The 66th Asian Business conference in Danang

On July 4th, 2019 the People’s Committee of Da Nang organized the 66th Asian Business Conference about business cooperation between Vietnam and Japan. Representatives of 60 Vietnamese enterprises and 130 enterprises from Japan attended showing intersts in economic cooperation.

The representatives of Japanese companies provided many useful information about business investment cooperation opportunities in the fields of information technology, high technology, health, education …After 45 years from the establishment of diplomatic relations, Japan has become one of the Vietnam’s leading partner in many areas, becoming the largest ODA provider, and the second largest FDI investor in Vietnam.

Japan is leading countries investing in Da Nang with more than 180 projects and the total investment capital is nearly 890 million USD, focusing on the fields of industrial production, high technology, services, real estate and travel. The Da Nang’s enterprises in supporting industries, IT, textiles, fisheries, education … are always willing to cooperate with Japanese partners to expand markets, access technology and new management system.

It is obvious that Japan is one of strategic partners, a key market with strong financial and public potential, including high-tech industry, information and communication technology and supporting industries as well as services and education sectors. The city government always strives to create favorable conditions for Japanese investors to establish and implement effective projects, as well as implement solutions to improve the city’s investment environment such as infrastructure construction, high-tech parks and centralized information technology zones, planning new industrial parks with attractive investment preferential policies, promoting administrative procedure reforms and focusing on human resource training qualified, skilled … to meet the demand of the investors.

The Conference creates opportunities for interaction and discussions between Vietnamese enterprises and Japanese enterprises, between Da Nang city and investors in area of manufacturing, construction, healthcare, tourism, education, science and technology.

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Da Nang to Cooperate with Singapore in Foreign Direct Investment

On July 19th,2019, Da Nang City People’s Committee held a “Singapore-Danang Investment Connection Seminar”, which leaders of the city’s departments and sectors met many major companies from Singapore under the Singapore Business Federation and Singapore Business Development Agency’s arrangement with purpose of seeking investment opportunities in Da Nang taking advantage of the dynamic city which investors from Singapore could set up company and make direct investment.

Singaporean businesses appreciated the model of building and developing the smart city of Da Nang and the achievements in socio-economic development of Da Nang in recent years, including digitizing government and protecting the environment in Da Nang.

Singapore is well-known as a country that has developed strongly in socio-economic achievements, has plans for environmental protection, pollution treatment, high-tech development and tourism. These are the business lines that Danang needs to develop for the purpose of building the city in the future.

Currently, many Singaporean businesses have chosen Vietnam as an investment destination and are willing to cooperate with Danang in many business lines such as banking finance, education, information technology, etc. The leaders of Da Nang always appreciate Singapore’s experience of building smart country, innovation and start-up businesses; at the same time, they emphasized that Singapore is a potential market that Da Nang city focuses on investment promotion in the coming time.

Singapore is the 4th country in total of FDI investors in Vietnam, the total investment capital in the first 6 months of 2019 from Singapore is 2.119 million USD and is the 3rd largest country in terms of FDI in Vietnam, with a total investment capital is 49,161 million USD. Investors invested in many business lines such as manufacturing technology, wholesale, retail, information technology,

Da Nang wishes to attract many Singaporean investors who will choose the city as the place to invest in the future. The leader of the city always strives to create the best conditions for Singaporean investors to invest in the city, in order to achieve socio-economic development in the future.

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Non-Compete Agreement In Labor Contract

The principle “freedom to work” is recognized and respected by the Labor Code 2012. However, this regulation may harm legitimate business interests of employers when employees, during the performance of the labor contract or especially after the termination of the labor contract, reveal the business or technology secrets to compete with the employers. Therefore it is necessary to create the limits on the freedom to work, for the purpose of preventing workers from revealing employers’ business or technology secrets. Law in many countries around the world has recognized “Non-Compete Agreement” as a tool to enforce security programs.

The Labor Code 2012 and sub-law documents do not mention to the definition of “Non Compete Agreement”, but make the provision that: “When an employee performs a job which is directly related to business or technology secrets as prescribed by law, the employer may reach a written agreement with the employees on the content and duration of protection of business or technology secrets, and benefits and compensation in case of violation by the employees”.

The definition of “Non-Compete Agreement” is inferred by explaining the provisions of law and referred to the articles of legal experts. “Non-Compete Agreement” is a legal contract between an employee and an employer, for a purpose of preventing the worker from competing directly or working for a competitor during the performance of the labor contract or especially after the termination of the labor contract. Thereby, we can infer that only when employers have business or technology secrets, they have the right to make Non-Compete Agreement. Moreover, the legitimate business interests that are protected must be legal, unique, influence the maintenance, stability and development of business activities.

