Author: Vu Mai Trang

VIETNAM: TIGHTENED POLICY ON IMPORT OF USED MACHINERIES, EQUIPMENT AND TECHNOLOGICAL LINES

Lưu ý: “bài viết này chỉ phát hành tiếng Anh cho tạp chí nước ngoài Asian- Mena Counsel”

By Ha Hai.

From 2015, the import of used machineries and technological lines is subject to the Circular 23/2015/TT-BKHCN, which contains some inadequate points causing difficulties in import of used machineries, technological lines, especially those of more than 10 years old in fact. The provision that import of used machineries and technological lines for an investment project must be approved by the investment registrar authority was totally unreasonable and in fact unenforceable, which caused difficulties not only for import companies but also investment authorities. Meanwhile, the Circular required import companies to obtain approvals from the Ministry of Science and Technology, but was silent on the specific procedure to do so, resulting in import companies’ confusion and inactivity.

Repairing the shortcomings of Circular 23, the Prime Minister issued the new Decision 18/2019/QD-TTg to provide for a better legal framework for import of used machineries and technological lines, which helps in the restriction of trash imports into Vietnam. In principle, like most other countries in the world, it is prohibited to import into Vietnam any used machinery, equipment or technological lines that have been discarded as announced by exporting countries due to their obsolescence or low quality, causing environmental pollution; or failure to satisfy safety, energy saving or environmental protection requirements. In Vietnam, only the import of used machinery, equipment and technological lines meant to directly serve the manufacturing of enterprises in Vietnam is allowed. Used machineries and technological lines must be manufactured in accordance with National Technical Regulations (QCVN) on safety, energy saving, and environmental protection. In case of unavailability of National Technical Regulations (QCVN) for a machinery or technological line to be imported, it must be manufactured in conformity with technical indicators of Vietnam’s Standards (TCVN) or Standards of G7 countries or Korea with regard to safety, energy saving and environmental protection.

Regarding used machineries and equipment, the Decision retains the general rule that used machineries and equipment are only qualified for import if their ages do not exceed 10 years. However, the Decision loosens the maximum age for some specific machinery in the areas of mechanics (machine tools for working metals and other types of materials), wood production and processing, and paper and paper pulp production to 15 or 20 years. Machineries over the provided maximum age are subject to import approval from the Ministry of Science and Technology, which shall only be granted if remaining capacity or performance achieves 85 percent or above of the machinery/equipment’s design capacity or performance, and amount of raw materials or energy consumed does not exceed 15 percent of its design consumption level.

Unlike the previous Circular 23 which provided the same conditions for used machineries/equipment and technological lines, the Decision 18/2019/QD-TTg requires more conditions for technological lines than machineries and equipment. Technological lines are not subject to the condition on maximum age, and must satisfy the condition on remaining capacity and material and energy consumption level as mentioned above. Furthermore, technologies of the technological line to be imported must not be prohibited or restricted from transferring, and being applied by at least three manufacturers of member countries of Organisation for Economic Cooperation and Development (OECD). Used technological lines are not subject to import approval from the Ministry of Science and Technology.

To be imported into Vietnam, used machineries, equipment, technological lines must obtain an Assessment Certificate from a licensed assessment company to assess their satisfaction with provided conditions by laws. The assessment certificate issued by the assessment company is required by the new Decision to conclude many more contents than previously, such as assessment method and procedure, name-number of standard QCVN, TCVN or G7, Korea about safety, energy saving and environmental protection, conclusion on satisfaction to each condition provided by laws.

Therefore, in fact, the assessment procedures by the assessment companies will be much more complicated and lengthy as the assessment companies shall have to prove the applicable standard and assessment method. This is not such an easy job as before as now the assessment company must determine the applicable standards, then choose the assessment method suitable to such machines and prove the assessment method and applicable standards. It may take some days for assessment on some big and old machines. Especially, assessment of a used technological line must be conducted at the exporting country while the technological line is operating. Practically, importers are advised generally to conduct the assessment on used machineries and equipment at the exporting country as well because if the assessment is conducted on arrival in Vietnam and any condition may be concluded to be unsatisfied after the assessment, the importer shall be applied with heavy fines and the machineries shall be deported, which is not only costly but also badly affects the importer’s reputation in Vietnam.

https://www.inhousecommunity.com/article/vietnam-tightened-policy-import-used-machineries-equipment-technological-lines/

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NEW GUIDANCE ON FOREX MANAGEMENT TO FDI ENTERPRISES

Lưu ý: “bài viết này chỉ phát hành tiếng Anh cho tạp chí nước ngoài Asian- Mena Counsel”

By Phuong Phan.

