The Regulation on Science and Technology Enterprises in Vietnam

The science and technology enterprises (S&T Enterprises) means an enterprise implementing production and business science and technology service to make a goods or product from results of science research and technology development. The S&T Enterprise’s operation is based on the successful application and exploitation of research process in itself or the results of scientific and technological research from the scientists, organizations or research results transferred from abroad that they have the lawful ownership use rights. The Government issued the Decree No. 13/2019/ND-CP dated on February 01^st, 2019 on science and technology enterprises.

 

The setting up of S&T Enterprises in Vietnam is only acceptable when meeting the following conditions for granting Certificates of science and technology enterprise, which is acting as operation license as well as basis for implementing the incentives and support policy for investment and takes effect nationwide: i) Established and operated under the Law on Enterprises; ii) Being able to create or apply scientific and technological results which are evaluated, appraised and recognized by competent authorities; iii) Obtaining turnover form the production of, and dealing in, products and goods created from scientific and technological results for at least 30% of the total turnover. This condition shall apply in case the enterprises is established to or more 5 years.

Certificate of science and technology enterprise is issued by the Department of Science and Technology or National Agency for Technology Entrepreneurship and Commercialization Development (NATECH) belonging to the Ministry of Science and Technology depending on each specific case.

One of the important provisions related to the S&T Enterprises of Decision No. 844/QD-TTg of the Prime Minister dated on May 18^th, 2016 on approval for “Assistance policies on national innovative startup ecosystem to 2025” stipulates for continuing to implement the Project of Vietnamese Silicon Valley. This Project have been creating the most favourable conditions for development of the S&T Enterprises and encouraging S&T Enterprises to research, improve their goods or product to meet the demands of market.

 

With the application of scientific research results and technological development into production and business activities, S&T Enterprises not only bring new high quality products which are able to compete with imported goods, but also encourage science and technology research and application into production and business. S&T Enterprises are entitled to enjoy preferential on enterprise income tax exemption and reduction; exemption and reduction of land and water surface rent; credit incentives;… and especially supporting research activities and commercialization of new scientific and technological results supplemented by Decree No. 13/2019/ND-CP.

The promotion of commercialization of science and technology results contributes actively to the development of the science and technology market, facilitates the application of research results to real life. Every year, Vietnam has thousands of research results and inventions from universities, research institutes, research centers, domestic research groups and foreign organizations and individuals registered in Vietnam. But very few research results are applied to production or commercial products on the market. In order to resolve this situation, the Vietnamese Government supports the S&T Enterprises through policies on enjoying import and export tax; use of research equipment in national key laboratories, technology incubators,… of the State; investment preferences of the Scientific and Technological Development Fund and other funds; priority to participate in projects to support the commercialization of the results of science and technology, intellectual property of the State;… as stipulated in Decree No. 13/2019/ND-CP and relevant legal documents.

 

We are a law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

 

Read More

What is the advantages and the disadvantages of licensing contract?

Licensing of industrial property rights (Licensing) is one of the legal measures to transfer technology. In accordance with Law on Intellectual property in 2005 (amended, supplemented in 2009), licensing of an industrial property rights means permission by the owner of such industrial property object for another organization or individual to use the industrial property object within the scope of the owner's right. Licensing of industrial property rights must be established in the form of a written contract. There are three types of industrial property object licence contracts: Exclusive contract; Non-exclusive contract; Industrial property object sub-licence contract, detailing:

 

Industrial design in Vietnam

-Exclusive contract means a contract under which, within the licensing scope and term, the licensee shall have the exclusive right to use the licensed industrial property object while the licensor may not enter into any industrial property object licence contract with any third party and may use such industrial property object only with permission from the licensee.

-Non-exclusive contract means a contract under which, within the licensing scope and term, the licensor shall still have the right to use the industrial property object and to enter into a non-exclusive industrial property object licence contract with others.

-Industrial property object sub-licence contract means a contract under which the licensor is a licensee of the right to use such industrial property object pursuant to another contract.

What is the advantages and the disadvantages of licensing contract?