Analyzing the provision “Non-Compete Agreement”, we can conclude that, the employees adjusted by the “Non-Compete Agreement” is the worker who is directly involved in business or technology secrets (such as the senior managers, senior technicians and others are obliged to keep business or technology secrets). The Labor Code 2012 has regulated that the “Non-Compete Agreement” must be on text.

The provision of Non-Compete Agreement is necessary for employers to protect business or technology secrets, but it is difficult for workers to find job after the contract terminates. Therefore, Non-Compete Agreement should balance the interests between employers and employees by setting reasonable limits in time, geographic scope and particular industry or activity.

(i) For restriction on time, the Labor Code 2012 does not specify restriction period or the point of starting restriction period. This is entirely upon the parties. However, Non-Compete Agreement can not be enforced unless it specifies a reasonable restriction period. Referring to the law of some European countries (Germany, France) and Asian countries for example in China, the maximum restriction time is 02 years, to ensure that employees have conditions to find new jobs.

Moreover, it provides opportunities for employers to motivate, improve the technology and business secrets to develop. On the other hand, law in some other countries distinguishes between highly skilled workers (group 1) and unqualified employees (group 2). Spanish law is a typical example, the maximum restriction period is two years for workers in group 1 and six months for group 2.

(ii) Restriction on geographic scope is not regulated in Vietnamese law. Meanwhile, most countries such as France, China and Russia all regulate that the restriction is on the whole country. However, due to differences in society, economic and education conditions, Vietnam can hardly regulate like that. On the other hand, when making the provisions of the restrictions on geographic scope, it is necessary to base on the performance of the company, the method of production, the size of and the type of company.

(iii) For restriction on particular industry or activity, most courts tend to consider the work that employees will work in the new labor contract. Normally, if the new job is similar to the old one, it will not be approved by the court. Under the Labor Code 2012, the content of restrictions on particular industry or activity when employees enter into agreement include: (i) obligation to keep trade information confidential (business secrets, technology secrets) ; (ii) not be able to work for the competitor of former employers or to conduct his own business competing with former employers.

Labor Code in our country does not specify the scope of the restriction on particular industry or activity, it depends entirely on the will of the parties. Non-Compete Agreement can not be applied to all jobs, but only to those who hold business and technology secrets. For every type of work there will be a different range of restrictions. The scope of the restriction is not exceeding the employees’ professional capacity and ensuring the opportunity of works in the future.

The benefit that employees receive when signed the Non-compete Agreement can be the opportunity for promotion, high salary, and commendation if the Non-Compete Agreement is made while the labor contract is valid. If the Non-Compete Agreement is applied after the labor contract terminates, employees shall receive the compensation. The amount of compensation is upon the agreement of the parties and must be satisfactory with the restriction of job opportunities. There are some cases that employees may not be entitled compensation are to violate the Non-Compete Agreement or die or prison sentence.

According to the Labor Code 2012, in case of violating the non-compete contract, employees have obligation to compensate, but it does not give specific compensation amount as well as the method of compensation. In order to claim compensation, employers must demonstrate these following factors: (1) the violation of the Non-Compete Agreement; (2) actual damage (the lost revenue and profit of the employer); (3) the causal relationship between the infringement and the damage; (4) fault of the employee. The amount of compensation must correspond to the amount of lost revenue or profit. In addition, employees must return the non-owned assets that are exploited and developed to compete with former employers. Moreover, employees must repay the compensation and other benefits paid by former employers if agreed in the agreement.

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Employee Subject to Unilateral Termination of the Labor Contract Could Claim Unemployment Insurance

Unemployment insurance is a measure to assist workers in a market economy. In addition to providing financial support to stabilize the lives of employees during the period of unemployment, the main purpose of unemployment insurance is to help the unemployed to find a suitable and stable job, through vocational training, counseling and job referral.

Work permit in Vietnam

When the labor contract is unilaterally terminated by the employee, the employee does not need to have a certificate from the employer that the legal termination is legal, to be eligible for Unemployment Insurance (UI).

Within 03 months since the date of termination of the labor contract, the employee who doesn’t obtain a new job and wish to receive UI only need to submit an application for unemployment insurance and one of the document following documents:

i) The labor contract or contract has expired or has been completed under a labor contract;

ii) Resignation decision;

iii) Decisive dismissal;

iv) Disciplinary decision on dismissal;

v) Notice or agreement to terminate the labor contract or contract of employment.

