Services in Vietnam?

Along with the strong development of the Internet is an increase in people’s demand for using television services on the Internet instead of the traditional methods. Television services on the Internet providing domestic and foreign programs, movies, etc. have brought a significant source of revenue for domestic and foreign enterprises providing radio and television services. However, to ensure legal fairness for domestic enterprises as well as foreign enterprises doing business in providing this service to users, on October 1^st, 2022, the Government issued Decree 71/2022/ND-CP amending and supplementing some articles of Decree No. 06/2016/ND-CP dated January 18^th, 2016 on management, provision and use of radio and television services. The promulgated Decree has added new regulations on the management of domestic and foreign enterprises providing radio and television services, or in other words, changes in broadcast law in Vietnam. Specific details should be advised by media and entertainment lawyers in Vietnam however this write-up expects to provide some update on the development of regulations in this area.

As for management policies, the Decree stipulates the management of the provision and use of radio and television services in Vietnam, including radio and television services on the Internet, or across borders to users in the territory of Vietnam. Accordingly, foreign enterprises providing across borders radio and television services in Vietnam must be managed and comply with the provisions of Vietnam law.

For internet radio and television services (OTT TV), enterprises can choose from two service delivery models: (i) OTT TV provides both online channels and on-demand content (VOD) and (ii) OTT TV only provides VOD (OTT TV VOD). For OTT TV VOD service, enterprises are not required to provide program channels like traditional services and only needed to make a declaration according to the form of the Ministry of Information and Communications, instead of having to make a scheme as previously required to apply for a license to provide paid radio and television services. This regulation creates favorable conditions for domestic enterprises with the same technical conditions as foreign enterprises to participate in providing radio and television services on demand on the internet. Foreign enterprises wishing to participate in the market must also carry out the procedures for applying for a license like domestic enterprises.

The next highlight of Decree No. 71/2022/ND-CP is the addition of regulations on editing, classifying and translating radio and television content on demand (VOD). Enterprises are allowed to actively edit and classify VOD content as movies, sports and entertainment programs when meeting the conditions and criteria as prescribed by competent agencies which previously, according to the provisions of Decree No. 06/2016/ND-CP, all VOD content must be edited by a press agency with a radio and television license before being provided on the service. Accordingly, this content is divided into 03 groups to perform as follows:

(i) For news and current affairs programs; programs on politics, national defense, security, economy, and society must be produced and edited by a press agency that has licensed to operate radio and television before being provided on the service;

(ii) For films: Before providing services, enterprises must ensure conditions for the classification of films according to the Government’s regulations and take responsibility to the law for the content and results of film classification according to the classification criteria prescribed by the Vietnam Ministry of Culture, Sports and Tourism; In case enterprises have not yet met conditions for classification of films, it is requesting the Ministry of Culture, Sports and Tourism or an agency authorized by the Ministry of Culture, Sports and Tourism to classify films that have not been granted a Film Classification License or a Broadcast Decision;

(iii) For sports and entertainment programs: Enterprises must edit and classify before providing them on the service and display warnings while providing services, ensuring that they do not commit violations against regulations of Vietnam law. Enterprises shall work on the principles of editing, classifying, and warning content in accordance with regulations of the Ministry of Information and Communications and relevant laws to carry out editing and classification activities.

Regarding regulations on translation management, enterprises are allowed to take the initiative in translation activities. The translation of foreign programs and channels, enterprises must respect and preserve the purity of the Vietnam language, and ensure that they do not violate the prohibitions according to the provisions of Vietnam law.

In addition to supplementing regulations on management policies, Decree 71/2022/ND-CP has added regulations to reduce administrative procedures, and orient online application components to reduce costs for enterprises providing radio and television services. Accordingly, enterprises that wish to apply for a license i.e. a license to provide paid radio and television services, amend or supplement the content of the license, or re-issue the license, only need to prepare set of 01 (a) dossier (previously two sets, 01 sets of originals, 01 sets of copies) and can submit online on the online public service portal of the Ministry of Information and Communications for cases which electronic authentication certification is available. In addition, the processing time for the above procedures and documents are also significantly shortened, creating favorable conditions for enterprises when carrying out administrative procedures quickly, ensuring that the business operations are not affected.

Decree No. 71/2022/ND-CP officially took effect on January 1^st, 2023.

ANT Lawyers, as a reliable law firm in Vietnam, we focus on providing possible solutions that best meet the needs of legal and business clients. We help customers achieve their goals while protecting their interests, minimizing risks, and complying with the law.