-Firstly, for licensor, licensing can be used to access new markets that are not easily accessible. By allowing the licensee the right to market and distribute the products, the licensor can more easily enter the market; Licensing contract may stipulate measures for the licensor has the right of improvements, technical know-how and related products that will be developed by the licensee during the valid term of the contract. However, the licensor may not always claim these rights, and some countries have strict restrictions on including these types of terms in the licensing contract; Licensing is necessary if the product only sells best when combined or sold for use with another product; Last but not least, the licensing contract allows the licensor to hold ownership of the intellectual property and at the same time receive licensing fees, in addition to the profits gained from self-exploitation of such assets from products or services sold or provided by that party. 

Besides the advantages, the licensing contract also has some disadvantages for the licensor. The licensee may become a competitor of the licensor. The licensee may make the licensor make less remuneration than the business losses resulting from the competition of the new competitor; The licensee may unexpectedly request contributions, for example, for technical assistance, human resource training, additional technical data, etc. It is important that the licensing contract must clearly stipulate the rights and obligations of the parties, whereby any disagreements that occur in the future can be resolved quickly and effectively; The licensor's revenues depend on the skills, capabilities and resources of the licensee. This dependence is even greater in the case of exclusive licensing. The provisions of minimum wage and other provisions may be provided to avoid this, but this is still a concern.

-Secondly, for the licensee, the advantage of a licensing contract is allowing access to technology that has been developed or is available to apply for helping businesses access to the market more quicky; Small companies may not have the resources to do and carry out the research to supply new and higher quality products. The licensing contract allows enterprises access to technical advances that are difficult to achieve by other measures; Licensing may also be necessary to maintain and develop an established market position but be threatened by new designs or production methods. Access to new technology through a licensing contract is the best way to overcome this challenge; There may be many opportunities to get a license when combining with existing company technologies can create new products, services and opportunities in the new market.

-Regarding the disadvantage to the licensee, the licensee may have to make financial commitments to technology that is "not yet ready" for commercial exploitation, or need to modify the technology to meet its business needs; An intellectual property licensing contract may result in additional costs for the product. Many technologies integrated into products can create products with high technology content but are very expensive when publishing to market; Licensing may create technological dependence on suppliers, who may not extend the licensing contract and negotiate a licensing contract with other competitors to limit the market or to limit exploitation activities which was allowed in accordance with licensing contract.

We are a law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

 

Read More

How to Prepare Application for Anti-dumping Review

The review of anti-dumping measures on imported goods will be conducted by Vietnam Competition Authority (VCA) 12 month from the decision by Ministry of Trade and Commerce is issued.

 

Antitrust Lawyers in Vietnam

Application dossiers requesting for review of imposition of anti-dumping measures shall including (i) Application and (ii) Other documents and information deemed necessary by the requesting party, in Public and Limited version to be submitted to VCA.

The followings information must be provided by the requesting party at the submission of application for review of the anti-dumping duty imposition:

The status of dumping of imports

This section focuses on the change in the dumping status of imports into Vietnam during the period from the imposition of anti-dumping duty to the time the applicant submits the application.

The information to be provided includes, but is not limited to, expanding / narrowing the scope of the goods subject to the imposition of anti-dumping measures; Type / type of goods, producer / exporter selected to calculate the change in dumping margin, change in margin of dumping, normal price, export price for one or a group of foreign producers/ exporter (Note: The method of calculating the data must be consistent with the methodology which the VCA has guided in the dossier requesting the application of anti-dumping measures.)

Material damages or threaten to material damages

This section identifies evidence of substantial damages / threat of material damages to the domestic industry caused by imported goods dumped into Vietnam for investigation by the VCA, decide according to the actual situation.

Requesting party should provide the following information:

-The situation of importing goods

Information and data on the situation of import of goods subject to anti-dumping measures (amount and value) from the date of application of the anti-dumping measure before the submission of the dossier according to the set form and two (02) years earlier.

-Market share of similar goods domestically produced and imported goods

Comparative information on market share of domestically produced and imported goods shall be subject to dumping from the time of imposition of tax prior to the filing of the application in the form and the previous two (02) years.

