What Procedures an Enterprise Complies on Publishing Business Information?

Provisions on announcing of business information are stipulated in the Law on Enterprise and other decrees which company has to comply as part of compliance procedures.

After being granted an enterprise registration certificate, under the Enterprise Law, an enterprise must publicly announce it on the National Business Registration Portal according to the order, procedures and pay fees as required. The application for publication of enterprise registration information is a compulsory procedure, made at the time an enterprise submits its enterprise registration dossier. Information about publication of enterprise registration information is posted on the National Business Registration Portal. The content to be published includes the contents on the enterprise registration certificate and the lines of business. In addition, for joint stock companies with foreign investors, a list of founding shareholders and foreign investors is required. In case of changes in enterprise registration contents, the corresponding changes must be publicly announced on the National Business Registration Portal.

Provisions on form, time and content of announcement are different from those in the Law on Enterprise, specifically, within a period of thirty days from the date of being granted an enterprise registration certificate, an enterprise must publish information in one of the forms posted on the business information network of the business registration agency or one of the written or electronic newspapers in three consecutive issues. The main content to be published includes: Company’s name; Address of the head office of the enterprise, branch or representative office; Lines of business; Charter capital of limited liability company and partnership company; number of shares and value of contributed capital and number of shares to be issued with joint stock company; initial investment capital for private enterprises; legal capital for enterprises conducting lines of business requiring legal capital; Full name, address, nationality, ID card number, passport or other legal personal identification number, establishment decision number or business registration code of the owner, member or shareholder foundation; Full name, permanent address, nationality, ID card number, passport number or other legal personal identification of the legal representative of the enterprise; Place of business registration.

For publication fees, according to the provisions of Circular no. 47/2019/TT-BTC stipulating the rates, collection, payment, management and use of information provision charges of enterprise information that takes effect from the date of On September 20, 2019, the enterprise registration fee and the enterprise registration content announcement fee are VND 100,000/time, instead of the VND 300,000/time as stipulated in Circular no. 215/2016/TT-BTC regulating the rates, collection, remittance, management and use of charges for provision of enterprise information and enterprise registration fees.

In addition, there are some enterprises that do not need to publish their business information on the National Business Registration Portal before going into operation, but make other forms of announcement. For example, for a law-practicing organization, within thirty days after being granted operation registration papers, law-practicing organizations must publish on daily newspapers of central or local registry of law practice or newspaper for three consecutive issues. For credit institutions, foreign bank branches, representative offices of foreign credit institutions and other foreign institutions engaged in banking activities, they must be published on the State Bank’s media, and in a daily newspaper written in 03 consecutive issues or an electronic newspaper of Vietnam at least thirty days prior to the scheduled date of operation of opening information as prescribed in Article 25 of the Law on Credit Institutions 2010.

In addition to disclosing corporate information, there is also a procedure for disclosure of information on the stock market that is applicable to public companies and bond issuers (except for government bond issuers and bonds), government-guaranteed bonds and local government bonds), securities companies, fund management companies, branches of foreign fund management companies in Vietnam, public funds. These companies and organizations must comply with the law on securities in the Securities Law announcing on the company’s website and information disclosure system of the State Securities Commission.

ANT Lawyers is a law firm in Vietnam located in the business centers of Hanoi, Danang, Ho Chi Minh city. We provide convenient access to our clients. Please contact our lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

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What Are Advantages Resolving Disputes by Commercial Arbitration?

Commercial arbitration is a method of settling disputes selected by the parties and conducted in accordance with law. Compared with other method of dispute resolution such as mediation, negotiation, court litigation, dispute resolution by commercial arbitration also has advantages and disadvantages.

In accordance with Vietnamese law and international law, the method of dispute resolution by commercial arbitration also stems from the agreement of the parties on a voluntary basis. However, the difference between these methods is that the settlement of disputes through arbitration will be governed by the Commercial Arbitration Law. The parties are allowed to agree on appropriate arbitration selection, either before or after the dispute arises.

The practice of applying commercial arbitration law in resolving disputes presents some advantages:

Firstly, this is a method of resolving disputes on the principle of confidientiality if the parties do not agree otherwise. This is an advantage that all claimants respect because it limits the disclosure of business secrets, and keeps the credibility of the parties.

Secondly, the decision of the arbitrator is final, binding on the parties and the right to appeal in this case is invalid. The trial at Commercial Arbitration takes place only at one trial level, which the trial at the Court is at two levels. Therefore, it creates a premise for the following advantages.

Thirdly, the settlement of disputes arising through commercial arbitration shows flexibility while shortening the proceedings thereby contributing to saving time and effort of the parties.