In mid-2019, the State Bank of Vietnam issued Circular No. 06/2019/TT-NHNN dated June 26, 2019 (Circular 06) to provide guidance on foreign exchange management for foreign direct investment in Vietnam. This Circular shall take effect from September 6, 2019 and replace Circular No. 19/2014/TT-NHNN dated August 11, 2014 (Circular 19).

Direct investment and Capital Account

One of the noteworthy points under Circular 06 is that it clearly determines and construes foreign-invested enterprises, which are required to open the Direct Investment Capital Account (DICA), including (i) enterprises being established in the investment form of economic organisations, in which foreign investors are members or shareholders and must carry out the procedures to obtain Investment Registration Certificate (IRC) in accordance with the investment law, (ii) enterprises not subject to IRC and having 51 percent or more of the charter capital owned by foreign investors, for example enterprises having the foreign investors to contribute capital, purchase shares or portion of capital contribution to such enterprise which result in the foreign investors owning 51 percent or more of the charter capital of such enterprises (in this case the foreign investors obtained the notification on satisfaction of the conditions for capital contribution and share purchase (M&A Approval) and (iii) enterprises established by the foreign investors to implement PPP projects in accordance with the investment law (hereafter referred to DICA Enterprise).

The enterprises under (ii) and (iii) above are required to close DICA in the following cases: (i) after completing the transfer of shares, contribution capital or issuing the additional shares in order to increase the charter capital in such enterprises, the percentage of shares and contribution capital owned by the foreign investors at such enterprises is below 51 percent; or (ii) after such enterprises having become the listed enterprises with their shares listed or registered for trading on the Stock Exchange. In such cases, the non-resident foreign investors who own the shares, capital contribution in such enterprise must open the Indirect Investment Capital Account (IICA) in order to implement their revenue and expenditure transactions.

Screenshot 2019-09-11 at 10.44.31 AM

Capital contributions

One more notable point is that the foreign and domestic investors are allowed to contribute capital in Vietnamese dong or foreign currencies as provided in IRC, the establishment and operation licence under the specialised regulations (for the foreign-invested enterprises established and operated under the specialised regulations), M&A Approval, the PPP Contract signed with the competent state authorities and other evidence. This point will support the remittance banks to clarify the supporting documents provided by the foreign investor in order to allow the fund transfer without IRC requirement as usually did in the past. Thus, it being understood that in case the local enterprise which was incorporated by Vietnamese investors and then acquired by the foreign investors leading to such foreign investors owning 51 percent or more of the charter capital of such enterprise, the foreign investors should firstly obtain M&A Approval and then such enterprise opens DICA. Then the foreign investors implement the fund transfer through DICA and such enterprise will implement the procedures to recognise the foreign investors as the members/shareholders of such enterprise.

Circular 06 regulates more clearly the payment route regarding M&A transactions involving DICA Enterprise as follows: (i) the payment of transfer price between a resident investor and a non-resident investor must be implemented through DICA and in Vietnamese dong; (ii) the payment of transfer price between two non-resident investors is allowed to implement in foreign currency or Vietnamese dong and the payment of transfer price between two resident investors must be in Vietnamese dong, however, they both are not required to implement through DICA. Having said that, it seems to allow foreign investors to implement the offshore payment in foreign currency thanks to Circular 06. Before Circular 06, it is arguable that offshore payment for transfer price in the DICA Enterprises is allowed or it must be implemented through DICA.

Conclusion

In summary, Circular 06 has some significant improvements regarding capital transactions and M&A pertaining to foreign-invested enterprises in Vietnam.

https://www.inhousecommunity.com/article/vietnam-new-guidance-forex-management-fdi-enterprises/

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NEW GUIDANCE ON FOREX MANAGEMENT TO FDI ENTERPRISES

By Phuong Phan.

In mid-2019, the State Bank of Vietnam issued Circular No. 06/2019/TT-NHNN dated June 26, 2019 (Circular 06) to provide guidance on foreign exchange management for foreign direct investment in Vietnam. This Circular shall take effect from September 6, 2019 and replace Circular No. 19/2014/TT-NHNN dated August 11, 2014 (Circular 19).

Direct investment and Capital Account

One of the noteworthy points under Circular 06 is that it clearly determines and construes foreign-invested enterprises, which are required to open the Direct Investment Capital Account (DICA), including (i) enterprises being established in the investment form of economic organisations, in which foreign investors are members or shareholders and must carry out the procedures to obtain Investment Registration Certificate (IRC) in accordance with the investment law, (ii) enterprises not subject to IRC and having 51 percent or more of the charter capital owned by foreign investors, for example enterprises having the foreign investors to contribute capital, purchase shares or portion of capital contribution to such enterprise which result in the foreign investors owning 51 percent or more of the charter capital of such enterprises (in this case the foreign investors obtained the notification on satisfaction of the conditions for capital contribution and share purchase (M&A Approval) and (iii) enterprises established by the foreign investors to implement PPP projects in accordance with the investment law (hereafter referred to DICA Enterprise).

