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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What Attention for Filing PCT Patent Application in Vietnam in 2023?

What Attention for Filing PCT Patent Application in Vietnam in 2023?

There are individuals and companies that believe that by filing a trademark, patent or industrial design application in the host country, they will automatically receive worldwide protection. However, in fact, intellectual property rights are territorial related and Intellectual Property (IP) government offices only grant protection titles according to the laws of the relevant countries (or region). Therefore, the Patent Cooperation Treaty (PCT) was born and signed by the member countries on June 19, 1970 in Washington, the PCT entered into force on June 1, 1978. Vietnam joined the PCT on March 10, 1993.

File PCT Patent Application in Vietnam

According to the definition of Vietnam law, an invention is a technical solution in the form of a product or process that aims to solve a defined problem by applying natural laws. In order to be able to obtain patent protection in different countries, an applicant can apply for protection through the PCT, either directly or within 12 months from the date of filing the first patent application filed in a country party to the Paris Convention, designating all countries wishing to register on the same application form, in the same language, and pay a fee.

The applicant needs to prepare a set of application including the following documents:

-02 Patent registration declarations according to Form 01-SC, specified in Appendix A of Circular 16/2016/TT-BKHCN.

-01 Vietnamese translation of the description and summary in the international application (published copy or original submitted, if the application has not been published, and the revised version and explanation of the amendment, if the international application is amended under Article 19 and/or Article 34.2(b) of the Treaty).

-01 Vietnamese translation of the appendices to the international preliminary assessment report (when substantive examination is requested).

-01 original copy of 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).

-01 Power of Attorney (in case the application is submitted through a representative).

After fully preparing the application, the applicant submits the application at the National Office of Intellectual Property under the Ministry of Science and Technology.

The time limit for formal examination is 1 month from the date of application submission. Applications will be published in the 19th month from the priority date or the filing date, if the application does not have a priority date, or within 2 months from the date of acceptance of the valid application, whichever is later. The time limit for substantive examination is not more than 18 months from the date of application publication if the request for substantive examination is filed before the date of application publication or from the date of receipt of the request for substantive examination if such request is filed after date of publication of application.

One of the important steps in filing PCT patent application in Vietnam is to make sure the translation into Vietnamese language match up with the original language. Patent attorneys at ANT Lawyers – a law firm in Vietnam will assist along the process including the translation of the patent and work with the national office of intellectual property in Vietnam to follow the instructions to complete the registration process in Vietnam.

Source ANT Lawyers: https://antlawyers.vn/library/what-attention-for-filing-pct-patent-application-in-vietnam.html 

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How Bank Guarantee Letter Could Help Secure a Transaction and Risks Involved?

How Bank Guarantee Letter Could Help Secure a Transaction and Risks Involved?

In the process of performing civil transactions, there is a need to bind the performance of obligations of the parties hence secured transaction is needed and guarantee is one of the commonly used methods to secure the performance of obligations in business and commercial activities.  The party that provides guarantee is normally a commercial bank and bank guarantee is normally a loan service.  In reality, there are potentially many risks involved in the guarantee transaction through issuing of bank guarantee letter which needs the attention of dispute lawyers in banking and finance to provide legal advice throughout the process.

Bank guarantee or guarantee commitment is a document issued by the guarantor or counter-guarantee or the guarantee-confirming party in the form of a Letter of Guarantee or a Guarantee Contract. Thus, a letter of bank guarantee is understood as a written commitment of the bank to the guarantee recipient that the bank will perform financial obligations on behalf of the guaranteed party when the guaranteed party fails to perform or not fulfilling the obligations committed to the guarantee recipient. In case the parties choose the form of counter-guarantee or guarantee confirmation, the letter of guarantee shall include the written commitment of the counter-guarantee issuing party to the guarantee, or of the guarantee-confirmation issuing party to the obligee.

When a guarantee obligation arises, the obligee must send a written request for the performance of the guarantee obligation, enclosed with the documents agreed upon in the guarantee commitment, to the guarantee-executing bank. The request for performance of guarantee obligations is considered valid when the bank receives it within the working time of the bank and within the valid guarantee commitment period. In case the request for performance of the guarantee obligation is sent in the form of a registered letter via the public postal network, the date the guarantor receives the request is the date of signing and receiving the registered letter.

Within 5 working days from the date the guarantor bank receives a valid written request for performance of the guarantee obligation, the guarantor shall be responsible for properly and fully performing the promised guarantee obligation for the with the guarantor. In case the guarantor bank refuses to perform the guarantee obligation, within 5 working days after receiving the request to perform the guarantee obligation, the bank must reply in writing clearly stating the reason for the refusal. In case of payment in foreign currency, credit institutions, foreign bank branches shall debit that foreign-currency sum to the mandatory lending account.