Fourthly, the settlement of disputes by arbitration is not territorially limited so the parties may agree to choose any arbitrator to resolve their disputes.

However, the competing parties also need to pay attention that the choice of arbitration method also reveals some disadvantages such as: The enforcement of arbitral awards depends heavily on the willingness of the parties to the dispute. If the party who is serving the judgment does not voluntarily follow the arbitral awards and does not request to cancel the arbitral award after the expiration of the time limit for enforcing the arbitral award, the judgment-executing party may send a written request to the civil judgment enforcement agency for judgment execution.

In addition, one of the disputing parties may submit a request to the Court to cancel the arbitration award when encountering one of these following conditions: (i) There is no arbitration agreement or the arbitration agreement is invalid; (ii) The arbitration council’s composition or procedures of arbitral proceedings does not comply with the parties’ agreement or regulations; (iii) The dispute falls beyond the arbitration council’s jurisdiction: when an arbitral award contains the details falling beyond the arbitration council’s jurisdiction, such details shall be cancelled; (iv) The evidence provided by the parties on which the arbitration council bases to issue the award is counterfeit: an arbitrator receives money, assets or other material benefits from one disputing party, thus affecting the objectivity and impartiality of the award; (v) The award contravenes the fundamental principles of Vietnamese law.

Finally, when the parties choose to resolve their disputes by arbitration method, the costs are relatively higher than in the proceeding of court litigation.

At ANT Lawyers - a law firm in Vietnam our trial lawyers with accreditation in national and international arbitration practice could help providing legal advice in disputed matters, and guide the clients through out the process.  The lawyers could also advise the clients on various matters from choice of arbitrator, choice of arbitration rules, ad-hoc or institutional arbitration, place of arbitration, enforcement of arbitral award.

Employees as well as the labor collective and employers should pay attention to selecting the most appropriate and optimal resolution solution when labor disputes occur.  It is also suggested to consult with labour lawyers of law firm speacializing in employment matters for efficiency.

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Can Employer Terminate the Labor Contract 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 labor 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.

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 labor 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.

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

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Several Noted Points on Law Competition of 2018

On Jun 12th,2018, The National Assembly promulgated Competition Law which will take effectfrom July 1st, 2019 and replace the Competition Law 2004. According to Article 3.9, violation of regulations on economic concentration is one of three signs of violation of competition law.

                            

Firstly, economic concentration includes the following forms: (1) Merger of enterprises; (2) Consolidation of enterprises; (3) Acquisition of enterprises; (4) Joint venture between/among enterprises; (5) Other forms of economic concentration under regulation of the laws (Article 29). Subject carrying out activities of economic concentration is enterprises and the purpose of economic concentration is to gain control the objective enterprises and to govern the market to a certain extent.

Secondly, economic concentration shall be prohibited if it makes or potentially makes significant competition-restraining impact on the Vietnamese market. Specifically, the National Competition Commission shall assess the impact or ability making significant competition-restraining impact of economic concentration based on the following factors: (1) Combined market share of enterprises engaging in the economic concentration on the relevant market; (2) The degree of concentration on the relevant market before and after the economic concentration; (3) The relationship of the enterprises engaging in the economic concentration in the production, distribution or supply chain for a certain kind of goods/service or the business lines of the enterprises engaging in the economic concentration which are inputs or complementary to one another; (4) Competitive advantage brought about by economic concentration in the relevant market; (5) The ability of enterprises after the economic concentration for increasing significantly their prices or Return on sales; (6) The ability of enterprises after the economic concentration for removing or preventing other enterprises from market entry or expansion; (7) Particular factors in the sectors, areas which enterprises are engaging in economic concentration.

Thirdly, enterprises engaging in the economic concentration shall submit notification dossier of economic concentration to the National Competition Commission before initiating economic concentration if they reach the threshold of economic concentration notification. The notification threshold shall be determined based on one of the following criterias: (1) Total assets of the enterprises engaging in the economic concentration on the Vietnamese market; (2) Total turnover of enterprises engaging in the economic concentration on the Vietnamese market; (3) The transaction value of the economic concentration; (4) Combined market share of enterprises engaging in the economic concentration on the relevant market. For efficient preparation of dossiers, the consultation with M&A lawyers, anti competition lawyer are suggested.