Tell us how we can be of service and one of our team members will contact you. Email: ant@antlawyers.vn, Tel: +84 28 730 86 529.

Source: ANT Lawyers.vn

 

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How Foreign Entity Could Set up a Branch Office in Vietnam

How Foreign Entity Could Set up a Branch Office in Vietnam

A foreign business entity or a foreign trader is allowed to set up a branch office in Vietnam to conduct business activities.

How to Set up branch office in Vietnam?

Having the right to conduct business activities and make profit are how a branch differs from a representative office in Vietnam. A branch depends on the foreign business entity that set-up the branch while a foreign owned company set-up in Vietnam exists by itself. The Vietnam Department of Industry and Trade will be approving the establishment of a branch office in Vietnam while Vietnam Ministry of Planning and Investment will be the State agency that coordinate the setting up a company in Vietnam.

In particular, the branch of a foreign business entity in Vietnam (referred to as the “Branch”) means a subsidiary unit of the foreign business entity, established in accordance with the law of Vietnam in order to enter into contracts in Vietnam and conduct activities being the purchase and sale of goods and other commercial activities consistent with its licence for establishment in accordance with the law of Vietnam and any international treaty to which the Socialist Republic of Vietnam is a member.

The Branch will need to apply and obtain the establishment license; and have a seal bearing the name of the branch.

1. Rights of the Branch

-To rent offices and to lease or purchase the equipment and facilities necessary for the operation of the branch.

-To recruit Vietnamese and foreign employees to work for the branch in accordance with the law of Vietnam.

-To enter into contracts in Vietnam in accordance with the activities stated in the license for establishment of such branch and in accordance with the Vietnam Law.

-To open Vietnamese dong and foreign currency accounts at banks which are licensed to operate in Vietnam.

-To remit profits abroad in accordance with the law of Vietnam.

-To have a seal bearing the name of the branch in accordance with the law of Vietnam.

-To conduct activities being the purchase and sale of goods and other commercial activities consistent with its license for establishment in accordance with the law of Vietnam and any international treaty to which the Socialist Republic of Vietnam is a member.

2. Requested Conditions for Establishment the Branch Office in Vietnam

A foreign company which has effectiveness business activities will be allowed to open the branch office in Vietnam if this company has real demand to open the market in Vietnam and meet some conditions as below:

-Being a trader recognized by the law of the country where it has been lawfully established or made its business registration;

-Having been operating for at least five years after its lawful establishment or business registration certificate in Vietnam.

3. Issuance the Certificate of Branch:

The issuance of the Certificate of Branch will be implemented by the Department of Industry and Trade Department after the foreign company meets all of conditions as Vietnam legal requirements.

The issuing period will be within 20 working-days after the date of submitting the full valid documents as requested.

With highly professional staff and great experience in investment in Vietnam, ANT Lawyers – English speaking law firm in Vietnam would like to support you to set up the branch office in Vietnam

Source ANTLawyers: https://antlawyers.vn/legal-service/establishment-of-the-foreign-traders-branch-in-vietnam.html

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New Regulations of Intellectual Property Law in 2022

Intellectual property is currently playing a very important role in Vietnam and other countries around the world. With the participation in Trade Agreements and market expansion, the regulations on intellectual property have had many positive changes towards the protection and promotion of intellectual property rights and in line with the general trend of countries.

Intellectual property rights in Vietnam

Intellectual property rights are the rights of organizations or individuals to trademarks, inventions, designs or other forms of creation. Currently, intellectual property rights are recognized as an asset class, which can constitute corporate assets. Popular groups of intellectual property today include: (i) Copyright; (ii) Inventions; (iii) Industrial design; (iv) Trademarks. These are objects created by thinking, mental labor, cognitive activities of people and protected by law.

Currently, intellectual property rights are governed by the 2005 Intellectual Property Law, which was amended and supplemented in 2009, and 2019. These are efforts in changing Vietnam’s legal system in raise awareness and perfect the legal system on intellectual property of Vietnam. Up to now, the Intellectual Property Law has created a legal corridor for organizations and individuals to establish and protect intellectual property rights, contributing to encouraging creative activities, and enhancing the value of intellectual property, wisdom. However, after 17 years since its promulgation, the Law on Intellectual Property has also arisen problems, inadequacies and incompatibility to ensure the implementation of commitments on intellectual property in trade agreements to which Vietnam is a member.

