LEGAL UPDATE – MARCH 2023 – SOME NOTABLE CHANGES IN BANK GUARANTEE UNDER THE CIRCULAR 11/2022/TT-NHNN

Issue March 2023

Tran Cong Quoc
Partner

Nguyen Thuy An
Associate

On 30th September 2022, the State Bank of Vietnam issued the Circular No. 11/2022/TT-NHNN on bank guarantees (hereinafter referred to as the “Circular 11”). The Circular 11 will repeal the Circular 07/2015/TT-NHNN and the Circular 13/2017/TT-NHNN on bank guarantees (hereinafter referred to as the “Circular 07”), and take effect from 1st April 2023. Below are some notable changes of the Circular 11.

1. Electronic guarantees

Pursuant to Article 9 of the Circular 11, in addition to the bank guarantees in writing, credit institutions/foreign bank branches may offer electronic bank guarantees (hereinafter referred to as “electronic guarantees”). Adoption of electronic guarantees will depend on agreement by the credit institutions/foreign bank branches and clients. Those matters related to security of data and information confidentiality in electronic guarantee must comply with, among others, regulations on anti-money laundering, electronic transactions, SBV’s instruction on risk management of electronic transactions. The supplementation of electronic guarantee form under Circular 11 is based on the actual demand of clients, which implement the provisions of the Law on Credit Institutions on electronic banking services. Regulations on electronic transactions in e-banking activities and electronic guarantee are also found in other legal documents, including, among others, Decree 35/2007/ND-CP, Decree 130/2018/ND-CP and Decision 35/2006/QD-NHNN.

In case “know your clients” are made electronically, the value of each issued bank guarantee shall not exceed VND04 billion per individual and VND45 billion per organization, except the following cases:

  • Client identification information is certified by the competent authority or electronically certified by electronic certification service providers in accordance with the law on electronic certification and identification;
  • Request for issuance of an electronic guarantee is submitted via SWIFT system;
  • Client information and guaranteed obligations are verified and certified through the customs e-payment portal or the national bidding system;
  • Clients use digital signatures as prescribed by law when applying for a guarantee or entering into a guarantee agreement with credit institutions/foreign bank branches;
  • The client is a credit institution or a foreign bank branch.

2. Guarantees over future residential property

The Circular 11 clarifies some certain contents regarding guarantees over future residential property as follows:

  • An agreement on guarantees over future residential property is defined by Circular 11 as a contractual agreement between a commercial bank, a developer and other relevant parties (if any) whereby commercial bank agrees to guarantee for obligations of developer against the buyer under the sale, and purchase leasing of future residential property. The guarantee letter will be issued by the bank to buyers after conclusion of the agreement on guarantees over future residential property.

The agreement on guarantee over future residential property is signed before signing contracts on sale or contracts on purchase leasing of future residential property (hereinafter referred to as the “Sale contract” or “Purchase leasing contract”). Upon signing Sale contract or Purchase leasing contract, the developer shall request the commercial bank to issue guarantee letters to buyers.

  • Rights and obligations of the parties

The Circular 11 specifies those rights and obligations of developers, commercial banks and buyers in relation to guarantees over future residential property, which give buyers more protection in case of claiming the guarantee, including, among others:

  • Commercial banks are obliged to issue and deliver guarantee letters to buyers, or developers in accordance with Sale contract or Purchase leasing contract;
  • Upon receipt of guarantee letters from the commercial bank, developers are obliged to deliver the same to buyers;
  • Buyers are entitled to receive the guarantee letters from commercial banks or developers within the effective term of the agreement on guarantees over future residential property and before the estimated hand-over date of future residential property;
  • If the guarantee agreement over future residential property is early terminated, within the business day immediately following termination date, the commercial bank shall so publish on its website and notify this early termination in writing to the housing management authority of the provincial level where the project is located, specifically stating that the commercial bank will no longer issue guarantee letters for the buyer to sign a Sale contract or Purchase leasing contract with the developer after the guarantee agreement over future residential property is terminated. For guarantee letters previously issued to the buyer, the commercial bank shall continue to fulfill its commitment until the guarantee obligation is terminated.

3. The cases where enterprises are not guaranteed for bond payment obligations

Pursuant to Article 11.2 of the Circular 11, the credit institutions/foreign bank branches are not allowed to grant the bank guarantees with respect to the bond issued for debt restructure, capital contribution, shares acquisition or operational capital increase, while under Circular 07 such limitation was only applied for two cases of debt restructure and bond issued by subsidiaries or affiliates of other credit institutions.

4. Foreign language in bank guarantees

Previously, pursuant to the Circular 07, bank guarantee was allowed to be in a foreign language only if the guaranteed transaction is a civil relation involved a foreign element as defined in the Civil Code. The Circular 11 now supplements two additional cases where it is allowed to use a foreign language: (i) guaranteed obligations arising from projects financed by international financial institutions, and (ii) guaranteed obligations arising from participating in international bidding packages.

5. Transitional regulation

The parties continue to implement the signed bank guarantee agreement, bank guarantee commitment which took effect prior to the effective date of the Circular 11 until termination of the guarantee obligations thereof. The amendment and supplementation of the above-mentioned signed documents shall comply with the regulations of the Circular 11.

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LEGAL UPDATE – JANUARY 2023 – DECREE NO.99/2022/ND-CP DATED NOVEMBER 30, 2022 ISSUED BY THE GOVERNMENT REGARDING THE REGISTRATION OF SECURITY INTERESTS, SUPERSEDES DECREE NO. 102/2017/ND-CP DATED SEPTEMBER 01, 2017.

Issue January 2023

Nguyen Bich Van
Partner

Ha Tuan Viet
Associate

Security interests always play a crucial role in stabilizing civil, business, and commercial relations, preventing conflicts arising, and increasing respect for the law among the parties involved in the transaction. Simultaneously, security interests are also the method for the protection of legitimate rights and interests of such involved transaction’s parties in the event that the obligator fails to perform or improperly performs its obligations when due.

The registration of a secured transaction “comes out into society” due to the need for disclosure of the secured transactions, and protection of legitimate rights and interests of the subjects involved in the transaction and related parties. In recent years, facing the demands of actual practices, the provisions of registration of secured transactions have been increasingly improved, creating a solid basis for organizations and individuals to have favorable conditions in accessing credit sources, ensuring legal safety in civil transactions, commercial business.

As of November 30, 2022, the Government promulgated Decree 99/2022/ND-CP regarding the registration of security interests to supersede Decree No. 102/2017/ND-CP dated September 01, 2017 in order to significantly contribute to the completion and unification of the law in the field of registration of security interests.

Decree 99/2022/ND-CP on registration of security interests officially takes effect on January 15, 2023 and contains the following noteworthy points:

 1. Scope of regulation

Comparing Decree 99/2022/ND-CP to Decree 102/2017/ND-CP, there is an expansion in the regulation’s scope regarding (i) the registration of security interests, (ii) the provision of information on security interests centrally registered at the Vietnam Securities Depository and Clearing Corporation (“VSDCC”).

Accordingly, in relation to the unprovided matters in the law of securities, the registration shall comply with the provisions relating to the registration of security interests in immovable property, other than aircraft and seagoing ships as prescribed in Decree 99/2022/ND-CP.

2. Security interests subject to the registration procedure

Decree 99/2022/ND-CP stipulates that four circumstances required the registration of security interests in assets, including (i) registration of mortgages, pledges of assets, retention of ownership rights in accordance with the Civil Code and other relevant laws; (ii) registration according to the agreement between the securing party and the secured party or at the request of the secured party, except for property liens; (iii) registration of notification of collateral disposal in case an asset is utilized to secure the execution of several obligations where multiple parties jointly receive the security or in case the securing party and the secured party have agreements;  (iv) registration of changes in registered contents; deregistration of registered contents for the cases specified at the aforementioned points.

