How to Resolve Disputes Settlement through Arbitration in Vietnam?

How to Resolve Disputes Settlement through Arbitration in Vietnam?

Arbitration, mediation, negotiation, and litigation are all methods of dispute resolution. In order to resolve disputes, a litigation dispute law firm in Vietnam needs dispute lawyers who have the expertise and experience necessary to resolve complex cross-border, commercial, and civil disputes.

Most business agreements could include a provision stating that disputes must be resolved through arbitration in the current business environment. A valid written arbitration agreement, either as an arbitration clause in a contract or a separate agreement, is required for a dispute to be referred to arbitration. The arbitration clause is treated as independent if it is included in a contract, and the arbitration clause's validity is unaffected by contract modifications, extensions, or terminations. As long as the parties clearly state their intention to resolve any dispute through arbitration, Vietnamese law permits a written arbitration agreement to take any form. The residing court is required to drop the case if a dispute falls within the scope of a valid arbitration agreement and a party attempts to initiate court proceedings. Additionally, the arbitration organization authorized to resolve disputes without supplemental agreement is not required to be specified in an arbitration agreement. Even if there is a valid arbitration agreement, the Vietnamese Arbitration Law states that a dispute must also fall into one of three categories before it can be arbitrated:

(1) disputes arising from “commercial activities”;

(2) disputes where at least one party is engaged in commercial activities;

(3) other disputes where the law stipulates that arbitration is a permissible means of resolution.

The definition of the term "commercial activity" in category (1) can be found in Commercial Law No. “activity for profit-making purposes comprising the purchase and sale of goods, provision of services, investment, commercial enhancement, and other activities for profit-making purposes,” according to 36-2005-QH11 (31 December 2005). Noncommercial disputes, such as civil disputes, in which at least one party is engaged in commercial activities, frequently fall into the second category. However, disputes between consumers and providers of goods or services do not fall under this category. The law stipulates that the party may select arbitration or litigation in this instance. The dispute cannot be arbitrated without the consent of the consumer, even if the agreement includes a standard arbitration clause in the contract for the supply of goods or services. Legislators have complete discretion over whether or not to expand or maintain the categories of disputes that can be resolved through arbitration. A dispute arising from investment activities governed by the Law on Investment is an illustration of a dispute in category (3).

Due to the fact that many businesses would rather avoid the high costs of litigation, arbitration has grown in popularity.

Arbitration lawyers in Vietnam at ANT Lawyers - a Vietnam law firm with accreditation in national and international arbitration practice can assist in providing clients with legal advice and guidance throughout the process of resolving disputes. The intervention attorneys could likewise exhort the clients on different issues from decision of authority, decision of assertion rules, specially appointed or institutional discretion, spot of mediation, implementation of arbitral honor. 

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How Do I Get a Business Registration Certificate in Vietnam?

How do I Get a Business Registration Certificate in Vietnam?

Each association and individual wishing to set up an unfamiliar claimed organization in Vietnam will have to meet a few particulars conditions as declared under the Law on Venture and Regulation on Big business. The investor will also need to check with the law governing the investment area in certain areas that are being considered as conditional investments. The investor must submit an application for business registration once the investment registration certificate is completed.

The following is a description of the procedure for applying for a certificate of enterprise registration for a limited liability company or joint stock company with two or more members:

Dossiers:

i) Application form for enterprise registration

ii) The company’s charter.

iii) A list of founding shareholders and shareholders being foreign investors/ a list of capital contribution members.

iv) Valid copies of:

Copies of the ID cards or other forms of identification for individuals who are founding shareholders and foreign investors or members; list of organizations that are authorized representatives of foreign shareholders.

The decision to establish the organization, the business registration certificate, or another similar document, along with the authorization letter; the identification cards or other forms of identification used by organizations' authorized representatives, such as founding shareholders and foreign investors.

A copy of the certificate of business registration or an equivalent document must be notarized, legalized, and authenticated if the shareholders are foreign organizations.

The foreign investors' Certificate of Investment registration, as required by the Investment Law.

State Authority: Business registration office of the province where the enterprise’s headquarters is situated.

Period: within 03 working days from the full receipt of the dossiers

Result: Business enrollment office will give the authentication of big business enlistment or on the other hand on the off chance that the application isn't palatable, business enrollment office will advise the candidate regarding important corrections and supplementation to organization.

The government of Vietnam generally supports direct foreign investment. In the event that the financial backer countenances difficulties at state authority, whom don't give notice or solicitation of supplementation to the application for big business enrollment, the financial backer virus hold up a grievance as endorsed by guidelines of regulation on protests and reprimand to the state power to safeguard its right in carrying on with work and interest in Vietnam. The investor could benefit from the assistance of a law firm in Vietnam with expertise in both business registration certificate and dispute resolution.