Fourthly, regarding assessment procedure, the National Competition Commission shall receive notification dossier of economic concentration, preliminarily assess the economic concentration. Matters of preliminary assessment of economic concentration include: (1) Combined market share of enterprises engaging in the economic concentration on the relevant market; (2) The degree of concentration on the relevant market before and after the economic concentration; (3) The relationship of the enterprises engaging in the economic concentration in the production, distribution or supply chain for a certain kind of goods, service or the business lines of the enterprises engaging in the economic concentration which are inputs or complementary to one another. Within 7 working days from receipt of notification dossier of economic concentration, the National Competitive Commission shall notify the applicant in writing that whether the dossier is complete and valid. If the dossier is incomplete or invalid, the National Competition Commission shall notify the applicant in writing of specific content needed to amend, supplement within 30 days from the date of notice. Upon expiry of 30 days, if no amendment, supplementation is made or the dossier is not amended, supplemented completely at request, the National Competition Commission shall return the notification dossier.

After preliminary assessment of economic concentration, the National Competition Commission shall officially assess the economic concentration within 90 days from the date of notice of preliminary assessment result. In complicated cases, the National Competition Commission may extend the time limit of official assessment but it can not exceed 60 days and inform in writing enterprises submitting the notification dossier of economic concentration. Matters of official assessment of economic concentration include: (1) Assessing the impact or ability making significant competition-restraining impact of economic concentration; (2) Assessing the positive impact of economic concentration; (3) Assessing generally the ability making competition-restraining impact and ability making positive impact of economic concentration to. In process of official assessment of economic concentration, the National Competition Commission require the enterprise to submit notification dossier of economic concentration in order to supplement information, documents but this does not exceed 2 times. The enterprise submitting notification dossier of economic concentration shall be responsible for supplementing the information, documents relating to economic concentration and be responsible for the completeness and accuracy of such information, documents at the request of the National Competition Commission. This supplementation duration shall not be included in the time limit for assessing economic concentration. If the enterprise fails to supplement fully information, documents or supplement incompletely information, documents at request, the National Competition Commission shall consider, decide on the basis of available information, documents.

The fifth matter is right, responsibility and authority of the parties. In process of assessing economic concentration, the National Competition Commission is entitled to consult the bodies managing sectors, areas which enterprises are engaging in operating economic concentration, consult other relevant enterprises, organizations, and individuals; be responsible for ensuring confidentiality of information, documents provided under regulations of the laws; has the authority to handle complaints against decisions on settlement of violations against regulations on economic concentration. The consulted bodies are responsible for responding to consulted  matters in writing within 15 days from the date on which the request for consultation made by the National Competition Commission is received. Relevant bodies, organizations, and individuals is responsible for fully, accurately and promptly providing information, documents at request of the National Competition Commission in the process of assessing economic concentration unless otherwise stipulated.

Sixthly, regarding decision on economic concentration, after and based on the official assessment of economic concentration, the National Competition Commission shall issue a decision determining that: (1) The economic concentration is approved. This decision shall be sent to enterprises engaging in economic concentration within 5 working days from the date of issue; (2) the economic concentration is conditional; (3) the economic concentration is prohibited. If the National Competition Commission issues a decision behind schedule which causes damage to enterprises, it shall compensate for such damage under regulation of the laws. Decision on economic concentration shall be announced, except for the matter relating to State secrets or trade secrets.

Seventhly, conditional economic concentration is economic concentration which is approved and it shall meet one or more of the following conditions: (1) Division, split, resale of a part of capital contribution and property of enterprises engaging in economic concentration; (2) Control of the matters relating to the purchase and sale prices of goods, services or other trading conditions in contracts of enterprises formed after the economic concentration; (3) Other measure for remedying the ability making competition-restraining impact on the market; (4) Other measures for enhancing the positive impact of economic concentration.

Finally, violations against regulations on economic concentration includes the following violations: (1) An enterprise fails to notify of economic concentration; (2) An enterprise implements economic concentration without receiving a notification of preliminary assessment from the National Competition Commission; (3) An enterprise in cases of official assessment implements economic concentration before the National Competition Commission issues a decision; (4) An enterprise fails to perform or incompletely perform conditions specified in the decision on economic concentration; (5) An enterprise implements economic concentration which is prohibited.

For consultation, we at ANT Lawyers, a law firm in Vietnam will be available for legal help.

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How to Resolve Disputes in Employment in Vietnam?

A labor dispute is a dispute over rights, obligations and interests arising between parties in employment relationship. Labor disputes include individual labor disputes between employees and employers, and collective labor disputes between labor collectives and employers. When a labor dispute occurs, the competent agency, organization or individual will settle it on the basis of the measures and principles of labor dispute settlement prescribed in Chapter XIV of the Labor Code 2012.