-Impact of imports on domestic prices

Information on the impact of imported goods on the prices of domestically produced goods from the time of imposition of tax prior to the submission of dossiers according to the set form and two (02) years earlier.

-The situation of production and business activities of the domestic manufacturing industry

Information on production and business activities of the manufacturing industry from the date of application of the tax prior to the date of application and two (2) years before.

-Invest in upgrading machines and infrastructure to meet domestic demand

Information on fundamental changes in machinery and factory infrastructure is related to changes in capacity and capacity to meet the needs of the Vietnamese market from the time of application of the tax before submission and two (02) years earlier of the domestic industry. Data should be shown in the following table:

-Current situation of employers in the domestic industry

Number of employees (or estimated number) engaged in the production, management and distribution of domestically produced goods subject of the investigation.

-Inventory fluctuations

The amount and value of inventory requested for the application of the measure anti- dumping domestic production.

 Scope of goods subject to anti-dumping measures

Purpose, reason for requesting exclusion of products imported by the company from the scope of application of anti-dumping measures.

Information on products the company proposes to exclude from the scope of application of anti-dumping measures: HS code, technical specifications, technology, use purpose, production process, …

The list of domestic enterprises producing the same products as the imported products of the company.

List of other importing enterprises jointly importing the company’s proposed goods for exclusion.

Documents indicating the difference between the company’s products proposed exclusion and similar products domestically produced. If there are quality comparisons, please indicate the source of these quality criteria (e.g.Vietnamese standards sets, internationally recognized standards …).

Information on alternative sources of imports, the difference between those sources.

Other information, documents and evidence that the company deems appropriate to explain the exclusion of the product is appropriate.

We are a law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

 

Read More

Apply the Safeguard Measures on DAP and MAP fertilizer

DAP and MAP is complex inorganic fertilizers, with main component of nitrogen and phosphorus, whose function of lining, dressing crops and production of NPK fertilizer.

 

On March 31st, 2017, Ministry of Industry and Trade (MOIT) received Dossier requesting to apply the safeguard measures on DAP and MAP fertilizer. Requesting Party is DAP Vinachem Joint Stock Company and DAP No 2 -Vinachem Joint Stock Company. 

Anti-dumping-Lawyers-in-VietnamOn April 13th, 2017, Trade Remedies Authority of Vietnam (Investigating Body) received Dossier requesting to apply globally the safeguard measures on DAP and MAP fertilizer.

On May 12th, 2017, based on Dossier requesting to apply the safeguard measures of domestic industry, regulations of World Trade Organization (WTO) and Vietnamese Law, the Ministry of Industry and Trade (MOIT) promulgated Decision No. 1682A/QD-BCT on initiation of investigation to apply globally the safeguard measures on DAP and MAP fertilizer imported into Vietnam.

Based on conclusion from preliminary investigation showing that imported goods caused significant damage to domestic industry, MOIT promulgated Decision No. issued Decision No. 3044/QD-BCT on August 04th, 2017 on applying temporary safeguard measures on goods with HS codes as follows: 3105.10.20; 3105.10.90; 3105.20.00; 3105.30.00; 3105.40.00; 3105.51.00; 3105.59.00; 3105.90.00 with temporary tax of VNĐ1,855,790 per/ton. Temporary safeguard measures shall from August 19, 2017 to March 6, 2018.

In the final investigation phase, Investigating Body held consultations with the relevant parties, assessed socio-economic impacts of temporary safeguard measures, updated data and consulted Ministries, agencies.

The final investigation conclusion showed that the amount of imported DAP and MAP fertilizers had increased both absolutely and relatively during the investigation phase. The conclusion also showed that the imported DAP and MAP fertilizers caused price pressures and price hikes on domestic goods during 2013-16 period. Phenomenon of price pressures, price hikes continues to take place in 2017 so the selling price of domestically produced fertilizer is still lower than the production cost. Domestic fertilizer production industry suffer on all aspects such as significant reduction of quantity and sales.

Accordingly, there was increase of imported goods having impact on prices. One of the three conditions is met to apply the safeguard measures according to regulations of WTO and Vietnammese law (Three conditions are: having impact on quantity and prices of imported goods; domestic industry was significantly damaged; There is causality between the increase of imported goods and the damage of domestic industry).