Compared to the contents of Decree 102/2017/ND-CP, the newly updated regulations have demonstrated the discrepancy in the expansion of institutions and security interests, in which the entities involved in the transaction can decide to register the security interests. Correspondingly, Decree 102/2017/ND-CP previously stipulated a quite rigid classification of security interests into two groups, including (i) groups of security interests required to be registered (mortgage of land use rights, mortgage of land-attached assets, mortgage of aircraft, seagoing ships) and (ii) groups of registered security interests upon request (mortgage of movable assets, mortgage of land-attached assets formed in the future, reservation of ownership rights in case of purchase and sale of land-attached assets, land-attached assets formed in the future; purchase and sale of aircraft, seagoing ships; purchase and sale of other movable assets with reservation of ownership rights).

3. Principles of registration and provision of information

For the purpose of ensuring uniformity and consistency in the registration, provision and exchange of information on security interests, creating a legal framework conducive to the registration and provision of information by competent State authorities in order to register and secure legitimate rights and interests for entities requesting registration of security interests, Decree 99/2022/ND-CP stipulates the principle that information on security interests must be made available to the public, provided upon request, information exchanged in accordance with law; to comply with procedures, competence, duration, tasks, powers and responsibilities, not to give rise to procedures other than those prescribed by the Decree. And notably, in case of violation of any above-mentioned principles, the Registry must be responsible before the law.

In addition, the Registry is not responsible for the name of the security contract and the contents of the agreement of the parties in the security contract; the parties must be honesty in declaring, providing and exchanging information; being responsible before the law for the accuracy of the information declared, provided and exchanged.

4. Validity of the registration

For the purpose of ensuring transparency about the effectiveness and validity of the registration, simultaneously with separating the registration of security interests and other registration related to assets used to secure the performance of obligations (hereinafter referred to as “other registration”), Decree 99/2022/ND-CP has set out new regulations on the validity of registration as follows:

– Specifying in detail and clarifying the time of arising and termination of the validity of registration of security interests and other registrations;

– The validity of the registration of security interest is the ground for determining the period of countervailing effect of security interest to third parties in accordance with the law on security for the performance of obligations;

– The validity of other registration is only for notifying, publicizing agreements and commitments in civil transactions rather than the basis for determining the validity of civil transactions, the validity of countervailing effect against third parties;

– Separating the effect of deregistration in case the security interest is terminated as required or prescribed by law from the cancellation of registration due to the security contract being declared invalid according to the effective judgment or decision of the court, arbitration or the security interest is registered at an incompetent Registry.

5. Competence of the Registry

In order to ensure conformity with the relevant provisions of law, maintain transparency and convenience of a state registration and management authority for the registration of security interests, Decree 99/2022/ND-CP has provided the registration authority of the VSDCC for the registration of securities that have been registered centrally in accordance with the law on securities. Concurrently, in addition to stipulating the general competence, tasks and powers of the Registry, Decree 99/2022/ND-CP also provides the cases of registration falling under the exclusive competence of each Registry, showing the legal mechanism for information exchange between the Registry and other competent agencies and persons in accordance with the law.

6. Dossiers, procedures for registration and provision of information

Regarding the registration dossier, information provision

In order to ensure transparency and consistency of registration dossiers and prevent inappropriate requirements in registration practices, Decree 99/2022/ND-CP specifies in detail the following contents:

– The information must be on the Registration Request Form; Forms are documents and papers belonging to the dossier component; signatures and seals in the registration; languages used in the registration; the description of the information about security assets in some specific cases, for example, movable assets other than aircraft, seagoing ships, securities which have been centrally registered;

– The composition of registration dossiers for registration of security interests in housing construction investment projects; investment projects on construction of works other than houses; future-formed assets; assets being annual trees or temporary works; assets being agricultural investment projects, forest development projects, projects on planting perennial trees or annual trees, other projects using land, transferring the mortgage registration of property rights arising from contracts for purchase and sale of land-attached assets to the mortgage registration of land-attached assets; other registration dossiers;

– Particularizing the composition of registration dossiers for changes in cases of purchase and sale of debt collection rights, receivables, other payment claims; dossiers for deregistration in cases where economic organizations other than credit institutions mortgage land use rights or land-attached assets of individuals or households using land become foreign-invested enterprises; persons requesting deregistration are not security recipients, such as securiting parties, civil judgment enforcement agencies, buyers of security assets to be handled, recipients of transfer of ownership of security assets.

Regarding the registration procedure

Decree 99/2022/ND-CP controls the registration procedure by defining general and particular procedures for each kind of collateral, in particular:

– For the purpose of ensuring full coverage of registration cases, and the convenience for application and determination of the authority of the Registry, instead of defining the circumstances of registration as previously, the Decree outlines the cases of registration of security interests in accordance with each kind of asset. In addition, the Decree also specifies other cases of registration as well as the competence to carry out such registrations.

– In order to ensure transparency, limit arbitrariness in refusing registration and prevent risks and occurred additional costs for the requester for registration, the Decree stipulates that the Registry may only be allowed to refuse registration when there are clear-cut grounds specified in the Decree. Furthermore, the Decree has particularized several cases where the Land Registration Office and the Branch are required to carry out the registration procedure when the information agreed upon by the parties describing the collateral is inconsistent with the information on the Certificate or archived at the competent authority.

– Moreover, the Registry is not allowed to refuse to register for the following reasons: the name of the security contract, the content of the agreement on the value of the collateral, the secured obligation, the guarantee of the performance of obligations of others, the scope of the secured obligation, the duration of performance of the secured obligation.

–  For the purpose of ensuring the appropriateness of the competence to request registration in accordance with the law on guarantee of performance of obligations and related laws, the Decree has provided the regulation regarding the registration procedure by the requester in the way of separating the person who has the right to request the first registration with the person who has the right to request in the registration of change and deletion of registration; specified information about the guarantor, the secured party, the representative in the registration; the rights and obligations of the requester for registration.

– In order to create favorable conditions for individuals and businesses, as well as ensure the feasibility in resolving registration dossiers, providing information, in parallel with continuing to regulate the submission of registration dossiers through the electronic environment and the submission of registration dossiers in paper form, the Decree specifically stipulates the process of receiving and inspecting the registry’s registration dossier components, which includes the following main contents:

  • Separation of the time limit for settlement of dossiers when refusing registration with the time limit for settlement of dossiers for making registration;
  • Provisions on cases where the registry fails to register due to force majeure events in the receipt of dossiers, settlement of dossiers and time limit for settlement of dossiers in such case;
  • Regulations on notifying the requester for the guidance of the completion and supplementation of dossier components; the sending of papers and documents to competent agencies for verification when detecting signs of forged documents and time limit for settlement of dossiers in such case;
  • Regulations on the method of returning registration results in accordance with the method of submission of registration dossiers and the legal value of registration results;
  • Regulations on mechanisms and procedures for registration in the electronic environment.

– In order to ensure the accuracy of the information on registered security interests and to limit unnecessary procedures for registration of changes, the Decree separates cases of mandatory registration of changes from cases of registration of changes upon request; deletes the registration of contents registered for changes in cases of withdrawal of collateral; clarifies the responsibilities of the requester for the failure of registration for the cases where the registration procedure for changing is required.

– For the purpose of ensuring uniformity and consistency with the provisions of the law on ensuring the performance of obligations, fully covering situations arising in practice, and protecting the legitimate rights and interests of property owners and other related subjects, the Decree specifies the following contents:

  • Cases of deregistration to conform to reality and in accordance with changes in the law on security for performance of obligations;
  • Recording the deregistration of the withdrawn property in case of the registration changes due to the reduction of the collateral; in case of deregistration of part of the content, the remaining shall not be changed or terminated;
  • Regulations on the responsibilities of the requester for registration in case of failure to delete the registration when there are grounds for the registration to be deleted;
  • Supplementing the provisions on deregistration for other cases of registration.

In conclusion

During the time of practical application, Decree 102/2017/ND-CP has revealed the limitations expressed in the ineffectiveness and validity of registration; the refusal of registration; information about the securing party and the secured party; information on the registration request form; language, signature and seal in the registration; the return of registration results; registration of changes and deregistration; separation between deregistration and deregistration due to invalidity of the security contract; the mechanism to correct information; method of payment of registration fees; submission of registration dossiers on the electronic environment; information exchange between competent state agencies.

