Questionnaire on Quantity and Value to Foreign Manufacturers and Exporters

On July 14^th, 2020, the Trade Remedies Authority of Vietnam (TRAV), Ministry of Industry and Trade issued an investigation questionnaire on quantity and value to foreign producers and exporters in the AD11 case.

 

Accordingly, TRAV recommends that the related parties who participate in responding the questionnaire, carefully study the guidelines in the questionnaire before responding and submitting.

In order to ensure the best rights and interests, TRAV recommends that all related producers/exporters to participate in full cooperation during the investigation process. The content of the response is one of the important grounds for TRAV to consider and select sample that limits the scope of the investigation. TRAV is entitled to consult with expert or to inspect, verify the authenticity of information and documents provided by related parties or collect additional information and necessary documents to resolve trade remedies case, including foreign onsite investigations.

In the event that TRAV does not receive the timely response or the information provided is inadequate or insufficient as required, TRAV will apply the relevant law provisions regarding the non-cooperation of the related party in trade remedies cases.

The response to the questionnaire must be sent in full, including 01 confidential copy and 01 public copy (hardcopy of the response) and 01 USB containing the full soft copy of the response and attached annexes. The response is considered to be submitted on time when the TRAV receives all hard and soft copies before 5p.m on July 31^st, 2020 (Hanoi time).

AD11 refers to the the anti-dumping investigation case under Decision No. 1715/QD-BCT regarding the Investigation of imposing Anti-dumping measure to some High Fructose Corn Sweetener Products with the HS Code of 1702.60.10 and 1702.60.20 from People’s Republic of China and Republic of Korea (Case AD11). Related parties may by themselves or authorize to experienced law firm in Vietnam on international trade to work with Trade Remedies Authority of Vietnam to cooperate.

Competition, anti-dumping, and countervailing duty lawyers in Vietnam of International trade and tax practice at ANT Lawyers, a law firm in Vietnam always follow up anti-dumping cases and its development to update clients on regular basis.

 

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How Amendment to Contracts Can be Made?

Once a contract is made legally, contracting parties shall implement and such contract is respected by third parties. As stated in Civil Code 2015 (“CC”): “Each commitment or agreement that does not violate regulations of law and is not contrary to social ethics shall be bound by contracting parties and must be respected by other entities”. However, in the implementation process, the contract can be amended, which means, rights and obligation of parties can be amended accordingly.

 

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Due to the fact that the contract is result of before agreement, amendment shall follow certain conditions. According to laws, parties may agree to amend a contract. Enterprises need to pay attention to some following issues when amending the contract in the implementation process:

Firstly, entities participating in contract amendment is the matter which enterprises need to notice. Both contract and supplemental agreement are made on behalf of the parties, which means between two juridical persons. In reality, juridical persons only carry out transactions through representatives, it may be legal representative or authorized representative. Therefore, entities participating in contract amendment shall be representative of juridical persons. A civil transaction entered into and performed with a third person by a representative in accordance with his/her scope of authorization shall give rise to rights and obligations of the principal. Regarding consequence of civil transactions made by unauthorized persons or by representatives beyond scope of representation, such civil transactions shall not give rise to rights and obligations of the principal or not give rise to rights and obligations of the principal with respect to that part of the transaction which exceeded the scope of representation, except for any of the following cases: (i) The principal recognizes the transaction or gives consent; (ii) The principal knows it without any objection within an appropriate time limit; (iii) It is the principal’s fault that the other party does not know or is not able to know that the person entering into and performing the civil transaction therewith was unauthorized or beyond his/her scope of representation. In above circumstances, the unauthorized person must fulfill the obligations to the person with which he/she transacted or the obligations owning to the person with which he/she transacted in respect of the part of transaction which is beyond the scope of representation, unless such person knew or should have known that the representative was unauthorized or the scope of representation was exceeded but still transacted. A person having transacted with above representative has the right to terminate unilaterally the performance or to terminate the made civil transaction or to terminate the civil transaction with respect to that part which is beyond the scope of representation or with respect to the entire transaction and to demand compensation for any damage, except that such person knew or should have known that that the representative was unauthorized or the scope of representation was exceeded or the case of which the principal recognizes the transaction or gives consent. If above representatives and the other party in a civil transaction deliberately enter into and perform such transaction and thereby cause damage to the principal, they must jointly compensate for the damage.