The enterprises under (ii) and (iii) above are required to close DICA in the following cases: (i) after completing the transfer of shares, contribution capital or issuing the additional shares in order to increase the charter capital in such enterprises, the percentage of shares and contribution capital owned by the foreign investors at such enterprises is below 51 percent; or (ii) after such enterprises having become the listed enterprises with their shares listed or registered for trading on the Stock Exchange. In such cases, the non-resident foreign investors who own the shares, capital contribution in such enterprise must open the Indirect Investment Capital Account (IICA) in order to implement their revenue and expenditure transactions.

Screenshot 2019-09-11 at 10.44.31 AM

Capital contributions

One more notable point is that the foreign and domestic investors are allowed to contribute capital in Vietnamese dong or foreign currencies as provided in IRC, the establishment and operation licence under the specialised regulations (for the foreign-invested enterprises established and operated under the specialised regulations), M&A Approval, the PPP Contract signed with the competent state authorities and other evidence. This point will support the remittance banks to clarify the supporting documents provided by the foreign investor in order to allow the fund transfer without IRC requirement as usually did in the past. Thus, it being understood that in case the local enterprise which was incorporated by Vietnamese investors and then acquired by the foreign investors leading to such foreign investors owning 51 percent or more of the charter capital of such enterprise, the foreign investors should firstly obtain M&A Approval and then such enterprise opens DICA. Then the foreign investors implement the fund transfer through DICA and such enterprise will implement the procedures to recognise the foreign investors as the members/shareholders of such enterprise.

Circular 06 regulates more clearly the payment route regarding M&A transactions involving DICA Enterprise as follows: (i) the payment of transfer price between a resident investor and a non-resident investor must be implemented through DICA and in Vietnamese dong; (ii) the payment of transfer price between two non-resident investors is allowed to implement in foreign currency or Vietnamese dong and the payment of transfer price between two resident investors must be in Vietnamese dong, however, they both are not required to implement through DICA. Having said that, it seems to allow foreign investors to implement the offshore payment in foreign currency thanks to Circular 06. Before Circular 06, it is arguable that offshore payment for transfer price in the DICA Enterprises is allowed or it must be implemented through DICA.

Conclusion

In summary, Circular 06 has some significant improvements regarding capital transactions and M&A pertaining to foreign-invested enterprises in Vietnam.

https://www.inhousecommunity.com/article/vietnam-new-guidance-forex-management-fdi-enterprises/

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BẢN TIN PHÁP LÝ – THÁNG 09, 2019

MỘT SỐ QUY ĐỊNH MỚI VỀ SỞ HỮU TRÍ TUỆ

Ngày 14 tháng 6 năm 2019, Quốc Hội đã ban hành Luật số 42/2019/QH14 sửa đổi bổ sung một số điều của Luật Kinh doanh bảo hiểm và Luật Sở hữu trí tuệ (“Luật số 42”) để phù hợp với các quy định về Hiệp định Đối tác toàn diện và Tiến bộ xuyên Thái Bình Dương (CPTPP). Luật số 42 chính thức có hiệu lực thi hành từ ngày 01 tháng 11 năm 2019 với các điểm liên quan đến Sở hữu trí tuệ cần lưu ý như sau:

1. Tính mới và trình độ sáng tạo của sáng chế
Sáng chế không bị coi là mất tính mới nếu đơn đăng ký được nộp trong vòng 12 tháng tại Việt Nam kể từ ngày:
i. được người có quyền đăng ký hoặc người có được thông tin về sáng chế bộc lộ một cách trực tiếp hoặc gián tiếp;
ii. được bộc lộ bởi cơ quan quản lý nhà nước về sở hữu công nghiệp không đúng quy định;
iii. do người không có quyền đăng ký nộp.

Quy định mới của Luật số 42 đã kéo dài thời gian nộp đơn đăng ký sáng chế không bị coi là mất tính mới từ 6 tháng lên 12 tháng và quy định phạm vi đối tượng nộp đơn đăng ký rộng hơn so với quy định cũ của Luật Sở hữu trí tuệ.

Ngoài ra, Luật số 42 còn bổ sung quy định giải pháp kỹ thuật là sáng chế được bộc lộ trong các trường hợp trên sẽ không được lấy làm cơ sở để đánh giá trình độ sáng tạo của sáng chế đó.