With the updated provisions of Decree 99/2022/ND-CP, the processes of registration of security interests have been renovated, perfected and become effective legal instruments, demonstrating the safety and transparency of assets and transactions. Thereby, individuals and businesses shall have a solid legal basis to access low-cost capital sources for the development of production and business. Additionally, the financing entities are more confident when the market’s supply of capital has a protective legal mechanism to implement in a safe and stable manner. Moreover, the new provisions of Decree 99/2022/ND-CP also contribute to the competent agencies and organizations to obtain accurate and convenient legal evidence on security interests in the course of state management or in case of having to settle cases in accordance with the law.

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LEGAL UPDATE – NOVEMBER 2022 – DECREE No. 65/2022/ND-CP SEPTEMBER 16, 2022 AMENDMENTS TO GOVERNMENT’S DECREE NO. 153/2020/ND-CP DATED DECEMBER 31, 2020 PRESCRIBING PRIVATE PLACEMENT AND TRADING OF PRIVATELY PLACED CORPORATE BONDS IN DOMESTIC MARKET AND OFFERING OF CORPORATE BONDS IN INTERNATIONAL MARKET

Issue November 2022

Le Hong Phong
Partner

Le Thi Tuyet Mai 
Associate

Decree 153/2020/ND-CP prescribing private placement and trading of privately placed corporate bonds in domestic market and offering of corporate bonds in international market, issued on December 31, 2020, effective into force on January 1, 2021. After 18 months implemented of the decree, before signs of “hot” growth accompanied by many potential risks, state management agencies have issued consecutive warnings to issuers and investors, especially individual investors. However, the reality shows that there is still a deliberate violation to offer secondary sale to individual investors to buy individual corporate bonds or contribute capital through investment cooperation contracts with securities investors under Civil Code. The law observance of the bond issuer is not strict and in compliance with the legal framework, many serious violations have occurred.

To the corporate bond market, the Prime Minister and the Minister of Finance have issued guiding documents on the management, especially stepping up the inspection of issuance, investment, and service providing services in the corporate bond market [1].

In the face of the fast-growing corporate bond market and many risks, the Government has issued a new legal framework that is safe for investors, promotes a transparent market and enhances the supervisory responsibility of investors in state agencies.

The most notable aspects of the New Decree 65/2022/ND-CP amendments to Government’s Decree NO. 153/2020/ND-CP dated December 31, 2020 prescribing private placement and trading of privately placed corporate bonds in domestic market and offering of corporate bonds in international market.

1. Purpose of issuing bonds

Decree 65/2022/ND-CP amending regulations on bond issuance purposes in order to strengthen the responsibilities and obligations of issuers in using proceeds from bond issuance for the right purposes.

According to, bonds are issued for executing investment projects/programs, restructuring the issuer’s debts or serving other purposes as prescribed in specialized laws. The issuer is required to clearly indicate purposes of the bond issue in its bond issuance plan, and disclose the same to investors to serve their subscription for the bond issue. The funds raised from a bond issue shall be used for the purposes which have been defined in the issuer’s bond issuance plan and notified to investors[2].

Decree 65/2022 allows issuers to issue corporate bonds for the purpose of debt restructuring. This is one of the key points in the direction of easing to help businesses with the purpose of debt restructuring (by regulations) still have access to the corporate bond issuance channel.

 2. Increase the par value of domestic bonds to 100 million

The New Decree has increased the par value of bonds from VND 100,000 (about US$4.20) (and a multiple of VND 100,000 or about US$4.20) to VND 100 million (about US$4,200) (and a multiple of VND 100 million or about US$4,200). This increase also limits the scope of eligible investors and seems designed to exclude small retail investors. Specifically, Decree 65/2022/ND-CP states: “Face value of a bond offered in the domestic market is VND 100.000.000 (one hundred million) or a multiple of VND 100.000.000 (one hundred million)[3].

3. Bond buyers

Decree 65/2022/ND-CP also stipulates specifically about Bond buyers. Accordingly, Buyers of non-convertible bonds without warrant are professional investors as defined in the Law on securities.

An individual that is identified as a professional investor as prescribed in Point d Clause 1 Article 11 of the Law on Securities shall be eligible to buy privately placed bonds if he/she holds a quantity of listed or registered securities, excluding securities borrowed to conduct margin transactions and those of REPO* transactions, of which the daily average price determined in a minimum period of 180 consecutive days preceding the date on which he/she is identified as a professional investor shall not be lower than VND 02 billion. The certification of a professional investor status as prescribed in this Point shall be valid for 03 months from the date of certification.

The New Decree guides on requirements for eligible investors, as well as documentation as evidence for such eligibility, accordingly confirms the responsibilities of both issuers and securities companies in the determination and certification of investor eligibility with respect to participation in private bond issuances.

Decree 65/2022/ND-CP adds responsibilities of bond buyers “Conduct bond transactions according to the provisions of Article 16 Bond trading of Decree 65/2022/ND-CP; not sell bonds to or make joint investment in bonds with investors who are not professional investors in any forms. Capital mobilization and purchase/investment in corporate bonds by credit institutions, FBBs and fund management companies shall comply with specialized laws[4].

Buyers of convertible bonds and warrant-linked bonds are professional investors and strategic investors of which the number of strategic investors of an issue is limited to 100[5].

4. Supplementing the principle of private corporate bond issuance

Bond issuance conditions comply with the Law on Securities and the Law on Enterprises. The Decree supplements regulations on bond offering documents including: (i) credit rating results according to cases and implementation schedule as prescribed for bond offering to the public, from January 1st, 2023; (ii) the contract signed with the representative of the bondholder in case of offering to individual professional securities investors and (iii) the commercial bank’s confirmation on the opening of an account to receive money for purchase bonds.

Upon completion of the offering, bonds must be (i) registered and deposited with the Vietnam Securities Depository (VSD) and (ii) registered for trading with the Stock Exchange. Previously, there was no particular guidance on these requirements, private issued bonds could be registered with a depository member of the VSD. These new provisions should increase secondary trading and create a more transparent secondary market.

The bond exchange will need to be set up within nine months after issuance of Decree 65/2022. The VSD’s bond registration and depository and the bond trading system of the Stock Exchange are targeted to come into operation in June 2023. Pending the setting up of the bond exchange, privately-issued bonds could continue to be traded under Decree 153/2020.

Decree 65/2022/ND-CP provides: With regard to bonds issued in the domestic market, their terms and conditions as prescribed in Article 6 of this Decree may be changed if the change is approved by [6]:

a) The issuer’s competent authority; and

b) A number of bondholders that represents at least 65% of total outstanding bonds of the same type

Information on the change of conditions and terms of bonds must be unusually disclosed by the issuing enterprise [7].

5. Representative of bondholders

The Decree adds regulations on the representative of bondholders to strengthen the supervision of the purpose of using the bond capital of the issuer as well as strengthen the supervision of the implementation of other commitments of the issuer.

The representative of bondholders strengthens the supervision of the purpose of using the bond capital of the issuer, as well as strengthens the supervision of the implementation of other commitments of the issuer.

Where bonds are offered to professional investors that are individuals, the bond offering dossier must include the contract signed with the representative of bondholders as prescribed in Clause 7 Article 14 of this Decree and the Law on securities [8].

In addition, the representative of bondholders shall report to the State Securities Commission and the Stock Exchange on a quarterly and annual basis and report in case the issuer is found to violations affect the interests of bondholders [9].

6. Modify time of bonds offered in each wave

Decree 153/2020/ND-CP stipulates that bonds offered in each wave must be distributed within 90 days from the date of disclosure of information before offering. Total duration for offering of bonds in multiple waves shall not exceed 12 months from the issue date of the first offering wave

According to Decree 65/2022/ND-CP, Bonds offered in each offering wave must be distributed within 30 days from the date of disclosure of information before offering. Total duration for a multiple-wave offering shall not exceed 06 months from the issue date of the first offering wave.

A bond issuer must sign a contract with a bond issuance consultant which is securities company in all cases. Before Decree 65/2022, a bond issuer being a securities company is exempted from engaging a bond issuance consultant.

A private bond issuer must obtain a credit rating from a rating agency (1) if the total par value of issued bonds of such issuer in each 12-month period prior to the issuance date is greater than VND500 billion and 50% equity recorded on its latest financial statements; or (2) the total par value of outstanding bonds of such issuer as at the time of registration for issuance is greater than 100% equity recorded on its latest financial statement. Before Decree 65/2022, this requirement only applies to public issuance of corporate bonds.