The unemployed shall receive a Decision on unemployment insurances within 15 working days from the filing date. From the 16th day, the unemployed shall be entitled to unemployment insurance as requested.

We at ANT Lawyers constantly follow the changes in the labour to provide legal update to clients

Unemployment insurance is a measure to assist workers in a market economy. In addition to providing financial support to stabilize the lives of employees during the period of unemployment, the main purpose of unemployment insurance is to help the unemployed to find a suitable and stable job, through vocational training, counseling and job referral.

When the labor contract is unilaterally terminated by the employee, the employee does not need to have a certificate from the employer that the legal termination is legal, to be eligible for Unemployment Insurance (UI).

Within 03 months since the date of termination of the labor contract, the employee who doesn’t obtain a new job and wish to receive UI only need to submit an application for unemployment insurance and one of the document following documents:

i) The labor contract or contract has expired or has been completed under a labor contract;

ii) Resignation decision;

iii) Decisive dismissal;

iv) Disciplinary decision on dismissal;

v) Notice or agreement to terminate the labor contract or contract of employment.

The unemployed shall receive a Decision on unemployment insurances within 15 working days from the filing date. From the 16th day, the unemployed shall be entitled to unemployment insurance as requested.

We at ANT Lawyers constantly follow the changes in the labour to provide legal update to clients

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Hau Giang Reduces 50% Investment Licensing Time

Hau Giang province affirmed to speed up administrative procedures reformation, reducing 50% of the time for granting investment licenses and business registration, creating favorable conditions for investors when they set up business.

Foreign InvestmentLawyers in Vietnam

In which, Hau Giang province is calling for investment in 7 key projects, including industrial zone infrastructure development, hi-tech agriculture and ecotourism… with a total investment of nearly 300 million USD.

According to the vice chairman of Hau Giang People’s Committee, besides the policies in accordance with general regulations, localities also have their own incentive mechanisms for investors such as tax incentives, land rent exemption and reduction, investment support for manufacturing, preservation and processing facilities…, especially projects for sustainable development of agriculture and high technology application…

Furthermore, Department of Planning and Investment of Hau Giang province affirmed that the local authorities will shorten the maximum time for carrying out procedures, creating favorable conditions for enterprises and investors. Specifically, the business registration procedure is 3 days according to the law, but the locality can complete in 1.5 days. Regarding the investment policy, the law regulates 32 days but it is shortened to 15 days by the locality; time to receive and appraise for issuing investment certificate is only 3 days; discounted 2 days as prescribed.

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Construction Contract in Vietnam

In Vietnam, like other countries companies seeking to build an office building or industrial facility work with the contractor through a construction contract.

There are several types of construction contract used in the construction industry depending on the level of control from parties involved in terms of investment, responsibilities and duration.

Construction lawyers inVietnam

Fixed price is a type of construction contract that offer a total fixed priced for all construction related activities. This contract type could include incentives or benefits for early termination, or can also have penalties, called liquidated damages, for a late termination. This contract type is preferred when a clear scope and a defined schedule has been reviewed and agreed upon.

Cost plus contract is a type of construction contract involves payment of the actual costs, purchases or other expenses generated directly from the construction activity. This type of contract must contain specific information about certain pre-negotiated amount (some percentage of the material and labor cost) covering contractor’s overhead and profit. Costs must be detailed and should be classified as direct or indirect costs.

Time and material contract is usually preferred if the project scope is not clear, or has not been defined. The owner and the contractor must establish an agreed hourly or daily rate, including additional expenses that could arise in the construction process. The costs must be classified as: direct, indirect, mark-up, and overhead. Sometimes the owner might want to establish a cap or specific project duration to the contractor that must be met, in order to have the owner’s risk minimized.

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Obligations of Cosmetics Manufacturers and Importer in Vietnam

Cosmetics lawyers inVietnam

The cosmetics manufacturers and importers who are responsible for putting cosmetic on the market have the obligations as the following:

-Be responsible for all contents declared in the cosmetic product proclamation report, for the safety, the efficiency, and the quality of the product; and guarantee that the circulated products satisfy all requirements of the ASEAN Cosmetic Treaty and the Appendix of Vietnam law;

-Follow, discover, and confiscate immediately the unqualified cosmetic, as well as implement the confiscation announcement from the state authority office and inform to the state authority office about the confiscation; punctually deal with the consumer’s complaints of the cosmetic’s quality and compensate for consumer’s loss in accordance with the regulation; refund to the buyer the produced cost in the maintenance, transportation, and circulation process;