To implement the above guidelines and policies, the National Office of Intellectual has coordinated with relevant agencies to change and supplement regulations on intellectual property accordingly. Accordingly, the content of amendments to the Intellectual Property Law focuses on importnt groups of policies with about 100 amended and supplemented articles. Therefore, obstacles and inadequacies such as regulations on licensing of patents, industrial designs, layout designs and plant varieties are the result of scientific and technological tasks using the state budget; regulations relating to procedures for registration and establishment of intellectual property rights and validity of protection titles; regulations on security control for inventions before registration abroad; on compensation to patent owners for delays in marketing authorization of pharmaceutical products; on sound trademark protection; on geographical indication management; on liability for copyright and related rights for enterprises providing intermediary services.

In addition to the Draft of Intellectual Property Law, the Draft Circular is also proposed to stipulate economic – technical norms for a number of public services funded by the state budget, including training and retraining services on Intellectual Property, the service of confirming the validity of international registration of trademarks protected in Vietnam.

Moreover, the National Office of Intellectual also implemented the reform and modernization of the information technology system, reducing the burden of administrative procedures, internal processes to handle administrative procedures; actively review and evaluate administrative procedures and develop a plan for decentralization and simplification of administrative procedures in the field of intellectual property; organize the collection of fees and charges via commercial bank accounts and issue receipts of electronic fees and charges. In addition, the information synchronization for the Government’s National Public Service Portal is also interested in development.

The new Draft Law on Intellectual Property has many additions and adjustments in accordance with practical requirements and is expected to take effect, which will help solve problems that still exist. However, in order to ensure that the enforcement of intellectual property rights is effective and meets the set requirements, businesses need to pay attention and comply well with legal regulations.

If the client needs any other information or requires for further advice, our IP attorney in Vietnam at ANT Lawyers, the IP agent in Vietnam will be available for service.

 

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Why Da Nang is a Place for Setting up Business

Da Nang has been creating flexible policies, good environments attracting foreign investors setting up company, building factory, and developing service business.

Setting up Business in Da Nang

Da Nang is a social and economic center of central area of Vietnam with the role as the center of industry, trade and tourism and service. It is a seaport city, an important transport hub for the transit of domestic and international transportation. Presently, Da Nang has been rising as a comprehensive and sustainability developing city.

With the advantages of geographical location, people and nature, the leader of Da Nang is planning to build the city becoming a major tourist center of the country, developing tourism industry with entertainment centers and luxury resorts in Vietnam.

In practice, Da Nang has been reducing administrative procedures, creating favorable conditions for investors in obtaining certificate for investment. In the meantime, the city also supports investors understanding the information and maintaining direct dialogue mode with businesses leaders and managers in order to promptly assist any difficulties encountered by investors in the process of project implementation. Da Nang’s leaders are famous in being proactive in providing the latest information about the law in investment, especially information on the process of changing investment certificate… to facilitate the investment plan of the investors whom are investing in Da Nang. For investment projects in infrastructure construction using ODA capital, the city has been quickly implemented the clearance and compensation in time to hand over the project site to the investors as planned.

To ensure the tourism environment and sustainable development, the city focuses on attracting projects in high technology industry, supporting industry and services with high added value i.e. information technology, education, healthcare and logistics…, especially favouring clean and quality projects rather than large projects but are likely to cause environmental issues.

Along with economic development, Da Nang also has activities and measures for environmental protection by investing in building projects to protect and improve the environment such as: modernization the sewer and wastewater treatment system (JICA), building east-west economic corridor (ADB)… to ensure sustainable and long term development of the economy.

An important element for economic development is the local security. Da Nang has done a great job in maintaining public security in order to guarantee investors a stable and safe political, social environment for investors.

It can be seen that Da Nang converges suitable elements and really is a promising land for investors both domestic and international, to invest in entertainment, real estate, tourism, IT, healthcare, education services.

With highly professional staff and great experience in business in Vietnam, ANT Lawyers would like to support you to establish company in Vietnam.

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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How to Set Up Company in Hanoi?

How to Set Up Company in Hanoi?

The Law on investment 2021 has a lot of investment incentive policies in economic sectors in Vietnam for foreign investors.

Foreign investors that invest in Vietnam in general and Hanoi in particular for the first time must have investment projects and fill in investment registration or examination procedures at state agencies in charge of investment in order to be granted Investment Registration Certificates (“IRC”) and Enterprise Registration Certificate (“ERC”). Company with 100% foreign capital has founded and operated from the date of issuance of the investment certificate.