Form of agreement on amending contract is the second matter which needs to be taken into consideration. Amendment shall comply with the form of the initial contract. For instance, if the initial contract is made in written, notarized, certified, registered, the amendment shall follow such forms. The form of contract shall be the conditions for its effectiveness in cases where it is provided by law. Therefore, the form of amended contract shall be the conditions for its effectiveness in cases where it is provided by law. In invalid contracts, the general rule is restoring everything to its original state and returning to each other what have received. The condition for the contract of non-compliance with form recognized by the Court’s decision is that one party or the parties has fulfill at least two third of the obligation contract. However, not one party or the parties fulfilling at least two third of the obligation contract will naturally make such contract invalid but there must go through the Court. Specifically, according to request of one party, after fully considering conditions mentioned above, the Court shall make a decision on recognizing the validity of such contract. This principle also applies to contracts amendment. It is important that parties to consult with lawyers at early stage to anticipate matters of dispute and clearly have clauses drafted to avoid potential future disputes.

 

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The Wave of New Technology Companies Wants to Choose Vietnam as the Destination

After the wave of technology companies pouring capital into Vietnam 10 years ago, there seems to be a wave of new technology companies wanting to choose Vietnam as their destination.

 

Last weekend, LG (Korea) went to Dong Nai to seek investment opportunities in items related to digital transformation and building smart cities in this province. According to representatives of LG, the Group is cooperating with a number of major corporations in the world to produce and supply 4.0 technology to deploy large smart city projects for some countries around the world.

Dong Nai is implementing smart city project, so LG Group wants to participate in some categories, such as smart industrial parks, smart transportation, smart health care, smart factories, smart logistics… Funding to implement a smart city is about 15,000 – 20,000 billion VND.

Even as LG, after making its mark with the production complex of electronics, home electronics in Hai Phong (including 3 factories LG Electronics, LG Display, LG Innotek), at the end of last year, also set the ambition to make Da Nang become the Group’s information technology research and development (R&D) center in Vietnam. And now, although the information is not very specific, there is also a new investment direction.

The fact that Vietnam is promoting digital transformation has also attracted special attention from Taiwanese businesses. According to PwC’s research has just been published, the importance of Vietnam for Taiwanese businesses has increased from 18% in 2018 to 24% by the end of 2020 and ranked 4th, after the US, Japan and China.

According to Taiwanese PwC, the fact that the Vietnamese Government is actively focusing on promoting digital transformation will almost be a free ‘preferential’ policy for all foreign businesses to invest in Vietnam. Because, the impact of digital transformation not only helps reduce production costs, but also promotes efficiency and business performance here.

About 2 weeks ago, the leaders of Bac Giang province had a meeting to discuss with departments and branches to push up the clearance progress of Quang Chau Industrial Park (Viet Yen, Bac Giang). This industrial park has a total area of 426 hectares, but currently only 336 hectares have been cleared ground, the remaining 90 hectares have not.

Under the direction of the Vice Chairman of Bac Giang Provincial People’s Committee, the People’s Committee of Viet Yen district must focus highly on the work of site clearance for the remaining area, ensure early handover to the investor, even consider this is the top priority task.

It is easy to understand why Bac Giang province is so impatient. Provincial leaders want to soon hand over the entire premises of this project so that they can “welcome strategic investors”. The details have not been disclosed, but it is most likely related to the Foxconn Group’s investment expansion project that is about to be deployed in this industrial park. And most likely, this is the project that has been mentioned for a long time – 270 million USD, producing smart TV for a famous brand.