The venture is qualified for carry on with work from the issuance date of the endorsement of big business enlistment. Businesses are permitted to participate in conditional business lines if they meet all requirements and are able to maintain compliance with those requirements throughout their operations.  

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How to Start a Business in Vietnam?

How to Start a Business in Vietnam?

In recent years, Vietnam has become an attractive destination for foreign investment thanks to its advantages of security, political stability, and favorable geographical position to trade with the world. This is both the connection center of the region and the gateway to penetrate the economies in the western region of the Indochina Peninsula. In addition, the Vietnam government has increasingly been offering more preferential policies to create favorable conditions for foreign investors to start doing business in Vietnam.

To start a business in Vietnam, investors first need to choose for themselves an appropriate type of business based on the number of capital contributors, the amount of capital contributed, and the business’s purse. According to the provisions of Vietnam law, foreign individuals and organizations can establish a limited liability company or a joint stock company or a partnership or a private enterprise.

The next issue that needs to be considered is the business line. In order for the company to be able to operate, the company must register the appropriate business lines, related to business activities. If the selected line of business does not require conditions, the enterprise can go into operation after the establishment of the company. This is considered non-conditional business area which most of company would do. However, if the investor chooses a conditional business line to do business, the enterprise must meet the necessary requirements, apply for a business license as prescribed, and then go into operation. This is considered conditional investment area where there are some restrictions being required license, minimum charter capital, foreign ownership ratio…

Investors also need to choose a location for their business, which is legally allowed to conduct business activities. The company address must be located in the territory of Vietnam, and comply with requirement corresponding to purpose of business i.e. company address can not be in an apartment building or a dormitory for living purposes only; factory location has to be at proper zone for industrial purpose…

In order to serve the management of the State and facilitate business activities, newly established businesses need to have their own name and this proper name must be unique, not be the same or similar to previously registered businesses. Enterprises are not allowed to use the names of functional agencies, state management agencies to name the company. The name of the business must include the type of company and proper name. To avoid duplication with other companies, businesses can use abbreviations or English names, but must ensure that the company name will not cause confusion, without adding prefixes, suffixes or cultural symbols in the name of the business.

The investors need to apply for an Investment Registration Certificate at a competent authority in Vietnam. This is a mandatory procedure for all projects that want to establish a new legal entity in Vietnam. The processing time for an investment certificate application is around 30 days depending on the specific project. After being granted an Investment Registration Certificate, foreign individuals and organizations need to prepare an application for an Enterprise Registration Certificate at the Department of Planning and Investment which would take around 7 days. Completing this procedure, the enterprise has the legal status according to the provisions of the Law on Enterprises of Vietnam.

From day one since commencing its operation, the company could by itself or hire professional to assist with monthly compliance service i.e., submit foreign labour reports, submit investment report, submit tax report, submit health and insurance reports to authorities to avoid encountering penalties.

ANT Lawyers – a law firm in Vietnam will always follow up with authorities for legal update on matters relevant to investment registration or doing business  in Vietnam.

Source ANT Lawyers : https://antlawyers.vn/library/how-to-start-a-business-in-vietnam.html  

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When Labour Dispute over Bonus Issue Arise and How to Resolve?

When Labour Dispute over Bonus Issue Arise and How to Resolve?

According to the provisions the Labor Code, the bonus, also known as the “other supplement”, is one of the main contents of the Labor Contract. Specifically, bonus is understood as a sum of money paid by an employer to the employees on the basis of annual business results and the level of work performance of employees. When the dispute arises, the employer or the employee could consult with labour dispute lawyers in Vietnam to handle the matter effectively.

Related post: How to Resolve Disputes in Labour in Vietnam?

Bonus regulations of each company must be decided and publicly announced by the employer at the workplace after consultation with the representative organization of the grassroots-level employees’ collective. However, there are companies that do not specify bonus regulations or companies with unclear bonus regulations referring to such generally as “based on capability”, or “based on work results” without referring to specific key performance indicator (KPI). Such regulations will easily cause labor disputes. In most of the case, the employee would face disadvantage because the employer will be the one whom make the final decision on whether or not the capability or work results are satisfied.

A labor dispute means a dispute over rights, obligations and interests among the parties during the establishment, execution or termination of labor relation; a dispute between the representative organizations of employees; a dispute over a relationship that is directly relevant to the labor relation. Labor disputes over bonuses can be individual labor disputes or collective labor disputes. The competence authority to settle labor disputes belongs to the Labor Mediator, the Labor Arbitration Council, and the People’s Court. Normally, individual labor disputes or collective labor disputes must go through the mediation procedure of the labor mediator before referring to the court to settle, unless otherwise provided for by law.