2. Hiệu lực của Hợp đồng sử dụng Nhãn hiệu (“Hợp đồng Li-xăng”)
Kể từ ngày 14/01/2019, Hợp đồng Li-xăng giữa các bên không cần phải đăng ký tại Cục Sở hữu trí tuệ mà vẫn sẽ có hiệu lực pháp lý đối với bên thứ ba.

3. Nghĩa vụ sử dụng nhãn hiệu
Trường hợp có tranh chấp phát sinh do bên thứ ba yêu cầu chấm dứt văn bằng bảo hộ vì nhãn hiệu không được sử dụng trong năm (05) năm liên tiếp thì việc bên nhận chuyển quyền sử dụng nhãn hiệu theo Hợp đồng Li-xăng vẫn được coi là hành vi sử dụng nhãn hiệu chủ sở hữu nhãn hiệu.

4. Quyền tự bảo vệ
Luật số 42 quy định tổ chức/ cá nhân là đối tượng của hành vi lạm dụng thủ tục bảo vệ quyền sở hữu trí tuệ (cố ý vượt quá phạm vi hoặc mục tiêu) có quyền yêu cầu Tòa án buộc bên lạm dụng phải bồi thường cho những thiệt hại do việc lạm dụng gây ra (bao gồm chi phí hợp lý để thuê luật sư).

Ngoài ra còn có những quy định được sửa đổi, bổ sung như sau:
1. Tên gọi, chỉ dẫn là tên gọi chung của hàng hóa theo nhận thức của người tiêu dùng có liên quan trên lãnh thổ Việt Nam không được bảo hộ với danh nghĩa chỉ dẫn địa lý ;
2. Từ chối hoặc hủy bỏ chỉ dẫn địa lý do “có khả năng gây nhầm lẫn” thay vì “sẽ gây nhầm lẫn” với nhãn hiệu đang được bảo hộ tại Việt Nam ;
3. Đơn đăng ký xác lập quyền sở hữu công nghiệp được nộp dưới dạng giấy hoặc dạng điện tử theo hệ thông nộp đơn trực tuyến ;
4. Bổ sung quy định về Đề nghị quốc tế và xử lý đơn Đề nghị quốc tế để bảo hộ chỉ dẫn địa lý ;
5. Các thiệt hại về vật chất có thể được xác định do chủ thể quyền sở hữu trí tuệ đưa ra phù hợp với quy định của pháp luật .

LEGAL UPDATE – SEPTEMBER 2019

NEW REGULATIONS ON INTELLECTUAL PROPERTY LAW

On June 14th, 2019, the National Assembly enacted Law No. 42/2019/QH14 on amendment and supplement of a number of articles of Law on Insurance Business and Law on Intellectual Property (“Law No. 42”) to comply with the Intellectual Property regulations set forth in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). Law No. 42 will officially take effect from November 1st, 2019 with points related to Intellectual Property noted as follows:
1. Novelty and inventive step of patent

A patent shall not lose its novelty if the patent application is submitted within 12 months in Vietnam from the date that:

i. The patent is directly or indirectly disclosed by the person who is entitled to registry or the person who has information about it.

ii. The disclosure of the patent by the State administrative agency of industrial property rights is inconsistent with the laws;

iii. The patent application is submitted by the person who is ineligible for registration.

The patent shall not be considered losing its novelty as new regulation of Law No. 42 extends the time limit for submission of patent application from 6 months to 12 months. Besides, Law No. 42 provides wider range of the applicants than the former regulations of Law on Intellectual Property.

In addition, Law No. 42 supplements the regulations that a technical solution which is a patent disclosed in the above cases shall not be used as a basis for evaluating the inventive step of such patent.

2. Validity of the Trademark Licensing Agreement (“TLA”)

The TLA between the parties is legally binding upon third parties without being registered at the National Office of Intellectual Property.

3. Obligation to use the trademarks

In the event that a dispute arises due to a request for termination of validity of Trademark Certificate of Registration of the third party as the trademark has not been used for five (05) consecutive years, the use of licensed trademark by a licensee is still considered the use of the trademark owner.

4. Self-defense right

According to Law No. 42, an organization/individual that is abused by intellectual property defense procedures (intentionally exceeding the scope or purpose of the procedure) is entitled to request the Court to compel the abusing party of compensation for damages caused by abusive procedures (including reasonable fees for hiring a lawyer).