On November 10th, 2017, Minister of Industry and Trade promulgated Decision No. 4236/QD-BCT on extending the deadline for investigating cases of applying safeguard measures on DAP and MAP fertilizers imported into Vietnam fertilizers for more two months before issuing the final Report. This extension is necessary to gather more information relating to the case, to consider thoroughly relevant parties’ opinion, to assess comprehensively socio-economic impact

On March 02nd, 2018, Minister of Industry and Trade promulgated Decision No. 686/QD-BCT on applying official safeguard measures on DAP and MAP fertilizer imported into Vietnam (case number SG06).

On March 21st, 2018, Investigating Body posted a notice of Implementation Guide of exemption from applying the safeguard measure.

On October 12th, 2018, Investigating Body posted a notice to receive the dossier requesting for exemption from application safeguard measure.

On May 31st, 2019, Investigating Body posted a public notice to receive the dossier requesting for final review.

On July 02nd, 2019, Investigating Body received Dossier requesting for final review from DAP Vinachem Company and DAP No 2 -Vinachem Company.

On July 10th, 2019, Investigating Body issued official dispatch on requiring the Requesting Party to supplement some relevant information.

On August 02nd, 2019, Investigating Body received dossier of supplementation information at request.

On August 13th, 2019, Investigating Body confirmed that the dossier is complete, valid in accordance with regulations of requirement of final review of safeguard measure on imported DAP and MAP fertilizer.

On September 03rd, 2019, MOIT promulgated Decision No. 2700/QD-BCT on final review of the safeguard measures on imported DAP and MAP fertilizer.

On September 18th, 2019, Investigating Body issued official dispatch no. 817/PVTM-P2 on sending final-review questionnaire of the safeguard measures on imported DAP and MAP fertilizer (ER01.SG06) to domestic production company, company importing DAP and MAP fertilizer. 

On January 13th, 2020, Investigating Body held consultations with the relevant parties to present opinion relating to the case.

On February 24th, 2020, Investigating Body completed the Conclusion of final review of safeguard measure on imported DAP and MAP fertilizer.

On March 03rd, 2020, MOIT promulgated Decision No. 715/QĐ-BCT on extending the application the safeguard measures on imported DAP and MAP fertilizers. Specifically, the applicable tax rates are as follows: from 7/3/2020-6/3/2021 safeguard rates is 1.050.662 dong/ton; from 7/3/2021-6/3/2022 is 1.029.219 dong/ton; from 7/3/2022-6/9/2022 is 1.007.778 dong/ton; from 7/9/2022 onwards is 0 dong/ton.

Based on results of review, MOIT determines the extension of applying the safeguard measures on imported DAP and MAP fertilizers is necessary to continue to prevent damage of domestic industry and to ensure the efficiency of measures, helping domestic industry to have more time to justify.

On March 13th, 2020, Investigating Body posted a notice to receive the Dossier requesting for exemption from application safeguard measure on DAP/MAP fertilizers in 2020. Enterprise shall submit the Dossier requesting for exemption at public service Portal by website  https://dichvucong.moit.gov.vn or send directly to Trade Remedies Authority of Vietnam before 5pm on April 13th, 2020.

ANT Lawyers – A Law firm in Vietnam has law offices in Hanoi, Ho Chi Minh City and Da Nang.  The lawyers at each law offices in Vietnam have consistently made valuable and important contributions to our profession through the cases we handled on daily basis to facilitate business transaction or represented our clients to access justice.

 

Read More

How do I use samples in my music without infringing copyrights?

It depends on a couple of things: how you plan to use the music and whether or not the average listener will be able to identify the samples.

 

Copyright in Vietnam

Typically, you won’t have an issue if you abide by the following:

-Only use the music for personal use (as in you make absolutely no money)

-You are performing the music live (as in you are not copying and selling the music).

-If you do distribute to the public, then the average listener can’t tell what the samples are or if your use falls under the “fair use” category.

Meeting Fair Use Requirements:

-When making this determination, the courts will consider the following points:

-Did the original owner suffer financially due to your use of their samples?