Decree 65/2022 now requires the bond issuance agent (or the underwriter) to certify that the bond issuer has received the bond proceeds into its account.

7. Enhanced Responsibilities of bidding, underwriting and brokerage services:

The New Decree provides that (i) only securities companies are permitted to provide services of auction, guarantee and agency, and (ii) commercial banks and branches of foreign banks are permitted to provide agency services if approved by the State Bank of Vietnam and licensed to engage in depository service by the State Securities Commission[10]. These “intermediaries” must not be related parties of the issuer and enter into a service contract with the relevant issuer, in which rights and responsibilities of each party must be specified.

The New Decree also imposes additional responsibilities of these intermediaries to provide true and accurate information on the bond issuance to the investors and ensure distribution of bonds only to eligible investors. This is a clear step towards promoting more responsibility on the part of these intermediaries.

8. Cases in which bonds are redeemed before maturity[11]:

This is a completely new regulation compared to Decree 153/2020/ND-CP, whereby Decree 65/2022/ND-CP requires the responsibility of the issuer. Additional Decree stipulates that Bonds must be compulsorily redeemed before maturity when the issuer fails to comply with the bond issuance plan (including the capital use plan), and that violation cannot be rectified or violate the law; Before and after the bond issuance, there must be a disclosure of information on solvency, an audit report on the financial position and an audit of the use of capital for the bond issuance purpose.

Cases in which bonds are redeemed before maturity:

a) The redemption is made under an agreement between the issuer and bondholder.

b) Bonds shall be compulsorily redeemed at the request of investors in the following cases:

  • The issuer commits violations against regulations of law on offering and trading of corporate bonds according to decision issued by a competent authority, and such violations cannot be rectified or a number of bondholders that represents at least 65% of total outstanding bonds of the same type refuses to give approval for remedial measures for such violations.
  • The issuer fails to comply with the bond issuance plan, and that violation cannot be rectified or a number of bondholders that represents at least 65% of total outstanding bonds of the same type refuses to give approval for remedial measures for that violation.
  • Other cases defined in the bond issuance plan which is prepared according to Article 13 of Decree 65/2022/ND-CP (if any).

Note: The case of compulsory redemption at the request of the investor does not apply to the case where the bonds are withdrawn under the decision of the competent authority [12].

Recognize

With the bond issuance of new regulations on the issuance and trading of privately placed corporate bonds, it will promote the formation of professional long-term investment institutions in a transparent and sustainable market. Strengthen coordination between Ministries and sectors in operating, managing and supervising the stock market, bond market, money market, bank credit and proactively informing, propagating and orienting the market. Establish an organized trading market and complete regulations on management and supervision mechanisms.

These represent a key step in ensuring transparency and investor protection in the bond market which industry experts have considered to be lacking.

Market participants, in addition to learning about corporate bonds, need to comply with the law before and during the transaction. Bond issuer must ensure the truthfulness of bond offering documents, use capital for the right purposes, and be responsible for explaining to investors information related to the issuance plan and legal risks management, investment risks, capital use risks, rights, interests and liabilities of the parties when issuing and investing corporate bonds.

*          Repo is a generic name for both repurchase transactions and buy/sell-backs. Repos are sometimes known as ‘sale-and-repurchase agreements’ or just ‘repurchase agreements’. In some markets, the name ‘repo’ can be taken to imply repurchase transactions only and not buy/sell-backs. Repurchase transactions are also known as ‘classic repo’. Under EU regulation — along with securities lending, commodities lending and margin lending — repurchase transactions and buy/sell-backs are types of ‘securities financing transaction’ (SFT)

[1]                 Directive No. 01/CT-BTC dated April 25, 2022 of the Ministry of Finance

[2]                 Clause 2 Article 5 of Decree 65/2022/ND-CP

[3]                 Point a Clause 4 Article 6 of Decree 65/2022/ND-CP

[4]                 Point dd Clause 2 Article 8 of Decree 65/2022/ND-CP

[5]                 Point b Clause 1 Article 8 of Decree 65/2022/ND-CP

[6]                 Clause 4 Article 5 of Decree 65/2022/ND-CP

[7]                 Point c clause 1 Article 22 of the Decree 65/2022/ND-CP

[8]                 Point dd clause 2 Article 12 of the Decree 65/2022/ND-CP

[9]                 Clause 2 Article 33 of Decree 65/2022/ND-CP

[10]               Clause 4 Article 14 of Decree 65/2022/ND-CP

[11]                Clause 3 Article 7 of Decree 65/2022/ND-CP

[12]                Clause 4 Article 7 of Decree 65/2022/ND-CP

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LEGAL UPDATE – OCTOBER 2022 – Decree 53/2022: Some notable points in implementation of Law on Cybersecurity

Issue October 2022

Nguyen Trong Nghia
Partner

Le Anh Kien 
Associate

On 12 June 2018, the National Assembly passed the Law on Cybersecurity and took effect from 01 January 2019, however, some provisions were not clearly specified and there were many obstacles in practical implementation. Therefore, recently on 15 August 2022, the Government issued the Decree No. 53/2022/ND-CP (“Decree 53”) in order to detail a number of articles of the Law on Cybersecurity.

Decree 53 takes effect from 01 October 2022 and has a number of noted key points as follows:

1. Data localization     

Data localization is considered as the most remarkable point of Decree 53. Accordingly, the subjects of data localization are foreign enterprises that conduct business in Vietnam in one of the following fields: Telecommunications services; services of data storage and sharing in cyberspace; supply of national or international domain names to service users in Vietnam; ecommerce; online payment services; payment intermediary; services of transport connectivity via cyberspace; social networks and social media; online video games; and services of provision, management, or operation of other information in cyberspace in the forms of messages, phone calls, video calls, emails or online chat, are obliged to comply with the data localization requirements and set up a branch or a representative office in Vietnam in case the service(s) provided by foreign enterprises used to commit a violation of the Law on Cybersecurity, which had been notified and requested to coordinate, prevent, investigate and handle in writing by the Department of Cybersecurity and High-tech Crime Prevention under the Ministry of Public Security but the foreign enterprises fail to comply, incompletely comply with, or prevent, obstruct, disable, or invalidate cybersecurity protection measures implemented by the cybersecurity protection specialized force. The time to set up a branch or representative office in Vietnam starts from the foreign enterprise receives the request to set up a branch or representative office in Vietnam until the foreign enterprise no longer operates in Vietnam or regulated services are no longer available in Vietnam.

With regard to the domestic enterprises, Clause 2 Article 26 of Decree 53 stipulates: “Domestic enterprises store data specified in Clause 1 of this Article in Vietnam”. This provision can be understood that all domestic enterprises are obliged to localize all types of data according to the law. However, there may be another viewpoint that only domestic enterprises “provide services on telecommunications networks and the Internet, value-added services in cyberspace in Vietnam have activities on collecting, exploiting, analyzing and processing data about personal information, data on the relationship of service users, data created by service users in Vietnam” is required to localize data in Vietnam (quoted from Clause 3, Article 26 of the Law on Cybersecurity 2018).

2. Data subject to data localization

According to Decree 53, the types of data that enterprises must localize in Vietnam include (i) Data regarding personal information of service users in Vietnam; (ii) Data generated by service users in Vietnam: user service account name, time of service use, credit card information, email address, network address (IP) of most recent login, logout, registered phone number for the account or data and (iii) Data about the relationship of service users in Vietnam: friends and groups with which the user connects or interacts.

3. Form and time period of data localization

The form of data localization in Vietnam is decided by the enterprises.

About the time period of data localization, Decree 53 stipulates: “The data localization period specified in Article 26 of this Decree starts from the time the enterprise receives the data localization request until the end of the request. Minimum localization period is 24 months.”

This regulation does not specify whether it is applicable to the domestic enterprises or foreign enterprises, however, it can be understood that this regulation only applies to foreign enterprises because such enterprises are obliged to localize data at the request of a competent state authority. For domestic enterprises, data localization can be understood that it must be carried out throughout the operation of such enterprises, from the date Decree 53 takes effect.