For individual disputes, in case the conciliation is unsuccessful or either party fails to implement the agreements in the minutes of successful conciliation or the settlement time limit expires but if the labour conciliator fails to conduct conciliation, each disputing party has the right to request a court or arbitration council for settlement.

For collective disputes over bonuses, in case the conciliation is unsuccessful or one of the two parties fails to implement the agreements in the minutes of successful conciliation, the parties have the right to request the President of the district-level People’s Committee to resolve the dispute. If the parties disagree with the decision of the President of the People’s Committee of the district or beyond the time limit but the President of the People’s Committee of the district does not settle, the parties have the right to request the Court to settle. In such situation, a litigation lawyer would be engaged to assist for productive result. 

ANT Lawyers – A law firm in Vietnam, always follow up the labour matters to update clients on regular basis.

 Source ANT Lawyers : https://antlawyers.vn/library/when-labour-dispute-over-bonus-issue-arise-and-how-to-resolve.html 

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What Are the Procedures of filing PCT Patent Application in Vietnam?

The Patent Cooperation Treaty (Patent Cooperation Treaty) abbreviated as PCT was signed on June 19, 1970 in Washington. The PCT came into effect on June 1, 1978, and Vietnam joined the PCT on October 3, 1993. PCT allows an invention to be protected in multiple countries simultaneously by making a single international patent application instead of making multiple patent applications in many separate countries or regions. Intellectual Property lawyers in Vietnam could help client understand the procedures of filing PCT patent application in Vietnam and its advantages.

What Are the Procedures of filing PCT Patent Application in Vietnam?

Similar to the provisions of Vietnam Law on Intellectual Property rights, in order to be granted an invention protection title under the PCT, a registered invention must meet the following requirements: novelty, qualified innovative and capable of industrial application.

A dossier for patent registration under PCT of Vietnamese origin includes the following documents:

-The PCT application of Vietnamese origin to be made in English (03 copies);

-Description (02 copies, including drawings, if any);

-Claims for protection (02 copies);

-A copy of the payment receipt (in case of payment of fees and charges via postal service or directly into the account of the National Office of Intellectual Property);

-Relevant documents (if any).

Patent registration dossiers can be submitted in person or by post to the National Office of Intellectual Property in Hanoi or to two representative offices of the Department in Ho Chi Minh City and Da Nang. After receiving the application, the applicant can conduct an international patent search at the competent search offices (national or regional patent office that meets the requirements set forth by the PCT and designated by the PCT General Assembly). PCT applications originating from Vietnam will be published in the PCT Gazette and subject to international preliminary examination. The appraisal department will prepare a preliminary appraisal report and send it to the International Bureau. At the national stage, the international application is examined for form and substantive according to the procedures prescribed for ordinary patent applications in the host country.

An important advantage of the PCT system is the provision of an additional minimum of 18 months from the expiration of the 12-month priority period, during which time the applicant can evaluate the possibility of commercializing product in different countries and decide which country to register the patent in. By filing an international application, the payment of national application fees and translation costs associated with national applications can be delayed.

ANT Lawyers – IP services in Vietnam will always follow up with authorities for legal update on matters relevant to IP law to update clients on regular basis.

Source ANT Lawyers: https://antlawyers.vn/library/what-are-the-procedures-of-filing-pct-patent-application-in-vietnam.html  

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How to Resolve Disputes in Labour in Vietnam?

How to Resolve Disputes in Labour in Vietnam?

A labour dispute is one of the most common disputes in society, in particular it means a dispute over rights, obligations and interests among the parties during the establishment, execution or termination of labor relation; a dispute between the representative organizations of employees; a dispute over a relationship that is directly relevant to the labor relation. In fact, labour disputes happen often, but there are many situations where employees often have little understanding of their rights, leading to disadvantages if the employer does not know or does not follow the law. Therefore, identifying labour disputes is very important. For employees, learning about labor law is to know their rights. Employers need to understand labor laws to ensure compliance. Both employees and employers can consult a dispute lawyer in labor to protect their rights.

For example, during the recent epidemic, many businesses faced difficulties in doing business and hence many common labour disputes arisen. For workers, a dispute could arise from not being paid on time. Other concerns are whether there is any violations that lead to the termination of the labor contract?  Has the employer carried out restructuring procedures and notified state agencies according to the correct procedure before terminating the labor contract with the employee? Does the employer have an agreement with the employee before suspending the labor contract during the pandemic? When the business is not efficient, is the employer required to pay the 13th month salary to the employee?

At present, labour disputes are classified into different types based on the object who participated in the dispute: Labour disputes between the employee and the employer; labour between the employee and the organization that sends the employee to work overseas under a contract; labour dispute between the outsourced worker and the enterprise. Right-based or interest-based collective labour disputes between one or several representative organizations of employees and the employer or one or several representative organizations of employees.