-Report to the Medicine Management department – the Health Ministry within 07 days since the date receiving the first feedback from this side-effect in case finding side-effects which are serious and could damage the consumer’s life because of the cosmetic product’s quality;

-File the Product Information File (PIF) in at least 03 years since the latest manufacture lot is put on the market and presented to the checking and inspecting functional office when requested;

-Obey the Vietnamese Regulation and Law on the intellectual ownership. When having the conclusion of the state competent offices on the intellectual-ownership law-breaking label and industrial design, the organizations, the individuals must stop manufacturing, trading, and importing in order to conduct of changing the label and the industrial design as provided, and be responsible for refunding and resolving all damages (if any).

Besides, Vietnam law also provides that the organizations which manufacture the cosmetic must deploy to apply and satisfy principles, the “cosmetic good manufacturing practice” standard of the Asian Southeast Association Nations (CGMP-ASEAN).

Last but not least, the organizations, the individuals must conduct requirements of state competent offices about checking and inspecting the cosmetic quality, confiscating the violated cosmetics, and be entitle to complaints about the conclusion and the law-breaking judgment form in accordance with the law regulation on the complaint and the denouncement.

This publication is designed to provide updated information of legal matters, and does not constitute professional advice.

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Mandatory Announcement of Cosmetic Product

Business owners being organizations and individuals responsible for launching cosmetic products on the market are only allowed to put into circulation when the competent state agencies approve and the business owners must bear full responsibility for the safety, efficiency and product quality. Competent state agencies will conduct post-trade test when the products are being sold to the market.

Cosmetics lawyers inVietnam

Cosmetics are substances or preparations used in contact with the external parts of the human body (skin, hair, nails, lips and external genital organs) or the teeth and oral mucosa with the main purpose is to clean, perfume, change appearances, form, adjust body odor, or protect body or to keep the body in good condition. The following will provide conditions and list of cosmetic types subject to mandatory annoucement.

1. Conditions to apply:

– Organizations and individuals responsible for launching the product into circulation on the market must have function to doing cosmetics business in Vietnam

– The announcement of the features of cosmetic products (intended use of the product) must satisfy the ASEAN guidelines on disclosure features of cosmetic products

2. Kinds of cosmetic that have to announce the distribution of cosmetics:

Kinds of cosmetic products must disclose the circulation of cosmetic products:

– Cream, emulsion, lotion, gel and oil for skin (hand, face, feet)

– Face mask (with the exception of chemistry peeling products)

– Tinted (liquid, paste, powder)

– Makeup powder, after shower powder, toilet powder

– Bath soap, deodorant soap

– Perfume, toilet perfume

– Products for bath or shower (salt, foam, oil, gel)

– Hair removal products

– Deodorants and anti-perspirants

– Shaving products (cream, foam, lotion)

– The makeup and makeup remover products for face and eyes

– Products used for lips

– Products for take caring teeth and mouth

– Products for nail care and adorn

– The products used to clean the outside

– Sun cream products

– Products for tanning without sun

– Skin whitening products

– Anti-wrinkle products

– Other products

Some products which are not classified as cosmetics:

Anti-mosquito products, air freshener, fabric softener, bleach, toilet, oxygen liquid, antiseptic alcohol 700, alcohol 900, denture cleaning products that are not exposed to the oral cavity, fake eyelashes, liquids to take care of eyes/nose/ears, against nasal congestion product, anti-snoring products, vaginal lubrication gel, ultrasound gel, the product in contact with the genital, rectal enema, anesthesia , reduce/control the swelling/edema, dermatitis treatment, allergy relief, anti-fungal, anti-virus products, stimulate hair/eyelash growth, the product removed/reduced fat/ reduced body size, weight loss products, prevent/stop hair growth products, stop sweating process, permanent tattoo ink, remove keloid scars reduction products, wound cleaning products.

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Energy & Resources

Vietnam is known as a rich of natural resources country. The energy industry of Vietnam has developed for a number of years but the lack of modern technology and capital, that makes Vietnam has still stalled in this potential field. By the strength of resources, cheap labor, transport, Vietnam is attracting many foreign investors to invest in energy industry. Our energy and resources lawyers in Vietnam always monitor the legal environment and keep our client posted to changes that could impact their business.