4. Other provisions

Other than the regulations of data localization, Decree 53 also contains other critical provisions related to the establishment of cybersecurity criteria for important information system for national security; cybersecurity conditions for important information systems for national security; order and procedures for applying cybersecurity protection measures; cybersecurity protection activities in State authorities, central and local political organizations./.

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LEGAL UPDATE – SEPTEMBER 2022 – NEW REGULATIONS ON E-GAMBLING FOR FOREIGNER BUSINESS

Issue September 2022

Trinh Hoang Lien
Partner

Phan T.Lan Phuong 
Legal Assistant

There are some changes in the regulations on electronic gambling for foreigners business after the issuance of the Decree No. 121/2021/ND-CP dated December 27, 2021 by the Government regulating the business of prize-winning electronic games for foreigners in the territory of the Socialist Republic of Vietnam (“Decree No. 121”) replacing Decree No. 86/2013/ND-CP dated 29th July, 2013, Decree 175/2016/ND-CP dated 15th February, 2017 and Decree 151/2018/ND-CP dated 7th November, 2018 (hereinafter collectively referred to as “Decree 86”). Decree 121 takes effect from 12th February, 2022 and is detailed by Circular 39/2022/TT-BTC (“Circular 39”) dated 24th June, 2022 and Circular 09/2022/TT-NHNN (“Circular 09”) dated 12th July, 2022. This article summarizes notable changes that have significant implications for this business.

1. Persons eligible for participating in e-gambling

Regulations on people eligible for participating in e-gambling under new regulations are stricter than those in the Decree 86, specifically, foreigners and overseas Vietnamese, who legally enter Vietnam with valid passports or international travel documents issued by foreign competent authorities and visa is in validity; have full civil act capacity as prescribed by Vietnamese law and willingly comply with Game Rules as well as other provisions under Decree 121.

Accordingly, Decree 121 does not allow foreigners and overseas Vietnamese illegally entering Vietnam or legally entering Vietnam but not leaving the country before visa expired   according to regulations to participate in e-gambling.

2. Business conditions and licenses

Basically, an enterprise operating this business must have two sublicenses, a certificate of eligibility for prize-winning electronic games business issued by the Ministry of Finance and a license for collection and payment in foreign currency and other foreign exchange operations issued by the State Bank before commencing its operation.

Conditions that enterprises shall fully satisfy for being issued the certificate of eligibility for prize-winning electronic games business under the Decree 121 are harder. Remaining basic regulations as those in Decree 86, such as having tourist accommodation establishments of five-star class; having an area for arranging Business Location satisfying the conditions under regulations; having managers or operators for Business Location who satisfy the conditions and standards (graduated from university and having experience in managing and operating prize-winning electronic game business for more than 3 years), having a business plan, Decree 121 sets higher conditions in respect of the followings:

  • Increasing the minimum charter capital from VND 200 billion to VND 500 billion and requiring that the profit of fiscal year preceding the year of application for the business eligibility certificate is gain;
  • Increasing the storage time of electronic equipment and camera systems for constant monitoring and surveillance of all activities in the Business Location (24/24h) to at least 180 days from the date of recording and ensuring the clear image of all footage at the following locations: the entrance and exit area of the Business Location; the area where slot machines are located; cashier area, treasury for counting cash, conventional currency and storing equipment for cash and conventional currency. The previous regulations only required minimum storage period of 30 days for such areas and 15 days for others.
  • The slot machines purchased or imported for operation shall be brand new, adhering to the technical specifications announced by manufacturers, and certified by an independent inspection organization from a state member of G7.
  • Strictly regulating the number of slot machines to be licensed. The maximum rate of machines is still 1 machine per 5 accommodation rooms as per the previous regulations, but only counted on the accommodation rooms that have been put into operation.

3. Management of conventional currency

The mechanism for issuing and “registering” conventional currency with the Department of Finance and the tax authority in respect of its model, quantity, and type before putting it into business and re-registering this information upon changes has been replaced by a mechanism of “notifying” to the Department of Finance and the tax authority as the basis for issuing invoices to calculate the revenue of the enterprise. In addition, Decree 121 also annuls the provision on basic information that the conventional currency of enterprise must contain, subsequently, the conventional currency only needs to have its mark and signs for identification.

Regarding this new regulation, Decree 121 has simplified the conditions for the form and quality of the conventional currency as well as the procedures to apply this currency in operation. Furthermore, the enterprises also ease the burden of obtaining licenses or approvals issued by competent authorities on using conventional currency.

The payment for conventional currency under the provisions of Circular 09 remain unchanged in comparison with previous regulations. Players can pay by cash, transference from overseas accounts or from their foreign currency payment accounts opened at permitted banks in Vietnam to the operator’s specialized foreign currency accounts, or by credit card. These regulations seem very limited in consideration of the emerging of numerous non-cash payment methods currently.

4. Loosen deductible expenses

Regulations on accounting expenses for such business are loosen. Specifically, the cap of hiring management fees, which was previously limited to 4% of revenue, is no longer applied.

Decree 121 and its guiding regulations shall tighten state management on such conditional business on the one hand and create a more proper environment for businesses after satisfying all regulated conditions.

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LEGAL UPDATE – SEPTEMBER 2022 – Decree 25/2022: New regulations on postal service business in Vietnam

Issue September 2022

Ha Hai
Partner

Phan Minh 
Associate

Since the Government issued Decree No. 47/2011/ND-CP dated June 17, 2011 detailing the implementation of a number of provisions of the Postal Law (“Decree 47”), the Postal service industry in Vietnam has experienced strong growth. The postal service revenue increased from approximately VND 4,135 billion in 2010 to VND 36,950 billion in 2020, contributing about 0.8 per cent to the national GDP. However, after nearly 10 years of implementation, some contents of Decree 47 have revealed to be inconsistent with reality and out of date with the modern technological development trends. To address these issues and limitations, the Government issued Decree No. 25/2022/ND-CP on April 12, 2022, amending and supplementing a number of articles of Decree 47 (“Decree 25”). On June 1, 2022, Decree 25 came into force. The followings are some salient points of Decree 25:

1. Abolishing requirements on appraisal of investment projects

Decree 47 previously stipulates that “Foreign-invested projects with a capital of less than 15 billion VND must be appraised but not required to submit to the Prime Minister for decision on investment policies” and “Foreign-invested project with a capital of 15 billion Vietnam dong or more must be appraised before submitting to the Prime Minister for decision on investment policies”. This regulation, however, is currently incompatible with the Investment Law 2020 and its guiding documents. On the other hand, this regulation also discriminates between domestic investors and foreign investors when they engage in postal services business in Vietnam. Therefore, Decree 25 abolished this provision.

2. Abolishing regulations on financial conditions of postal enterprise

Decree 25 officially abolishes the requirement that enterprises must have a minimum capital of 02 billion VND in case of providing intra – and inter – provincial postal services and 05 billion VND in case of providing international postal services due to the ineffectiveness of this regulation in terms of state management and the barriers on market entry.

3. Supplementing regulations on notification and publication of postal service charges

The notification of postal service charges is not specified in Decree 47 but specified in Article 5 of Circular 02/2012/TT-BTTTT dated March 15, 2012 of the Ministry of Information and Communications providing detailed regulations on the supply and use of postal services. Under this regulation, enterprises must notify the postal licensing agency of any changes to the applicable postal service charges and any newly arising postal service charges within 30 days from the effective date of the new postage rates.

Decree 25 has upgraded and accomplished regulations on notification of postal service charges from Circular 02/2012/TT-BTTTT, in which the time limit for enterprises to notify changes of postal charges or apply newly arising postal charges is reduced to 05 working days from the effective date of the new postal charges. Notifications can be made through the online information system. The postal licensing agency shall be entitled to use the postage rate information announced by companies for the purpose of analyzing, synthesizing, forecasting market price fluctuations and building a database and shall take responsibility for supervising, examining and inspecting the content of notices of postal service charges in accordance with law.

In addition to the aforementioned notification requirements, the enterprise is also obliged to publicize the postal service charges since it commences offering the service in one or several forms, such as posting at the service points, notifying in writing, publishing on the website, or in other forms to facilitate the observation and recognition of all entities. The postal service charges publicized by the companies must be consistent with those that are announced to the competent postal state agencies.