Meanwhile, Luxshare Group, after investing in building a factory in Van Trung Industrial Park, is also implementing another project in this industrial park, with an investment of 190 million USD. According to Luxshare-ICT Van Trung General Director, this new factory specializes in manufacturing all kinds of wireless headsets (bluetooth), smartwatches and bluetooth speakers.

In addition to the factories in Bac Giang, Luxshare is also in the process of expanding its investment in a factory in Nghe An. Meanwhile, Wistron Group has invested 273 million USD project in Ha Nam, while Pegatron Group has invested 2 projects 500 million USD in Hai Phong.

Looking at this angle, it seems that there is a next wave of investment in the high-tech sector pouring into Vietnam. In a report titled “Rising Star: The Role of Vietnam in Transforming Supply Chains in Asia”, according to Economist Intelligence Unit (EIU), Vietnam is still an interesting option for manufacturing operations and those looking to diversify supply chains in Asia.

According to the EIU, high-tech manufacturers will continue to receive incentives for many years to come and that is an advantage, so that along with other advantages, for example joining many trade agreements, Vietnam will become “a very convenient alternative name for a part of Chinese production”.

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.

 

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Benefits of retaining a Real Estate Lawyer in Vietnam

Due to changes in law attracting foreigners to come to live, and invest in Vietnam, foreigners have growing interest in investment and acquiring real estate.  However, as real estate is valuable assets, the law on real estate ownership and real estate transactions are complicated, especially for foreigners.

 

Under the land ownership regime in Vietnam, land belongs to the entire people with the State acting as the owner’s representative and uniformly managing land. Hence, in Vietnam, the land users will have the land use right without the private ownership of the land.  Land law 2013 does not allow foreigner to have land use rights in Vietnam. It only allows foreign invested enterprises to be permitted to use land through the form of land allocation or lease.

Although foreigners do not have land use rights in Vietnam, they are allowed to own houses in Vietnam under the Law on Housing. In addition, the Law on Real Estate Business has certain limitations for foreign investors to conduct real estate business in Vietnam and must meet the legal requirements.

Foreign investors investing in Vietnam wish to use the land to conduct business activities, or intend to conduct real estate business in Vietnam, or simply a foreigner wishing to purchase and own real estate in Vietnam should be aware of the legal provisions on conditions of implementation, orders and procedures to of the transactions to minimize risks.  The assistance of the lawyers on real estate in Vietnam shall be worthwhile.

Real estate lawyers in Vietnam would have in-depth knowledge of the Land Law, Law on Housing, Law on Real Estate Business and related regulations. In addition, they would have practical experience in implementing legal procedures, handling disputes, and supporting real estate transactions in Vietnam. The real estate lawyers could explain the restrictions on land use rights of foreign organizations and individuals in Vietnam and the conditions for conducting business in real estate in Vietnam.  The lawyers at request could assist the foreigners with the process and procedures to work with state agencies to obtain land use rights for enterprise and home ownership rights for individual more effectively.

When conducting transactions related to real estate such as buying, selling, transferring, renting, leasing, real estate lawyers could also provide assistance in in legal due diligence of the real estate to minimize legal risk to clients. It is important to evaluate the legal status of the property, the owner of property, whether property is in dispute, or subject to additional requirements of government before being sold by the developer and the people eligible for entering into the transaction. In addition, the lawyers in Vietnam can advise clients to draft or review the agreements, sales contract as well as the process to legalize the process to comply with the law in Vietnam.

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.

 

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Anti-dumping measures under Vietnam laws

Vietnam joined the WTO, signed various types of trade agreements, and step by step eliminated tariff and non-tariff barriers, and accelerated the process of integration and development of Vietnam. The Foreign Trade Administration Act of 2017, which regulates trade remedies, has also terminated the effect of the Ordinance on Anti-dumping of Imported Goods in 2004.