Moreover, there are additional amendments as follows:

1. Names and indications, which are the common name of goods and widely accepted by consumers in Vietnam, are ineligible for protection as geographical indications;

2. Refusal or cancellation of geographical indications due to “potentially confusing” instead of “will cause confusion” with protected trademark in Vietnam;

3. An application for registration of industrial property rights shall be submitted in paper or electronic form according to the online filing system;

4. Supplementing provisions on International proposals and processing of International proposals for protection of geographical indications;

5. Material losses caused by intellectual property’s infringement can be determined by the intellectual property right’s holder in accordance with provisions of laws.

NEW LAW ON COMPETITION TAKES EFFECT

Lưu ý: “bài viết này chỉ phát hành tiếng Anh cho tạp chí nước ngoài Asian- Mena Counsel”

By Nguyen Thu Huyen.

Vietnam’s National Assembly passed the new Law on Competition (New Competition Law) on June 12, 2018 and it will be taking effect on July 1, 2019, 14 years after the implementation of the Law on Competition 2004.

The New Competition Law governs (i) the acts in restraint of competition, economic concentrations which have or may have a competition-restraining impact on Vietnam’s market; (ii) unfair competitive acts; (iii) competition legal proceedings; (iv) dealing with breaches of the law on competition; and (v) State administration of competition.

The New Competition Law extends the scope of its applicable entities that consist of “related domestic and foreign agencies, organisations and individuals”, apart from organisations and individuals conducting business and industry and professional associations operating in Vietnam. These broadened regulations aim to create the mechanism to settle anti-competitive acts and/or cases which may be implemented overseas but have or may have a competition-restraining impact on Vietnam’s market and to control acts relating to competition of state authorities. This content is to meet the requirements of economic integration and create a fair competition environment for both domestic and foreign organisation/individuals.

Pursuant to the New Competition Law, there are significant changes in regulating “acts in restraint of competition”, which are defined as actions that cause or may cause a competition-restraining impact, including “practices of agreement in restraint of competition, abuse of dominant market position, and abuse of monopoly position”. Under the 2004 version of Law, the “acts in restraint of competition” apply only to enterprises and consist of “economic concentration”, meanwhile, these matters are now no longer provided.

The approaching method under the 2004 version of the law to control “agreements in restraint of competition” is solely based on “combined market share”. At present, the New Competition Law manages these agreements by its nature or ability to have a significant competition-restraining impact in the market. The term “significant competition-restraining impact” is newly provided and shall be determined by the National Competition Committee according to market share ratio, barriers to market access or expansion, restriction of research, development and renovation of technologies, etc. The New Competition Law further provides three more types of agreements in its list of “agreements in restraint of competition”, including: agreements not to trade with parties not participating in the agreements; agreements to restrain the product sale market or sources of supply of goods and services of parties not participating in the agreements; and other agreements which have or may have a competition-restraining impact. In addition, the New Competition Law provides the new term of “significant market force”, which is a ground to verify “a dominant market position” of an enterprise, apart from the one of “holding of 30 percent or more of the market share in the relevant market”.

The management of economic concentration is another noteworthy change of the New Competition Law. Unlike the 2004 version of the law, which determines the prohibited economic concentration by relevant market share ratio, presently, economic concentration shall be prohibited if it causes the effect or is capable of causing the effect of significantly restricting competition in the market of Vietnam. The “significantly restricting competition effect” shall be also confirmed by the National Competition Committee based on specific elements provided in this New Competition Law. Regarding “the unfair competitive acts”, the New Competition Law does not re-provide and refer to other acts that are governed under other relevant laws, and “illegal multi-level sales” are excluded from unfair competitive acts.

One last remarkable point of the New Competition Law is to strengthen and ensure the independence of the state administration of competition by having new regulation on the National Competition Committee, which is an agency under the Ministry of Industry and Trade, being in charge of advising and assisting the Minister of Industry and Trade in exercising the function of state administration of competition; carrying out competition legal proceedings and to perform other duties in accordance with the laws.

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ENCOURAGING FOREIGN DIRECT INVESTMENT IN VIETNAM’S EDUCATION SECTOR

Lưu ý: “bài viết này chỉ phát hành tiếng Anh cho tạp chí nước ngoài Asian- Mena Counsel”

By Phan Nhat Phuong.

In the middle of the year 2018, the Government of Vietnam issued Decree No. 86/2018/ND-CP (Decree 86) to regulate foreign cooperation and investments in education sector in Vietnam, taking effect as from August 1, 2018 and replacing Decree No. 73/2012/ND-CP (Decree 73) and Decree No. 124/2014/ND-CP (Decree 124).

One of the noteworthy points under Decree 86 is educational association, which is defined as twinning between Vietnamese private kindergartens, Vietnamese private general educational institutions and foreign educational institutions accredited by an education quality assessment organisations or foreign competent authorities in order to implement the integrated education programme; provided however that the educational association and the integrated education programme must be approved by the Vietnamese competent authorities. The period of educational association shall not exceed five years from the date of approval, which can be extended five years for each renewal.