4. Abolishing the requirement to analyze the feasibility and socio-economic benefits in the application for a postal license

Previously, Decree 47 required enterprises applying for a postal license to provide analysis on the feasibility and socio-economic benefits of the business plan included in the application dossier through the indicators of output, revenue, cost, number of employees, tax payable to the state budget, rate of return on investment in the next 3 years from the year of application for a postal license. However, through the practice of appraising applications, the Ministry of Information and Communications found that this requirement contributes little in proving the feasibility of the business plan, causing difficulties and costly damage for enterprises as well as interfering deeply in production and business activities of enterprises. Therefore, Decree 25 has been abolished this regulation to facilitate enterprises in participating in investment and trading in postal services.

5. Legal validity of the electronic document certifying the acceptance of a postal articles

In the context that technology postal services becoming more and more popular in the market, Decree 25 for the first time has added regulations on recognition of the legal value of electronic documents certifying the acceptance of postal articles between postal enterprises and the senders which shall have the same legal validity as a written contract between the parties.

6. Postal licensing documents must be submitted online

Decree 25 requires that the application for a postal license and the written confirmation of postal activities notice must be submitted through the online public service system instead of a hard copy submitted in person or by post to the postal authority as previously. The quantity of the application dossier to be submitted is also reduced from 03 sets (01 set of original and 02 sets of copies) to 01 set. Those revised regulations are made in line with the context that state agencies are strongly applying information technology in providing online and connective public services and in sync with the current administrative procedures improvement in all areas.

Request to amend or supplement the dossier or refusal of the dossier by competent postal state agency shall be made in writing through the online public service system. The results of handling procedures for granting postal licenses, written confirmations of notifications of postal activities are delivered directly or via the public postal service.

7. Supplementing regulations on promotion in the provision of postal services

Decree 25 stipulates that the maximum postal charge discount must not exceed 50% of the most recent postal charge that has made public. This is a brand new regulation of Decree 25. This regulation is intended to avoid the situation where enterprises take advantage of the provisions of the general law on promotion to carry out prolonged “promotions and discounts” for large customer groups, leading to unfair competition with other postal enterprises.

8. Amending and supplementing the changes to be notified

According to Decree 25, enterprises obtained a postal license and/or a written confirmation of postal activities notice must notify on either of the following changes:

  • Legal representative
  • Phone number of legal representative;
  • Charter capital of the enterprise
  • Postal service charges;
  • Postal service quality indexes;
  • Sample contract for the supply and use of postal services;

Internal regulations on complaints and compensation for damage related to postal services provided by enterprises

Accordingly, Decree 25 stipulated more clearly the changes that enterprises granted with written confirmation of postal activities notice must notify to the licensing authority. In addition, compared with the previous regulations, Decree 25 has removed the requirement to notify when there is a change in the address of the head office and contact phone number of the enterprise. the address of the head office and contact phone number of the enterprise.

9. Responsibility for storing information and documents of postal enterprises

Decree 25 supplements the postal enterprise’s responsibility to keep records of documents as follows: (i) To archive contracts on provision and use of postal services and documents confirming the acceptance of postal items for at least 5 years; (ii) To store information about senders and recipients (i.e full name, address and phone number) and information related to postal items (i.e contents of packages and parcels, accompanying documents when transported according to the provisions of law) for at least 01 year from the receipt date.

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LEGAL UPDATE – APRIL 2022 – DECREE NO. 15/2022/ND-CP DATED JANUARY 28, 2022 OF THE GOVERNMENT ON TAX EXEMPTION AND REDUCTION POLICIES ACCORDING TO RESOLUTION NO. 43/2022/QH15 DATED JANUARY 28, 2022 OF THE NATIONAL ASSEMBLY

Issue April 2022

Nguyen T. Thu Trang
Associate

Nguyen T. Lien Lien 
Legal Assistant

After the issuance of the National Assembly’s Resolution No. 43/2022/QH15 on fiscal and monetary policies to support the socio-economic development and recovery program (“Resolution 43”), on January 28, 2022, the Government issued Decree No. 15/2022/ND-CP on tax exemption and reduction policies (“Decree 15”) according to the above-mentioned Resolution 43/2022/QH15 to implement the tax exemption and reduction policy in the National Assembly’s fiscal policy.

Value-added Tax Reduction from February 1, 2022 to December 31, 2022

In order to facilitate entities, individuals and tax administration departments in application with specialized tax legal regulations, Decree 15 provides the reduction of value-added tax (“VAT”) for goods and services subject to the VAT rate of 10%, and also clearly states the goods and services not eligible for VAT reduction, as particulars:

  1. Telecommunication, financial activities, banking activities, securities, insurance, trading of real estate, metal and precast metal products, mining products (excluding coal mining), coke mining, refined oil, chemical products;
  2. Goods and services subject to excise tax;
  3. Information technology as prescribed in the laws on information technology.

The reduction of VAT shall be applied consistently in all stages including import, production, processing, trading, except for coal products which the reduction of VAT is only applied to the stage of mining for purpose of sale. Accordingly, the VAT reduction is determined according to the tax calculation method and shall be applied from February 1, 2022 to December 31, 2022, specifically including:

  1. For businesses whose VAT payable is calculated by tax credit method, the businesses are entitled to the VAT tax rate of 8% for their goods and services;
  2. For businesses whose VAT payable is calculated per percentage on revenue, the businesses are entitled to reduction of 20% of the percentage rate to calculate VAT for their goods and services.

Procedures for VAT Reduction

In order to apply the deducted VAT rate, businesses must issue separate invoices for goods and services subject to VAT reduction. In case the businesses fail to issue separate invoices, the VAT reduction prescribed under Decree 15 will not be applied. For cases where the businesses issued an invoice and declared at the tax rate or percentage to calculate VAT that has not yet been deducted, the seller and the buyer shall make a minutes detailing the mistakes and the seller must issues and deliver an adjusted invoice to the buyer for the application of VAT reduction. Businesses declare goods and services eligible for VAT reduction according to the declaration on “VAT reduction according to Resolution 43” together with the value-added tax declaration.

Reduction of Expenses for Supporting and Financing the Covid-19 Prevention and Control

Decree 15 has additionally provided for the case that an enterprise provides support and sponsorship through the transfer of this donation to its parent company. In case the enterprise is a member unit, it is required to meet following conditions to be eligible for deduction of support and sponsorship expenses upon determination of deductible expenses:In addition to the expenses prescribed in laws on excise tax, in the corporate income tax period of 2022, expenses for supporting and financing the Covid-19 prevention and control in cash and in kind are included in deductible expenses for determination of taxable income for corporate income tax amounts through certain organizations including Vietnam Fatherland Front Committee at all levels, medical facilities, educational institutions, press agencies and other agencies specified under Decree 15.

  1. The parent company must have a minutes or document certifying the expenses of support or sponsorship signed and stamped by the representatives of enterprises being the member unit and parent company;
  2. The enterprise has legal invoices and documents for support or finances in cash or in kind as prescribed by law;
  3. The parent company has a written confirmation of the supports and finances of the member unit; and
  4. The parent company provides supports and finances through certain organizations  listed in Decree 15.

This is a new regulation in Decree 15 compared to the corresponding regulations in Decree 44/2021/ND-CP on guidelines for deductible expenses upon determination of income subject to corporate income tax regarding enterprise/organization’s grants to prevention and control of Covid-19 pandemic and is supplemented on the basis of arising expenses of supports and finances from economic groups in Vietnam.

Decree 15 takes effect from February 1, 2022.

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LEGAL UPDATE – APRIL 2022 – Vietnam’s Virtual Hearings under new regulations: Step-by-step approaches for e-Court system

Issue April 2022

Nguyen Dang Viet
Partner

Nguyen Ngoc Ly 
Assisting Lawyer

1. Overview

Facing numerous difficulties and delays amid the on-going COVID-19 pandemic, courts across the globe have been utilizing their electronic systems in order to implement remote courts.  Such movement is an appropriate solution to balance public health directives with the need to continue upholding the rule of law and thus Vietnam is no exception. Indeed, the Vietnamese government has been applying a series of technological solutions to develop electronic court system.