The labour dispute settlement process must follow the following principles: Respect the parties’ autonomy through negotiation throughout the process of labour dispute settlement; Prioritize labour dispute settlement through mediation and arbitration on the basis of respect for the rights and interests of the two disputing parties, and respect for the public interest of the society and conformity with the law; The labour dispute shall be settled publicly, transparently, objectively, promptly, and lawfully; Ensure the participation of the representatives of each party in the labour dispute settlement process; Labour dispute settlement shall be initiated by a competent authority or person after it is requested by a disputing party or by another competent authority or person and is agreed by the disputing parties.

When a labour dispute arises, one party or parties may request a Labor Mediator; The Labor Arbitration Council or the People’s Court to settle the disputes. Matter on time limit is an important matter that the parties should pay attention. The time limit to request a labor mediator to settle an individual labour dispute is 06 months from the date on which a party discovers the act of infringement of their lawful rights and interests. For the form of dispute settlement through the Labor Arbitration Council, the time limit is 09 months from the date on which a party discovers the act of infringement of their lawful rights and interests. In case of requesting the Court to settle the labour dispute, the time limit is 01 year from the day on which a party discovers the act of infringement of their lawful rights and interests. Many of the labour disputes could be resolved effectively at court hence engaging a labour dispute lawyers in Vietnam to file a lawsuit will help parties involved.

Please note, upon the expiration of the above-mentioned time limitation, the disputing parties will not have the right to request the competent authorities to resolve the dispute. In case the requester is able to prove that the aforementioned time limits cannot be complied with due to a force majeure event or unfortunate event, the duration of such event shall not be included in the time limit for requesting settlement of individual labour dispute.

ANT Lawyers – A law firm in Vietnam, always follow up the labour matters to update clients on regular basis.

Source ANT Lawyers: https://antlawyers.vn/library/how-to-resolve-disputes-in-labour-in-vietnam.html  

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Cancellation Against of Trademark

Cancellation Against of Trademark in Vietnam

It typically takes a significant amount of time and effort on the part of your business to win customers' confidence in your products and trademark. However, if there is another trademark for the same goods that is identical to yours, it will likely cause customers to make mistakes or become confused, resulting in a number of negative effects for your business, including a decrease in sales, a loss of reputation, and the ability to distinguish yourself.

In fact, after partnering with domestic businesses to distribute or sell goods, many international businesses discover that their trademarks are stolen by partners who register their trademarks for intellectual property protection in national offices. It is simple for trademark thieves to steal trademarks because each nation protects trademarks differently.

You should ask the Vietnam Intellectual Property Authority to cancel the trademark that was used in violation of your rights and benefits. ANT Lawyers would like to assist you in canceling against a trademark in Vietnam in the following ways because they have excellent IP experience in Vietnam and a highly professional staff.

Cancellation against of trademark in Vietnam

A certificate of trademark registration may be revoked entirely or partially at the request of a third party in accordance with Article 96 of the IP Law of Vietnam.

In the specified circumstances, the applicant may submit a written request to the National Office of Intellectual Property (NOIP) to cancel protection titles subject to payment of fees and charges.

Period for filling cancellation request

To request cancellation against of trademark in Vietnam due to the Applicant’s bad faith: the period for lodging such a request is the whole term of a Protection Title.

To request cancellation against of trademark in Vietnam due to other legal reasons: the period for lodging such a request is within 5 years as from the granting date.

The case for cancellation against of trademark in Vietnam

Any third party may request that a certificate of trademark registration be revoked entirely or partially in the following circumstances:

The registration applicant does not possess the right to register an invention, industrial design, layout-design, or mark, nor has this right been granted to them;

At the time the protection title is granted, the subject matter of industrial property does not meet the protection conditions.

Required documents

Proofs (if any);

Power of attorney;

Written justification of the request, including relevant documents and clearly stating the protection title's serial number, reason, and contents for terminating or canceling a portion or the entire protection title.

Time and procedures for cancellation against of trademark in Vietnam

In the event that a third party makes a request to have their trademark protection title revoked, the NOIP is required to provide the protection title holder with written notice of the third party's opinions and set a response deadline of two months from the date of notification.

The NOIP must decide whether to cancel all or a portion of the protection title or notify the parties of its refusal to cancel the trademark protection title after taking the opinions of the parties into consideration.

The requester or a party involved may file a complaint regarding the decision or the relevant notice if they disagree with the NOIP's handling of the request for cancellation of the trademark protection title

Within two months of its signing, a decision to cancel a trademark protection title must be published in the Industrial Property Official Gazette and added to the National Register of Industrial Property.

ANT Lawyers - IP Services in Vietnam firm that regularly informs clients of legal developments pertaining to trademarks by following up with authorities.  

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