The remarkable regulations to implement the integrated education programme under Decree 86 includes: (i) foreign education programme used in the integrated education programme shall be accredited in the home country or by an educational competent authority of the aforesaid country; (ii) the integrated education programme shall ensure the objectives of the Vietnamese education programme and still satisfy the requirements of the foreign education programme; learners shall not be forced to re-study the same contents, and the integrated programme shall maintain its stability throughout the study level and the interconnection between levels for the interests of the students; and ensuring volunteer participation and not overwhelming the students; (iii) the size of class and the facilities shall adequately meet the requirements of the integrated education programme and shall not affect the teaching activities of the Vietnamese educational institution during the education association process; (iv) the Vietnamese teachers assigned to teach an integrated education programme shall satisfy the training requirements according to the regulations of Vietnamese laws; the foreign teachers assigned to teach an integrated programme is required with a bachelor’s degree corresponding to his/her teaching majors and also a teacher certificate or equivalent.

One more notable point is that the administrative procedure provided under Decree 73 to obtain decision on establishment of foreign invested centres providing short-term training on foreign languages, IT, cultures and specialised skills are repealed under Decree 86. Accordingly, the establishment of such centres is subject only to the following procedures: (i) obtaining Investment Registration Certificate for foreign investors; (ii) obtaining Enterprise Registration Certificate for enterprise operating the centres and (iii) obtaining approval of educational operation and publication on the websites of the licensing competent authority. Under Decree 86, in order to issue Investment Registration Certificate, the licensing competent authority (ie, Department of Planning and Investment) is required to send the official letter to get the appraisal of the corresponding Department of Education and Training; however, in practice, the licensing authority at its discretion may ask for further appraisal from District People’s Committee and Department of Transportation.

In addition, the limitation of Vietnamese students has been raised from 10 percent of primary and 20 percent of secondary students under Decree 73 to a higher percentage of not exceeding 50 percent of the total enrolment of the international school.

Lastly, Decree 86 opens more opportunities for the foreign-invested kindergartens to enrol Vietnamese children under five years old which was previously prohibited under Decree 73.

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NEW LAW ON COMPETITION TAKES EFFECT

By Nguyen Thu Huyen.

Vietnam’s National Assembly passed the new Law on Competition (New Competition Law) on June 12, 2018 and it will be taking effect on July 1, 2019, 14 years after the implementation of the Law on Competition 2004.

The New Competition Law governs (i) the acts in restraint of competition, economic concentrations which have or may have a competition-restraining impact on Vietnam’s market; (ii) unfair competitive acts; (iii) competition legal proceedings; (iv) dealing with breaches of the law on competition; and (v) State administration of competition.

The New Competition Law extends the scope of its applicable entities that consist of “related domestic and foreign agencies, organisations and individuals”, apart from organisations and individuals conducting business and industry and professional associations operating in Vietnam. These broadened regulations aim to create the mechanism to settle anti-competitive acts and/or cases which may be implemented overseas but have or may have a competition-restraining impact on Vietnam’s market and to control acts relating to competition of state authorities. This content is to meet the requirements of economic integration and create a fair competition environment for both domestic and foreign organisation/individuals.

Pursuant to the New Competition Law, there are significant changes in regulating “acts in restraint of competition”, which are defined as actions that cause or may cause a competition-restraining impact, including “practices of agreement in restraint of competition, abuse of dominant market position, and abuse of monopoly position”. Under the 2004 version of Law, the “acts in restraint of competition” apply only to enterprises and consist of “economic concentration”, meanwhile, these matters are now no longer provided.

The approaching method under the 2004 version of the law to control “agreements in restraint of competition” is solely based on “combined market share”. At present, the New Competition Law manages these agreements by its nature or ability to have a significant competition-restraining impact in the market. The term “significant competition-restraining impact” is newly provided and shall be determined by the National Competition Committee according to market share ratio, barriers to market access or expansion, restriction of research, development and renovation of technologies, etc. The New Competition Law further provides three more types of agreements in its list of “agreements in restraint of competition”, including: agreements not to trade with parties not participating in the agreements; agreements to restrain the product sale market or sources of supply of goods and services of parties not participating in the agreements; and other agreements which have or may have a competition-restraining impact. In addition, the New Competition Law provides the new term of “significant market force”, which is a ground to verify “a dominant market position” of an enterprise, apart from the one of “holding of 30 percent or more of the market share in the relevant market”.