Within the past 2 years, considered as a component of the e-court platform, term “virtual court hearing” has been gradually used in Vietnam as the possible solution to support physical hearings specially when the pandemic continues to disrupt litigation practice. In many countries, thanks to virtual hearings stakeholders dont have to come to courtrooms.

In this regard, the National Assembly of Vietnam issued Resolution 33/2021/QH15 dated 12 November 2021 (“Resolution 33”) to regulate virtual hearings as a coexistent method with the current method of hearings.

Notably, a Joint Circular issued by the People’s Supreme Court of Vietnam, the Supreme People’s Procuracy, the Ministry of Public Security, the Ministry of Defence and the Ministry of Justice on December 15, 2021 (Joint Circular 05/2021/TTLT-TANDTC-VKSNDTC-BCA-BQP-BTP, “Joint Circular 05”) aims to set out the guidelines and procedures on organizing online court hearings which took effect from February 1, 2022.

A virtual hearing may be conducted by using videoconference or teleconference facilities, where cases are progressed without the need for participants to attend the court in person. From the current legal perspective, a  virtual hearing court is held in a courtroom, using electronic devices connected to each other via a network, allowing the defendant, victims, litigants and other participants to join the court session from outside the courtroom, but still ensuring they are able to fully follow the hearings through images and sounds, and to fully take part in the hearing by verbalizing and actions continuously and publicly proceeding at the same time of the court’s proceedings.[1]

2. Cases and authority of holding online hearings

According to Resolution 33/2021/QH15 (Art.1.1), the People’s Court is entitled to hold online court sessions for first-instance trial and appellate trial of the cases that satisfy the following 02 conditions: Cases and authority of holding online hearings

  • Criminal, civil and administrative cases having simple facts and characteristics;
  • Cases having clear factual documents and evidences.

However, e-hearings shall be not applied for:

  • Criminal, civil and administrative cases related to State secrets;
  • Criminal cases for crimes in national security specified in Chapter XIII of the Penal Code;
  • Criminal cases for crimes of against peace, humanity and war crimes specified in Chapter XXVI of the Penal Code.

3. General guides on holding Virtual Hearings

The organization of online court hearings is carried out according to the general principles of organizing the hearings of cases specified in the 2015 Criminal Procedure Code, the Civil Procedure Code 2015 and the Law on Administrative Procedure 2015. Besides, an important legal basis for the People’s Court to organize an online trial is the Resolution 33 and the Joint Circular 05 with some notable points as follows:

3.1  Obligation of the competent authorities

In the stage of preparation for an e-court hearing and decision to bring a case to trial, the court and relevant authorities (including procuracies, detainment centres and legal aid centers) have to coordinate effectively to ensure that the e-hearing is organized in compliance with applicable regulations.[2]

The court as the host of the virtual hearing shall ensure that all parties are properly notified of the virtual hearing so that necessary technical arrangements are made by the parties to test and connect to the e-platform.

3.2  Technical and procedural requirements

Online hearings shall be held by setting up 02 types of connecting points.

The main connecting point or an online courtroom may be at the Court’s headquarters or at a location selected by the Court, held in accordance with the provisions of Circular 01/2017/TT-TANDTC with the compulsory participants (the Trial Panel, the Court Clerk and the procurator assigned to handle the case).

The aforementioned e-courtroom shall be fully equipped with the devices for the online hearing such as lighting system, transmission lines and network equipment, sound systems and image display device, data and power and, etc.

For most civil, administrative or criminal trials, the component points only need to meet the basic conditions of space, image quality and sound to ensure online transmission of the trial. For a criminal court hearing where a component pount is located at a detention facility, separate regulations must be met according to Circular No. 01/2017/TT-TANDTC dated July 28, 2018 of the Chief Justice of the People’s Court. The Supreme People regulates the courtroom.

The participants other than the judges shall joint the hearing through a maximum of 03 component connecting points accepted by the Court.

In addition to the normal procedures as prescribed by the Criminal Procedure Code, the Civil Procedure Code and the Administrative Procedures Law, the online court hearing has other requirements,[3]  e.g. identifying participants in the e-hearing; the dissemination of some information about the online hearing at the opening of the same by the presiding judge.

3.3 General requirements for participants

To attend a hearing virtually, the participants have to comply with the notable etiquettes as follows:

·       Keep the camera and audio on at all times;

·       Do not create any extraneous and distracting noises.

·       Dress appropriately for court when appearing via videoconference;

·       Do not walk around or step away during a videoconference meeting unless allowed by the judge;

·       Ensure the confidentiality and the safety of the court, do not take photos, record audio or distributing documents on the media, etc.

·       Present ID documents as required by the court.

4. Conclusion

Vietnam is applying timely IR4.0 to virtual court hearings, which may bring benefits for stakeholders. virtual court hearings shall save time and costs, and be accessible. If Vietnam develop well such system, it shall improve the court capacity and to avoid the stagnancy of case settlements.

[1] Article 1.2 Resolution 33/2021/QH15

[2] Chapter II Joint Circular 05/2021/TTLT-TANDTC-VKSNDTC-BCA-BQP-BTP

[3] Article 13 Joint Circular 05

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LEGAL UPDATE – MARCH 2022 – Decree 02/2022/ND-CP dated on January 06, 2022 of Government on elaboration of certain articles of the Law on Real Estate Trading

Issue March 2022

Nguyen Thu Huyen
Partner

Nguyen Hoang Quan
Legal Assistant

In recent years, real estate business in Vietnam has always been on the top list of industries with the highest profit growth. According to the statistics of the PROFIT500 Ranking, conducted by Vietnam Report in the period 2017 – 2021[1], the top 7 industries achieved the highest compound annual rate (“CAGR[2]“) and made great contributions to the overall growth: Steel Industry (34.5%); Retail (17.5%); Finance sector (17.3%); Agriculture (16.0%); Food and Beverage Industry (11.9%); Chemical Industry (11.7%) and Real Estate – Construction Industry (10.8%). Not only the high profit growth rate, the real estate industry also appears many new types such as officetel, condotel, resort villa or shophouse that require a legal corridor to govern.

Facing the rapid development of the market, on January 6th, 2022, the Government issued Decree No. 02/2022/ND-CP on elaboration of certain articles of the Law on Real Estate Trading (“Decree 02”) to meet new requirements on State management in the field of real estate business. This Decree takes effect from March 1st, 2022 and replaces Decree No. 76/2015/ND-CP dated September 10th, 2015 of the Government detailing the implementation of a number of articles of the Law on real estate business (“Decree 76”). There are several notable new points in this Decree 02 as followings:

 1.Real estate businesses must disclose information

Decree 02 stipulates the responsibility for information disclosure as an eligibility criterion for organizations and individuals to conduct real estate trading, whereby real estate businesses, real estate project management Boards, and real estate trading floors must publicize information on enterprises’ websites, the headquarters of the Project Management Board, and the trading floor. The required information to be disclosed consist of (i) business information; (ii) information onn real estate put into business; (iii) information on mortgage of houses, construction works, real estate projects put into business; and (iv) information on the quantity and type of real estate products being traded, sold, transferred or leased out, and the rest are continuing to do business.[3]

The above regulation is a new regulation compared to Decree 76, concretizing the provisions in Article 6 of the Law on Real Estate Business 2014 on publicizing information about real estate put into business. This regulation aims to make information transparent in real estate business and, if it is implemented effectively, it will creates reference information channel for those in need of real estate transaction.

2. Regulations on legal capital and equity of investors:

Decree 76 stipulates the conditions for organizations and individuals doing real estate business to have a legal capital of not less than 20 billion VND. [4] This provision is annulled under the Investment Law 2020 and accordingly abolished in Decree 02.