Methods of dispute settlement in international trade

Measures for resolving labor disputes include: negotiation, grassroots conciliation, settlement of individuals and organizations competent to settle labor disputes.

For individual labor dispute resolution, labor conciliator, People’s Court is an individual or organization competent to resolve disputes. Labor conciliator; Chairman of the district People’s Committee; The People’s Court is competent to resolve collective labor disputes over labor rights and conciliators; The Labor Arbitration Council is competent to settle collective labor disputes about benefits.

Negotiation is a method of resolving a dispute in which the parties to a dispute deal directly with each other in order to reach an agreement on the settlement of the dispute. In fact, this is the most widely used solution. During the negotiation process, the parties will discuss issues related to the dispute, and propose solutions to resolve that dispute. The decision is made on the basis of agreement between the parties themselves and is not the result of any external pressure.

Unlike negotiation, conciliation is a method of resolving disputes involving third parties but not third parties make decisions but only support and guide the parties to negotiate. Under the provisions of Clause 1, Article 201 of the Labor Code 2012, individual labor disputes must go through the conciliation procedure of a labor conciliator before requesting a court to settle them, except for labor disputes on disciplinary measures in the form of dismissal or disputes over the unilateral termination of the labor contract; compensation for damages, benefits when terminating a labor contract; between domestic servants and employers; on social insurance in accordance with the law on social insurance, on health insurance in accordance with the law on health insurance; on compensation for damages between laborers and enterprises and non-business units that send laborers to work abroad under contracts. If the two parties reach an agreement, the labor conciliator shall make a record of successful conciliation. On the contrary, the two parties cannot reach an agreement, and the labor conciliator issues a conciliation plan for the two parties to consider and if the two parties accept the conciliation plan, the labor conciliator shall make a record of successful conciliation. In case the two parties do not accept the conciliation plan or a disputing party has been duly summoned for the second time but still absent without plausible reasons, the labor conciliator shall make a record of unsuccessful conciliation.

Dispute resolution by the Chairman of the district People’s Committee is the method to be applied when there is a request for resolving a collective labor dispute on rights. Chairpersons of district-level People’s Committees shall base themselves on labor laws, collective labor agreements, registered labor rules and legal regulations and agreements to consider and settle labor disputes dynamic.

The Labor Arbitration Council is the competent authority to settle collective labor disputes about benefits. At the meeting of the Labor Arbitration Council, there must be representatives of both parties to the dispute. The Labor Arbitration Council has the responsibility to assist the parties in self-negotiation. In case the two parties reach an agreement or accept the mediation plan, the Labor Arbitration Council shall make a record of successful mediation and issue a decision recognizing the agreement of the parties. In case the two parties fail to reach an agreement or one of the disputing parties has been duly summoned for the second time but still absent without plausible reasons, the Labor Arbitration Council shall make a record of unsuccessful mediation and after within 03 days, the labor collective has the right to carry out the procedures to go on strike.

Trial is a mode of resolving individual labor disputes and collective labor disputes over rights, in which the Court will issue a judgment or decision to resolve the case. The settlement of labor disputes in court is generally the final settlement activity after the dispute has been settled at other stages with no results. The settlement of labor disputes at the Court is done by a judicial body with special state power, proceeding according to the strict procedures and procedures prescribed in the Civil Procedure Code 2015. The greatest advantage of this method of dispute resolution is that the court’s decisions on labor disputes are guaranteed to be enforced by state coercive measures.

Employees as well as the labor collective and employers should pay attention to selecting the most appropriate and optimal resolution solution when labor disputes occur.  It is also suggested to consult with labour lawyers of law firm in Vietnam speacializing in employment matters for efficiency.

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Procedures for Issuance of an Export Permit for Medical Masks During the Prevention and Control of Covid-19 Epidemic Period

On March 11, 2020, Decision 868/QD-BYT of the Ministry of Health stipulates the issuance of export permits for medical masks in the period of preventing and controlling Covid-19. This Decision applies to agencies and organizations assigned by the Government to export medical masks for the purpose of international aid and assistance under Clause 1 of Resolution No. 20/NQ-CP of February 28, 2020 of the Government.

Accordingly, the Ministry of Health applies the export licensing regime for medical masks in the stage of COVID-19 disease prevention and only allows export for the purpose of international aid and assistance of the Government of Vietnam. Maximum of 25% of output for export, 75% of output for domestic disease prevention and control.

Medical masks must meet the minimum standards of TCVN 8389-1:2010; TCVN 8389-2:2010; TCVN 8389-3:2010 and has a circulation number issued by the competent health authority as prescribed.