The management of economic concentration is another noteworthy change of the New Competition Law. Unlike the 2004 version of the law, which determines the prohibited economic concentration by relevant market share ratio, presently, economic concentration shall be prohibited if it causes the effect or is capable of causing the effect of significantly restricting competition in the market of Vietnam. The “significantly restricting competition effect” shall be also confirmed by the National Competition Committee based on specific elements provided in this New Competition Law. Regarding “the unfair competitive acts”, the New Competition Law does not re-provide and refer to other acts that are governed under other relevant laws, and “illegal multi-level sales” are excluded from unfair competitive acts.

One last remarkable point of the New Competition Law is to strengthen and ensure the independence of the state administration of competition by having new regulation on the National Competition Committee, which is an agency under the Ministry of Industry and Trade, being in charge of advising and assisting the Minister of Industry and Trade in exercising the function of state administration of competition; carrying out competition legal proceedings and to perform other duties in accordance with the laws.

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ENCOURAGING FOREIGN DIRECT INVESTMENT IN VIETNAM’S EDUCATION SECTOR

By Phan Nhat Phuong.

In the middle of the year 2018, the Government of Vietnam issued Decree No. 86/2018/ND-CP (Decree 86) to regulate foreign cooperation and investments in education sector in Vietnam, taking effect as from August 1, 2018 and replacing Decree No. 73/2012/ND-CP (Decree 73) and Decree No. 124/2014/ND-CP (Decree 124).

One of the noteworthy points under Decree 86 is educational association, which is defined as twinning between Vietnamese private kindergartens, Vietnamese private general educational institutions and foreign educational institutions accredited by an education quality assessment organisations or foreign competent authorities in order to implement the integrated education programme; provided however that the educational association and the integrated education programme must be approved by the Vietnamese competent authorities. The period of educational association shall not exceed five years from the date of approval, which can be extended five years for each renewal.

The remarkable regulations to implement the integrated education programme under Decree 86 includes: (i) foreign education programme used in the integrated education programme shall be accredited in the home country or by an educational competent authority of the aforesaid country; (ii) the integrated education programme shall ensure the objectives of the Vietnamese education programme and still satisfy the requirements of the foreign education programme; learners shall not be forced to re-study the same contents, and the integrated programme shall maintain its stability throughout the study level and the interconnection between levels for the interests of the students; and ensuring volunteer participation and not overwhelming the students; (iii) the size of class and the facilities shall adequately meet the requirements of the integrated education programme and shall not affect the teaching activities of the Vietnamese educational institution during the education association process; (iv) the Vietnamese teachers assigned to teach an integrated education programme shall satisfy the training requirements according to the regulations of Vietnamese laws; the foreign teachers assigned to teach an integrated programme is required with a bachelor’s degree corresponding to his/her teaching majors and also a teacher certificate or equivalent.

One more notable point is that the administrative procedure provided under Decree 73 to obtain decision on establishment of foreign invested centres providing short-term training on foreign languages, IT, cultures and specialised skills are repealed under Decree 86. Accordingly, the establishment of such centres is subject only to the following procedures: (i) obtaining Investment Registration Certificate for foreign investors; (ii) obtaining Enterprise Registration Certificate for enterprise operating the centres and (iii) obtaining approval of educational operation and publication on the websites of the licensing competent authority. Under Decree 86, in order to issue Investment Registration Certificate, the licensing competent authority (ie, Department of Planning and Investment) is required to send the official letter to get the appraisal of the corresponding Department of Education and Training; however, in practice, the licensing authority at its discretion may ask for further appraisal from District People’s Committee and Department of Transportation.

In addition, the limitation of Vietnamese students has been raised from 10 percent of primary and 20 percent of secondary students under Decree 73 to a higher percentage of not exceeding 50 percent of the total enrolment of the international school.

Lastly, Decree 86 opens more opportunities for the foreign-invested kindergartens to enrol Vietnamese children under five years old which was previously prohibited under Decree 73.

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RECRUITMENT ANNOUNCEMENT

13th June 2019

BIZCONSULT LAW FIRM is recognized as one of the most prestigious law firms in Vietnam. We are highly evaluated and ranked in the group of leading professional law firms in Vietnam in some key areas such as Business & Trade, Mergers & Acquisitions, Finance & Banking, Real Estate & Construction/EPC Contracts, Investment Projects (Inbound & Outbound), Intellectual Property & Franchise, Dispute Resolution & Litigation (Arbitration and Court) by international professional organizations such as Legal500 Asia Law Firms, Asian Legal Business (ALB), Getting The Deal Through (Mergers & Acquisitions Magazine), Global Legal Experts, Asia IP (Asian Intellectual Property Magazine), asialaw (Asian Law Magazine), etc… Our clients are multinational corporations, international organizations, investment funds and domestic and foreign enterprises. Please visit our website at: http://www.bizconsult.vn for more information.