-Did you totally transform the sound to create a brand new song?

-Did you take a large portion of the original song?

-Keep in mind, many of these questions are subjective and it’s not a clear cut situation by any means.

When it doubt: Ask permission. This is the absolute easiest way to avoid any kind of litigation. Reach out the the original owner and simply ask them if you can use a sample of their music to incorporate in your own. Usually you will need to obtain permission from the copyright owner of the song (publisher) and the copyright owner of the master tape (record company).

Source: Quora

ANT Lawyers – A Law firm in Vietnam has law offices in Hanoi, Ho Chi Minh City and Da Nang.  The lawyers at each law offices in Vietnam have consistently made valuable and important contributions to our profession through the cases we handled on daily basis to facilitate business transaction or represented our clients to access justice

 

Read More

What are Conditions for Cancellation of Contract?

When entering into a contract, the parties in a contractual relationship always aim for certain interests and purposes. However, in reality, the contract is not always implemented seriously and in good faith. According to Vietnam laws, parties are entitled to cancel the contract to protect rights and interests. Therefore, it is not rare for a party to request to cancel the contract in order not to be bound by the contract. However, it should be noted that the right of cancellation is only applied in some certain circumstances which stipulated by the law. This is to limit arbitrariness of cancelling the contract.

 

 Contract dispute law firm in Vietnam

The basic condition for cancelling the contract is the breach. However, it should be noted that not all breaches of contract will result in cancelling the ccontract. This is stipulated in both of general law and specialized law. According to Commercial law 2005 (“CL”), the sanction of cancelling the contract is applied in case of breaching act be a condition for the cancellation of the contract as agreed upon by the parties or in case of substantial breach of contractual obligations from a party. Specifically, contractual breach means the failure of a party to perform, to fully or properly perform its obligations according to the agreement between the parties or the provisions of CL. Substantial breach means a contractual breach by a party, which causes damage to the other party to an extent that the other party cannot achieve the purpose of the entry into the contract. Civil Code 2015 (“CC”) also stipulates correspondingly but it uses the term “serious breach”: “A party has the right to cancel the contract and shall not be liable to compensate for damage in the following cases: (i) A breaching act of one party is a condition for the cancellation of the contract as agreed upon by the parties; (ii) The other party seriously violates the obligations in the contract; (iii) Others circumstances as provided by law. Serious violation means the failure to fulfill obligations properly by a party which make the other party cannot achieve the purpose of the entry into the contract”. However, currently there is no specific guidance on identifying the substantial breach of contractual obligations and the serious breach of contractual obligations. Therefore, determining whether a party’s breach is considered as a substantial breach of contractual obligations or a serious breach of contractual obligations will be within the competence of the jurisdiction.

A lawfully concluded contract may be canceld when a party breaches its basic contractual obligations. After cancelling the contract, such contract shall be invalid from the time it is entered into, and the parties shall not have to continue performing their contractual obligations, except for their agreements on their post-cancellation rights and obligations and resolution of disputes. The parties shall have the right to claim benefits brought about their performance of their contractual obligations. If parties have indemnity obligations, their obligations must be performed concurrently. Where it is impossible to make the indemnity with benefits which one party has enjoyed, the obliged party must make the indemnity in cash. Breached parties are entitled to claim damages.

In conclusion, from the regulation of law, it can be seen that nature of contract is to benefit for the parties and not to be canceld. The cancellation is very serious so the contract can only be canceld in some certain conditions. The contract cannot be canceld as a sanction if there is no contract breach. Simultaneously, the party requesting cancellation also needs to know that such request is only accepted if there is enough foundation to affirm that the other party has substantial breach of contractual obligations or the serious breach of contractual obligations.  Parties encountering potential dispute should consult with dispute lawyers in Vietnam for proper resolution.

ANT Lawyers – A Law firm in Vietnam has law offices in Hanoi, Ho Chi Minh City and Da Nang.  The lawyers at each law offices in Vietnam have consistently made valuable and important contributions to our profession through the cases we handled on daily basis to facilitate business transaction or represented our clients to access justice

 

Read More