In particular, Vietnam has considerable supplies of oil, natural gas and refineries. Proven oil reserves in Vietnam amount to 3.3 billion barrels as the second-most in Southeast Asia, after Indonesia. Revenues from oil and gas contribute about 30% of Vietnam’s GDP. Vietnam Oil and Gas Group (PetroVietnam), a state-owned company is eligible to conduct petroleum activities, sign cooperation contracts and govern petroleum industry in Vietnam.

For exploration and production, sea zones in Vietnam are divided into different geographic “blocks” based on the advice of Petro Vietnam. The size and scope of these blocks can vary from year to year, depending on the scale of the activities undertaken by the company currently assigned to it. According to Law on Petroleum 1993, amending in 2000 and 2008, to participate in this field, the investors have to join the bidding for researching and exploiting petroleum. In special case, the Vietnam Government may appoint the contractor to select investor wishing to engage in petroleum. Then the investor must enter into a dividing products or joint venture or other contract in which contents all terms as required by Article 15 (amended), managed by Vietnam Government. This contract’s term shall not exceed 25 years in which period of research and exploration not exceed 5 years. The duration may be extended 5 years for the contract and 2 year for period of research and exploration. In case projects encouraged to invest in petroleum and exploring natural gas, the term can be 30 years and 7 years for period of research and exploration.

Taxation for petroleum activities is based on type of natural resources exploited, economic, technical conditions of the mines, the amount produced. According to law on Petroleum and other provisions on taxation, natural resources tax rate is from 4% to 25% for crude oil, 0% to 10% for natural gas. To ensure the reserve aiming to domestic demand, Vietnam has regulated export rate for natural resources, especially tax rate at 20% for crude oil and coal. This regulation was implemented to encourage companies in Vietnam to refine crude oil in country as the new refineries come online.

Vietnam has more potential in petroleum and energy industry. ANT Lawyers research and advise clients in energy and resources regulations in Vietnam. Our relationship and collaboration with with international lawyers and law firms in different part of the world, especially major oil and energy production areas in the Middle East, former Soviet Union countries give us advantage in assisting international clients in the energy and resources legal matters. ANT Lawyers is the Vietnam exclusive member of Prae Legal, a global law firm network which allow us to take on international projects.

How ANT Lawyers Could Help Your Business in Vietnam?

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Marriage Involving Foreigners in Vietnam

Cross culture marriage in Vietnam is getting more popular due to the further integration of Vietnam into world’s economy and people relocation for better living.

It is understandable that a foreigner who works and lives in Vietnam wishing to register marriage with a Vietnamese or even another foreigner under Vietnam laws.

However, it is challenging for foreigners to be aware of the legal provisions governing the issue of marriage involving foreign elements in Vietnam. The parties involved in the marriage should to go through not so simple administrative procedures, because of the complexity of managing and protecting the legitimate rights of not only Vietnamese citizens, but also foreigners, to be governed under the Law on Civil Status. It is not unfamiliar when husband and wife agree to sign prenuptial agreement, agreements on personal assets and properties, and agreements to separate assets and properties during the marriage time.

Procedures for Registration of Marriage in Vietnam

According to the current law provisions, the competence to register marriage between a Vietnamese citizen and a foreigner belong to the District People’s Committee where the Vietnamese citizen is residing. In addition to papers relating to declarations and documents that must be prepared, in order to marry a Vietnamese citizen, a foreigner have to submit papers proving their marital status issued by a competent authority of the country which he/she is a citizen. The certificate issued no more than six months, up to the time of application, confirming the current no spouse. In case, foreign law does not provide for the granting of papers certifying the marital status, the papers shall be replaced by the foreign competent bodies certifying that such persons meet all the marriage conditions under the laws of that country. Documents, papers issued by the competent authority of the foreign country must be notarized, legalized and authenticated.

After submitting complete, and valid dossiers and paying the necessary fees, if the marriage conditions are fully met, the chairperson of the District People’s Committee will approve the application. Upon marriage registration, both husband and wife must be present at the head office of the People’s Committee, and both will sign in the marriage certificate.

Foreigner’s Challenges?

To register marriage involving foreign in Vietnam, foreigners must have a marital status documents issued by a foreign competent authority where he/she is a citizen. Depending on the country, the paper proving citizen’s marital status issued to citizens when they apply for marriage registration is different. Most of the difficulties the foreigners encountered are the application for the issuance of papers abroad and at the same time they must carry out administrative procedures for the legalization of that document at the competent authority in Vietnam. Thus, the time required to prepare necessary documents and documents is generally long with strict administrative procedures.

In fact, marriages involving foreign couples encounter procedural difficulties and take a considerable amount time for preparation.

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