 

WTO law firm in Vietnam

According to the Law on Foreign Trade Management, Decree 10/2018 / ND-CP, anti-dumping measures against goods imported into Vietnam is a measure applied in cases where the goods are identified dumping when imported into Vietnam causes substantial injury or threatens to cause material injury to a domestic industry or prevents the formation of a domestic manufacturing industry. A commodity is determined to be dumping when it is compared to the following conditions: the selling price in Vietnam is lower than the normal price. The usual price determination is regulated by the Law on Foreign Trade Management in three ways: the price of the like goods at exporter, the price of the like goods in the third country under normal commercial conditions or the price determined by the investigating agency by the method of self-calculation.

For the application of anti-dumping measures, the “sale price” factor is not sufficient, but must fully satisfy the conditions prescribed by law. Accordingly, the dumping measure is applied when the dumping margin is over 2%; the domestic industry suffered material injury or threatened to cause material injury; there is a fruitful relationship between the importation of goods selling prices and the domestic production. With the margin of dumping below 2%, anti-dumping measures are not applicable.

The application of anti-dumping measures is considered as a way of healthy competition of enterprises. Domestic enterprises may request the competent agencies to apply this measure when they find that they fully satisfy the conditions on quantity and volume of goods related to their selling prices and the proportion of goods that they sell on the market devaluation (at least 25%). On the basis of the conclusions of the investigation, the anti-dumping tax shall be applied for not more than 5 years or the measures for elimination of dumping at the request of the domestic enterprises if they are approved by Vietnam Competition Authority, the investigation bodies.

An anti-dumping duty shall apply retroactively prior to the decision of the Minister of Industry and Trade. Anti-dumping duty shall be retroactively applied to imported goods for a period of 90 days before the imposition of provisional anti-dumping duty if the imported goods are found to be dumped.

Therefore, anti-dumping measures are a way to protect the domestic industry and at the same time create a healthy competition between foreign enterprises and Vietnamese enterprises. At the same time, respect for international commitments, trade agreements that Vietnam signed when joining the WTO.

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.

 

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How Important is End-User License Agreement in Vietnam?

End-user license agreement (EULA) is a legal agreement enter between two parties which are software developer or provider and software user. Terms and Conditions could cover a large scope of matters, for example, payment schedule, privacy policy, providing service to third party, solving arisen disputes and even inclusive of EULA. Whilst, EULA almost focuses on agreement of giving the user using software right and includes the regulations related to grant of license, limitations or using period of the software.

 

Software Compliance Law Firm in Vietnam

Normally, after the user downloads the software and officially install it, an EULA would be shown out for user to understand its rights and obligations and agreed to. EULA may be called by different names which are License Agreement, Software license agreement, etc.

What is the nature of EULA?

This is a commitment which developer or provider create and user must abide by before installing the software. However, this does not mean from the time user agrees to EULA, user will be the owner of the software. The user only has the legal using right to that software. Some important matters to consider would be granting of license, limitation of granting of license, and IP.

Firstly, “Granting of License” is a prerequisite of this agreement when clearly state that user will be granted using software right. Secondly, the term “Limitation” is also a very important term of EULA as after installing, user may utilize the software in lots of purposes which are both legal and illegal and may affect the software developer/provider or any third party. Thus, this term particularly regulates the activities which users are not allowed to do while using the software. Thirdly, “Intellectual Property” is a pretty popular term in almost all type of agreements to protect the developer in copyrights. Besides, there are other terms such as “software update, maintenance and technical assistance, ability limitation, regulated law, etc.” and for each particular case and purpose of the owner, the agreement might also cover other appropriate terms.

End User License Agreement is a very important agreement attached to the software to guide the users and protect rights of the software developer or provider. Therefore, this agreement should be anticipating all cases as software owner wish to avoid disputes and even in the case of violation, the agreement will be the starting points to recover the damages to the developer and software owner.

 

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.

 

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