Credit institutions, or foreign bank branches, shall agree on the guarantee-issuing fee amount paid to customers. In case of a counter guarantee or guarantee confirmation, the guarantee-issuing fee amount shall be agreed upon by parties on the basis of the guarantee-issuing fee amount approved by the obligor. If the guarantee currency is foreign one, parties shall agree on collecting the guarantee-issuing fee by accepting that foreign currency or converting that foreign currency into Vietnam at the sell rate defined on the fee collection or fee collection notification date.

Disputes could arise from many situations, for example, there is a case of issuing a false letter of guarantee because an individual in the bank violates the law, or the bank officer signs a letter of guarantee without proper authorization from the legal representative of the bank, or letter of guarantee is in violation of form according to the regulation of state bank. In addition, if a conditional letter of bank guarantee is applicable, a dispute may arise from an understanding of whether or not the conditions for the guarantee have been met. In many cases, there might need to be a lawsuit to determine the conditions fulfilment of the guarantee and such might be lengthy and costly. Therefore, the parties involved in the guarantee transaction might need to consult a lawyer with expertise in banking disputes to check the legitimacy and validity of the letter of bank guarantee and the possibility to be guaranteed when the conditions are met.

Source ANT Lawyers: https://antlawyers.vn/library/how-bank-guarantee-letter-could-help-secure-a-transaction-and-risks-involved.html 

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What is Business Registration Certificate in Vietnam?

What is Business Registration Certificate in Vietnam?

Business registration certificate is considered a legal document of an organization, which is a paper or electronic document that records information related to business registration that the Business Registration Authority grants to an enterprise.

How to Obtain Business Registration Certificate in Vietnam?

According to the provisions of the Law on Enterprises, a business registration certificate must contain the following principal contents: Enterprise name and enterprise code; Address where the head office of the enterprise is located; Full name, contact address, nationality, number of legal papers of the individual, for the legal representative of limited liability companies and joint stock companies; for general partners of a partnership company; for business owners of private enterprises. Full name, contact address, nationality, number of legal papers of the individual, for members being an individual; name, enterprise identification number and head office address of the member being an organization, for limited liability companies; Charter capital for companies, investment capital for private enterprises.

In which, the name of the enterprise must be a Vietnamese name consisting of two elements: type of business and proper name. Currently, Vietnam recognizes four types of enterprises: limited liability companies, joint stock companies, partnerships and private enterprises. The enterprise’s proper name can be written with the letters of the Vietnamese alphabet, the letters F, J, Z, W, numbers and symbols. The enterprise code element recorded on the Certificate of Business Registration is a series of numbers created by the National Information System on Business Registration, issued to an enterprise upon its establishment, and recorded on the Certificate of Business Registration. Each business has only one unique code and that code will not be reused for other businesses.

The business registration can be carried out directly at the Vietnam Business Registration Office or through the postal service or through the electronic information network. If choosing the form of enterprise registration via electronic information network, the enterprise founder shall submit an application at the National Enterprise Registration Portal. Business registration documents will be presented in electronic form and have the same legal value as paper business registration documents.

The business registration agency is responsible for reviewing the validity of the enterprise registration dossier and granting the Business registration certificate within 03 working days from the date of receipt of the application. In case the application is not sufficient or not prepared according to the regulations, the business registration agency must notify in writing the contents that need to be amended and supplemented to the enterprise founder. If the business registration authority refuses to register the enterprise, it must notify in writing the enterprise founder and clearly state the reasons. The company could prepare its own submissions or hire a Vietnam business lawyers to assist with the submissions.

With highly professional staff and great experience in foreign investment, ANT Lawyers could help to support you to Obtain Business Registration Certificate in Vietnam.

Source ANT Lawyers: https://antlawyers.vn/library/what-is-business-registration-certificate-in-vietnam.html  

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How to set up a Joint-Stock Company in Vietnam in 2023

Joint-stock company is a type of enterprise recognized by Vietnam law, besides other types being limited liability company, partnership and private enterprise. A joint-stock company has legal status from the date of issuance of the Certificate of Business Registration by Vietnam authority. It is important to consult with corporate lawyers in Vietnam to learn the advantage of different forms of companies to be set up in Vietnam for the efficient management and purpose of the owner.

According to the definition of the Law on Enterprises, a joint-stock company is an enterprise whose charter capital is divided into equal parts called shares. Shareholders of a joint-stock company can be organizations or individuals, and the minimum number of shareholders of the company is 03 people. There is no limit on the maximum number of shareholders, so it will be convenient for the company when it wishes to expand its business on a larger scale. In addition, shareholders will only be liable for debts and other property obligations of the enterprise to the extent of the amount of capital contributed to the enterprise. This is an advantage of this type of business because the level of risk that shareholders have to bear. In particular, joint-stock companies have the right to issue shares, bonds and other securities to raise capital, which is a feature that other types of businesses do not have.