In order to meet the demand for the Company’s development, we would like to recruit new vacant positions in Hanoi office as follows:

I. POSITION: LITIGATION LAWYER – Quantity: 02

Job description:

  • Doing legal consulting works, acting as litigation lawyers in Court and arbitration;
  • Doing legal research and preparing legal memorandum; drafting legal advice at the request of senior lawyers;
  • Participating in writing legal analysis as assigned by the Company;
  • Supporting the senior lawyers, Company’s staffs in providing legal services for the clients.

Job requirements:

  • Having Lawyer’s License;
  • Having at least 03 years of legal consultancy experience in the fields of business and investment law, of which there is at least 01 year of litigation experience;
  • Having good teamwork skill;
  • Having good consulting and presentation skills in Vietnamese and English;
  • Having good manner, communication and problem solving skills;
  • Knowing how to use the basic functions of word processing and presentation software (MS Word, Excel, Power Point);
  • Being responsible and being able to work under pressure;
  • Graduated from law university, economic law field with good/very good grade, master’s degree in law will have advantage in evaluating employment applications.

Benefits:

  • Being directly involved in handling work records under the guidance of the Company’s senior lawyers;
  • Working in a professional, dynamic and friendly environment;
  • Being guided and trained by Company’s senior lawyers in counseling and practicing law skills;
  • Attending national and international forums and conferences organized in Vietnam to expand knowledge and relationship;
  • Salary according to capacity/agreement;
  • Other benefits under the provisions of laws on labor and social insurance;
  • Benefits according to the Company’s regulations;
  • Career advancement opportunities.

II. POSITION: ADVISORY LAWYER AND LEGAL ASSISTANT – Quantity: 01 Advisory Lawyer and 02 Legal Assistants.

Job description:

  • Doing legal consulting works in general;
  • Doing legal research and preparing legal memorandum; drafting legal advice at the request of senior lawyers;
  • Participating in writing legal analysis as assigned by the Company;
  • Supporting the senior lawyers, Company’s staffs in providing legal services for the clients.

Job requirements:

  • Having at least 03 years of legal consultancy experience for Advisory Lawyer position.
  • Graduated or being a final year Law student for Legal Assistant position. Having experience in internship or working at law firm’s/lawyer’s offices is an advantage;
  • Working full-time;
  • Being good at four English skills and computer science;
  • Having good communication and teamwork skills;
  • Being honest, disciplined, dedicated to work;

Benefits:

  • Being directly involved in handling work records under the guidance of the Company’s senior lawyers;
  • Working in a professional, dynamic and friendly environment;
  • Being guided and trained by Company’s senior lawyers in counseling and practicing law skills;
  • Attending national and international forums and conferences organized in Vietnam to expand knowledge and relationship;
  • Salary according to capacity/agreement;
  • Other benefits under the provisions of laws on labor and social insurance;
  • Benefits according to the Company’s regulations;
  • Career advancement opportunities.

III. POSITION: MARKETING/DEVELOPMENT STAFF – Quantity: 01

Job description:

  • Making plans and organizing marketing programs under the direction of the Company’s leaders;
  • Managing customer service (except professional work);
  • Being in charge of managing content for websites and other PR tools of the Company (in collaboration with IT and lawyers);
  • Searching and scheduling conferences, marketing events for lawyers, joining with lawyers in the events to promote the Company’s name;
  • Managing posting schedules for magazines, legal updates, etc…
  • Updating company’s profile, CV of the personnel, etc…

Job requirements:

  • Being good at four English skills and computer science;
  • Being good at web management is an advantage;
  • Having good appearance, communication skills and relationships;
  • Having at least 3 years of experience in marketing or office management.

Benefits:

  • Working in a professional, dynamic and friendly environment;
  • Salary according to capacity/agreement;
  • Other benefits under the provisions of laws on labor and social insurance;
  • Benefits according to the Company’s regulations;
  • Career advancement opportunities;

IV. APPLICATION REQUIREMENTS FOR ALL POSITIONS:

Application dossier (in English or in Vietnamese):

  • Job application;
  • CV for the vacant position (attached with a personal photo in the last 01 year).

Submission:

  • Directly at the head office of the Company:

Floor 3, 20 Tran Hung Dao Street

Hoan Kiem District

Ha Noi

Deadline: By the end of 15th July 2019.

Expected Interview schedule: From 15th to 20th July 2019.

Contact: If you have any questions, please contact:

  • Hai: 096 371 8558
  • Huyen: 091 290 8579

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