The investor who wishes to apply for IRC in Hanoi, s/he need to have a possible project which is accepted by the Government (The Department of Planning and Investment of Hanoi City). The dossier on applying for IRC

For Investment Registration Certificate, the investor must prepare the dossier included:

i) An application form for execution of the investment project, including a commitment to incur all costs and risks if the project is not approved;

ii) A document about the investor’s legal status;

iii) Document(s) proving the financial capacity of the investor including at least one of the following documents: the investor’s financial statements for the last two years; commitment of a parent company to provide financial support; commitment of a financial institution to provide financial support; guarantee for the investor’s financial capacity; other document proving the investor’s financial capacity;

iv) Proposal for the investment project including the following main contents: investor or method of investor selection, investment objectives, investment scale, investment capital and plan for raising capital, location, duration and schedule of the investment project, information about the current use of land in the location of the project and proposed demand for land use (if any), demand for labor, proposal for investment incentives, impact and socio – economic efficiency of the project and preliminary assessment of environmental impact (if any) in accordance with regulations of law on environmental protection.

If the law on construction requires formulation of a pre-feasibility study report, the investor is entitled to submit the pre-feasibility study report instead of a proposal for the investment project.

v) If the project does not require the State to allocate or lease out land or to permit land repurposing, a copy of the document regarding the land use rights or other document identifying the right to use the location for execution of the investment project is required to be submitted;

vi) Contents of the explanation for the technology to be used in the investment project if the project requires appraisal and collection of opinions on the technology in accordance with the Law on Technology Transfer;

vii) The business cooperation contract if the investment project is executed under a business cooperation contract;

viii) Other documents relating to the investment project, and requirements on the eligibility and capacity of the investor in accordance with regulations of law (if any).

After having the project, the investor needs to apply for Business Registration Certificate, the dossier included:

i) An application for enterprise registration;

ii) The enterprise’s charter;

iii) A list of members of a limited liability company with two or more members or a list of general partners;

iv) A notarized copy of identity card or valid passport of individual member;

v) A notarized copy of the Business Registration Certificate of the organization’s member;

vi) A notarized copy of valid identity card or passport of the organization’s legal representative;

vii) The copy of Investment Registration Certificate.

The time for applying the investment project is 15 working days and the time for applying the company is 03 working days after the date of submitting the valid dossier.

ANT Lawyers, a law firm in Vietnam could offer service to set-up company in Vietnam. We assist clients needing legal service in obtaining investment certificate, business registration certificate, or other  licensing procedures.

 

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What Conditions for Arbitration Agreement to Take Effect in Vietnam?

Commercial arbitration means a mode of dispute settlement agreed by the parties and to be conducted in accordance with law. Arbitration agreement means an agreement between the parties to settle by arbitration a dispute which may arise or has arisen. Dispute is settled by arbitration if the parties have agreed to arbitration.

Arbitration Law Firm in Vietnam

In order for the arbitration agreement to take effect, what conditions must be met?

The Commercial Arbitration Law 2010 does not specify the conditions for an arbitration agreement to take effect. However, based on the cases when the arbitration agreement is invalid, we can draw out the basic conditions for the arbitration agreement to be effective.

Parties of the agreement: this condition is considered as the most important when it directly affects the validity of civil transactions in general and arbitration agreements in particular. Accordingly, the person establishing the arbitration agreement has civil capacity as prescribed in the Civil Code 2015.

Jurisdiction of arbitration: the arbitration agreement must belong to the fields under the jurisdiction of the arbitration. Specifically, it is an agreement that requests arbitration to resolve disputes between parties arising from commercial activities; disputes arising between the parties in which at least one party has commercial activities or other disputes between the parties as prescribed by law shall be settled by arbitration.

Arbitration agreement form: the arbitration agreement may be established in the form of an arbitration clause in a contract or in the form of a separate agreement. The arbitration agreement must be established in the form of a document prescribed in Clause 2, Article 16 of the Commercial Arbitration Law 2010, such as an agreement made through communication between the parties by telegram, fax, telex, email or other forms provided for by law; agreement is established through the exchange of written information between the parties; …

The will of the parties when signing: the parties must be completely voluntary in concluding the arbitration agreement. The parties shall not be deceived, intimidated or coerced in the process of establishing an arbitration agreement. The arbitration agreement violates the prohibition of the law.

In case multiple arbitration agreements are made on the same dispute, the latest lawful agreement shall apply.

Besides, there are many matters that impact the dispute which parties should consider and it is important that parties engage with dispute lawyers in Vietnam early in the dispute stages to review relevant matters and prepare a strategic approach to the dispute for most effective solution.

ANT Lawyers – as a law firm in Vietnam always follow up the Commercial arbitration cases and their development to update clients on regular basis.

 

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