A dossier of grant of a medical mask export permit includes: A written request for export license (01 original, made according to form No. 01 promulgated together with this Decision); Valid copies of documents of the Government, the Prime Minister or notices of the Government Office on the assignment of export of medical masks for the purpose of international aid and assistance. For effective preparation of dossiers, it is suggested to consult with import, export and customs lawyers whom specialize in international trade and government regulations.

Within 01 day (within 24 hours) after receiving the complete and valid dossier of the unit, the Department of Medical Equipment and Health Works under the Ministry of Health considers granting an export permit. In case of refusal to grant a permit, the Ministry of Health shall issue a written reply clearly stating the reason. The export permit is sent to the unit requesting the export to submit to the Customs Office when carrying out export procedures.

The Decision takes effect from the date of signing, the unit assigned by the Government to export medical masks is only granted the medical mask export permit when it has all valid dossiers as prescribed. This is to ensure domestic masks for the prevention and control of domestic epidemics.

The changes of laws will be monitored by ANT Lawyers - A law firm in Vietnam.  For advice or service request, please contact us via email ant@antlawyers.vn or call +84 28 730 86 529.

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Update on Anti-dumping for Some Monosodium Glutamate (MSG) under Case AD09

From March 2016, MSG product imported into Vietnam has been imposed trade remedies according to petition of Vedan Vietnam Enterprise Corp.,Ltd. Safeguard duty adding to import tax rate is imposed on additional levels converted into 4.33 million dong/ton from the first year and descending only 3,2 million dong/ton by 2020. From March 25^th, 2020, imported MSG tax shall return 0 dong if plaintiff no longer extends the safeguard measure.

Antitrust Lawyers in Vietnam

On August 19^th, 2019, Trade Remedies Authority of Vietnam (TRAV), Ministry of Industry and Trade received request dossier for applying the anti-dumping measures (AD) on MSG product with HS code 2922.42.20 (“Goods under investigation”) originating from People's Republic of China (“China”) and Republic of Indonesia (“Indonesia”). Plaintiff accused MSG imported from above two countries of having been dumping into Vietnam market, causing considerable damage to domestic MSG manufacturing.

On September 4^th, 2019, TRAV issued official dispatch no. 760/PVTM-P1 on requiring the Requesting Party to supplement the dossier.

On September 23^rd, 2019, Requesting Party fully supplemented the required information.

On October 8^th, 2019, Investigating Body confirmed that Dossier is valid, complete according to regulations of law on trade remedies.

On October 31^st, 2019, Ministry of Industry and Trade promulgated Decision 3267/QD-BCT on conducting an investigation to apply anti dumping measure on some MSG products with HS code 2922.42.20 originating from China and Indonesia.

On November 15^th, 2019, TRAV issued investigation questionnaire for domestic producers and importers to collect information and data for the case.

Investigation results showed that although safeguard measures was imposed absolutely at VND 3,201,039/ton, the quantity of imported goods after the applying the safeguard duty shows signs of dumping in large quantities, from 2.88 million dong/ton to more than 6.3 million dong/ton on goods imported from China and Indonesia, corresponding to the highest dumping margin being over 28%. Such level of dumping illustrates that imported goods is continuing to threaten causing considerable damage to domestic MSG manufacturing. Since 2016,  MSG manufacturing of some countries has been oversupplying and inventory has been increasing dramatically which results in promoting heavily the export to other countries, including Vietnam. This export makes domestic manufacturing find it difficult and pressuring due to dramatic increase of goods under investigation imported into Vietnam for the past time. In addition, Vietnam is the second largest export market of China and the fourth largest export market of Indonesia. Therefore, when the safeguard duty expires, goods from these both countries will be enhanced to export into Vietnam market which threatens causing considerable damage to domestic manufacturing. Besides, MSG product from China and Indonesia also have been imposed anti dumping measures by USA, European Union. China exporters likely seek alternative markets, including Vietnam.

On March 18^th, 2020, Minister of Industry and Trade promulgated Decision No. 881/QD-BCT on applying temporary anti-dumping duty on some MSG products originating from China and Indonesia. Accordingly, MSG products originating from China and Indonesia shall be imposed absolutely in the range from 2,889,245 VND/ton to 6,385,289 VND/ton. Application duration of temporary anti dumping measure shall be 120 (one hundred and twenty) days from the effective date of temporary anti dumping duty (unless extended). Above Decision on temporary anti dumping shall take effect since March 25^th, 2020.

Our internationaltrade and competition lawyers at ANT Lawyers will always follow the development from authorities to provide update to our clients.

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