To set up a joint-stock company in Vietnam, the business owner can submit by himself or authorize another individual/organization or a law firm in Vietnam to submit a set of documents to the Business Registration Office where the head office is intended, including:

1.An application for enterprise registration;

2.The company’s charter;

3.List of founding shareholders and list of shareholders being foreign investors;

4.Copies of the following papers:

a) Legal papers of the individual for the legal representative of the enterprise;

b) Personal legal papers for company members, founding shareholders, shareholders being foreign investors who are individuals; Legal papers of the organization for members, founding shareholders, shareholders being foreign investors being organizations; Legal documents of individuals for authorized representatives of members, founding shareholders, shareholders being foreign investors being organizations and documents on appointment of authorized representatives.

For members and shareholders being foreign organizations, copies of legal papers of the organization must be notarized and consularly legalized in Vietnam;

c) Investment registration certificate, in case the enterprise is established or participated in the establishment by a foreign investor or a foreign-invested economic organization in accordance with the provisions of the Investment Law and other legal documents; implementation manual.

The processing time will be 03 working days from the date the Business Registration Office receives the valid application.

With highly professional staff and great experience in foreign investment, ANT Lawyers could help to support you to set up a joint-stock company in Vietnam.

Source ANT Lawyers: https://antlawyers.vn/library/set-up-a-joint-stock-company-in-vietnam.html 

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What Are the Advantage of Foreign Investors in Setting up Business in Vietnam in 2023?

What Are the Advantage of Foreign Investors in Setting up Business in Vietnam in 2023?

Located in an important position of Southeast Asia, Vietnam has a long coastline of more than 3,000 km. With a diverse geographical structure interspersed with mountainous, highland and coastal areas suitable for general economic zones, Vietnam has ideal conditions to develop the trade and tourism industries. When setting up business in Vietnam, investors can enjoy financial advantage such as corporate income tax, import and export tax and land finance incentives.

Incentives on corporate income tax: In recent years, Vietnam has gradually reduced the corporate tax rate (CIT). In the 2004-2008 period, CIT was 28%, in the 2009-2013 period it was 25%, from 2014 to 2015, 22% and from January 1, 2016 until now, 20%. In addition, the provision of high corporate income tax incentives for a number of key fields that need to be encouraged for investment has contributed to attracting investment, encouraging business, creating favorable conditions for enterprises to increase accumulation, increase investment in the economy, and promote growth, hence promoting investors in setting up company in Vietnam.

Import and export tax incentives: The 2016 Import and Export Tax Law has added regulations that high-tech enterprises, science-technology enterprises, science-technology organizations are exempted from import tax on raw materials, materials and components that cannot be produced domestically within 5 years from the date of commencement of production. There are also import and export tax incentives being applied such as:

(i) Exemption from import tax for goods imported for processing for foreign countries and when exporting and returning products to foreign parties, they are exempt from export tax;

(ii) Goods imported for processing that are exempted from tax, goods temporarily imported for re-export and goods being raw materials and supplies in service of the production of exported goods can be extended the tax payment time to 275 days from the date of filing the customs declaration; goods temporarily imported for re-export may be extended the tax payment time to 15 days from the expiration date;

(iii) Exemption from import tax on goods to create fixed assets for investment projects in areas of special investment encouragement, investment promotion fields and investment projects in the locality have difficult socio-economic conditions.

Incentives on land finance: Foreign enterprises investing in Vietnam can be applied adjusted reduce rate (%) calculating the general land rent from 1.5% to 1%. In addition, the State also stipulates the application of the land price adjustment coefficient in determining the land price to calculate the land rent, therefore, making Vietnam increasingly becoming a favourable destination to attract foreign investment and company establishment in Southeast Asia.

In addition, the development of a transparent and consistent investment legal system is increasingly becoming a good tool to promote foreign direct investment inflows into Vietnam in the spirit of the state ensuring the rights of the investors’ ownership, investment capital and other interests of foreign organizations and individuals, creating favorable conditions and simplifying procedures for such organizations and individuals to invest in Vietnam. Compared with the foreign investment laws of some countries in the region, the law on foreign investment in Vietnam is considered by the international public to be more open and attractive, for example applying the form of 100% foreign capital ownership, administrative procedures are simplified, non-discriminatory between Vietnamese enterprises and foreign-invested enterprises. The law has been transforming in the direction of considering investment and business as the matters of enterprises and investors, which the investors have full authority to make decisions from investment projects to the formation and business of the enterprise and that the government only guides, creates an open legal environment, has favorable mechanisms and procedures, supervises and enforce the law.

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

Source ANT Lawyers: https://antlawyers.vn/library/what-are-the-advantage-of-foreign-investors-in-setting-up-business-in-vietnam.html  

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