In addition, Decree 02 supplements regulations on the owner’s equity of real estate project investors based on land use scale, consistent with regulations on owners of real estate project investors under the Decree 43/2014/ND-CP (not less than 20% of the total investment capital for projects using less than 20 hectares of land, not less than 15% of the total investment capital for projects with less than 20 hectares of land or more) as well as the method of determining this level of equity. The determination of equity specified in this Clause is based on the results of the most recent audited financial statements or the results of independent audit reports of the operating enterprise (made in the year or immediately preceding year); In the case of a newly established enterprise, the equity capital shall be determined according to the actual contributed charter capital as prescribed by law.[5]

Decree 02 clarifies conditions on financial capacity of real estate project investors which was not provided under Decree 76, ensuring synchronization between the law on real estate business and land law as well as new provisions of the Investment Law 2020.

3. Applying the general contract form in real estate business

One of the new points of Decree 02 is the application of model contracts in transactions of sale, transfer, lease, lease-purchase, sub-lease of real estate and transfer of real estate projects, including: Sample contract for sale/lease-purchase of tourist apartments, office apartments combined with accommodation, etc.

Decree 02 promulgates the form of a contract of sale/lease-purchase of tourist apartments, office apartments combined with accommodation for uniform application, which stipulates clearly and in detail the provisions related to such as: definition for “Tourist apartment/office apartment combined with accommodation”, “Shared ownership”, “Private ownership”, “Maintenance expenses”, “Warranty”, “Features of Tourist apartments/office apartments combined with accommodation are bought, sold/lease-purchased, “Rights and obligations of the parties”…This is an important step forward in terms of legality for these new real estate products.

In addition, it is worth noting that the forms of contracts specified in Decree 02 are mandatory and not only for reference in the process of signing contracts as the previous regulations in Decree 76.[6]

For real estate transfer transactions that have been signed before the effective date of the Decree 02, the parties do not need to re-sign the Contract according to the provisions of Decree 02. However, for cases where the parties are carrying out procedures for signing contracts for purchase and sale, lease-purchase of houses and construction works but the parties have not yet signed contracts by the effective date of this Decree, they must sign contracts according to regulations of Decree 02.[7]

4.  New points in buying and selling housing projects to be formed in the future and existing houses and constructions.

Decree 02 has detailed regulations on conditions for the transfer of contracts for sale and purchase of houses to be formed in the future[8], in addition to regulations on conditions for transfer of lease-purchase contracts available in Decree 76. The transfer of a contract for purchase, sale, or lease purchase of a house or construction work must satisfy the following conditions: (i) a contract is drawn up according to the provisions of Article 6 of Decree 02; (ii) are in the category of not yet submitting the application for the Certificate to the competent state agency; (iii) the contract is not subject to dispute and (iv) the house and works under the contract are not subject to distraint or mortgage to secure obligations, unless otherwise agreed by the mortgagee.

Decree 02 also stipulates in detail the order and procedures for transferring contracts of purchase, sale and lease-purchase of houses to be formed in the future and existing house and construction lease-purchase contracts.

5. The new regulation of transferring all or part of a real estate project

Decree 02 clearly stipulates the principle of transferring all or part of a real estate project. Accordingly, the transfer of real estate projects can only be done when all conditions are met and the project is being implemented under the approved schedule and contents. This is a new point and stricter requirement for real estate projects to be transferred, compared to the regulation “In case of transfer of the entire infrastructure construction investment project, the construction must be completed corresponding technical infrastructure works according to the approved schedule” [9] of the Law on Real Estate Business, forcing investors to strictly comply with the approved schedule and content of the project.

For real estate projects which investors are approved according to Law on Investment 2020 and projects that are granted with an Investment Registration Certificate in accordance with the provisions of the Law on Investment 2020, when transferring, the law on investment will be applied. Projects not falling into the above cases will be transferred according to the provisions of the Law on Real Estate Business and Decree 02.

Decree 02 includes 16 articles along with contract templates, to replace Decree 76, shall create new legal corridor for the real estate market in the coming years.

[1] https://vietnamreport.net.vn/Top-500-Doanh-nghiep-loi-nhuan-tot-nhat-Viet-Nam-nam-2021-9998-1006.html

[2] Compound Annual Growth Rate

[3] Article 4.1 (b) Decree No. 02/2022/ND-CP

[4] Article 3.1 Decree No. 76/2015/ND-CP

[5] Article 4.2 Decree No. 02/2022/ND-CP

[6] Article 7.2 (a) Decree 02/2022/ND-CP

[7] Article 14.1 and 14.2 Decree No. 02/2022/ND-CP

[8] Article 7 Decree No. 02/2022/ND-CP

[9] Article 49.1 (b) Law on Real Estate Trading on 2014

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LEGAL UPDATE – NOVEMBER 2021 – Tax exemption and reduction to assist enterprises affected by Covid-19

Issue November 2021

Nguyen Bich Van
Partner

Nguyen T. Minh Thu
Assisting Lawyer

Supportive measures to assist enterprises and people who are affected by COVID-19, the Government enacted Decree No. 92/2021/ND-CP dated 27 October 2021 to elaborate of Resolution No. 406/NQ-UBTVQH15 of National Standing Committee. Decree No.92 has detailed guidance on the contents which impact on operation of enterprises, including (i) Corporate income tax (CIT) reduction, (ii) VAT reduction, (iii) Exemption of delayed payment.

CIT reduction

Enterprises established in accordance with Vietnam’s law, Organizations that are established in accordance with the Law on Cooperatives whose revenue in the tax period of 2021 does not exceed 200 billion VND and is smaller than the revenue earned in the tax period of 2019 are subject to enjoy CIT reduction. For enterprises who are newly established, consolidated, merged or acquired for the tax period of 2020 and 2021, the reduction shall be applicable provided that the condition on revenue in the tax period of 2021 does not exceed 200 billion VND.

The reduction rate is 30% of payable amount of CIT in 2021. CIT deductible amount is counted for enterprise’s entire revenue, including incomes from capital assignment or transfer the right of capital contribution; incomes from real estate transfer (exclusive social housing); incomes from transfer of investment projects, transfer the right to invest in projects, and other incomes which are excluded when applying tax incentives under the Law on Corporate Income Tax. CIT deduction is not applicable to deducted revenue, revenues from financial activities and other incomes. The reduced CIT under Decree 92 does not include the CIT which is eligible for incentives according to prevailing regulations.

The Decree 92 also provide guidance to determine revenue for enterprises with less than 12 months of operation and declaration of tax reduction.

VAT reduction

Enterprises, organizations shall be reduced 30% of VAT’s rate or 30% of the rate for calculating VAT depending on applicable tax calculation method. The period of VAT reduction is from 01 November 2021 to 31 December 2021.

Deduction of VAT is applicable to goods, services which are heavily impacted by Covid-19, including: (i) transportation services (railway, waterway, air, and other road transport); accommodation services; food and beverage services; travel and tourism agencies, travel and tourism related or supportive services; (ii) Publishing products and services; cinematography services, TV show production, music recording and publishing; artworks, composing, art, recreation services; services of library, archives, museum, cultural activities; sport and entertainment services. The goods and services mentioned in item (ii) do not include software and online sales of goods and services.

Out of noting on how to make VAT invoice, handling issued invoices which have not been noted on tax reduction, enterprises and organizations need to declare the goods and services to be reduced VAT in the “Appendix on reduction of VAT under Resolution No. 406/NQ-UBTVQH15″ in Appendix II issued attached to this Decree together with the VAT Declaration Note.

Exemption of late payment

Enterprises, organizations which incur losses in the tax period of 2020 shall be exempted late payment amount incurred in 2020 and 2021 for on outstanding tax payable amount, land use levies and land rental. If the outstanding tax payable, land use levies, land rent are increased by enterprise itself or in accordance with decisions of the State Authorities, enterprises are not subject to pay late payment amount incurred in 2020 and 2021 for such increased amount if the taxpayer incurs a loss in 2020. The exemption, however, is not applied in the cases that late payment amount has been paid before the effective date of this Decree.

To be exempted from late payment, enterprises must submit request for exemption of late payment to responsible tax authority for determination of losses in 2020 and consideration of exemption of late payment. Time limit for consideration is 15 working days from the receipt of the taxpayer’s application form for exemption from late payment.

It should be noted that in case the tax authority wrongly determines the right to be exempted from late payment, the tax authority may revoke the decision on exemption from late payment interest and the enterprises must pay in accordance with the laws.

The Decree 92 takes effect from 19 October 2021.

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