Transfer of Investment Projects in Vietnam

Under the current Law on Investment, investors are entitled to transfer part or all of the project to another investor when satisfied the specific conditions and conducting to procedure of project adjustment under the regulation of law.

Issuing Investment Certificate for Foreign Investors in Vietnam

The conditions of project transfer

-The project is not terminated in the cases as prescribed in Clause 1 Article 48 of Law on investment;

-Investment conditions applied to foreign investors are satisfied in case the foreign investor receives a project of investment in conditional business lines;

-Regulations of law on law, real estate trading is complied with if the project transfer is associated with transfer of land;

-Conditions in the Certificate of investment registration or relevant regulations of law are complied with.

Preparation of dossier

-A written request for permission for project adjustments;

-A report on the project’s progress up to the time of transfer;

-The project transfer contractor another document with equivalent legal value;

-Copies of the ID card or passport (if the investor is an individual) or Certificate of Enterprise Registration or another document with equivalent legal value (if the investor is an organization);

-Copies of the Investment Registration Certificate or decision on investment guidelines (if any);

-Copies of the BCC contract (for BCC projects);

-Copies of one of the following documents of the transferee: financial statements of the last 02 years; commitment to provide financial support by the parent company, commitment to provide financial support by a financial institution, the guarantee of transferee’s financial capacity, documents describing the transferee’s financial capacity;

Order and procedure

-Investors submit the dossier at Department of Planning and Investment (or Management of Economic Zone or High-tech Zone);

-Within a period of 10 working days from the date of receipt the complete and valid dossier for an investment project operating under an investment license and not subject to decision of investment policy (or 28 working days from the date of receipt the complete and valid dossier for an investment project which is subject to investment decision of the provincial People’s Committee; 47 working days from the date of receipt the complete and valid dossier for the investment project subject to the decision of the Prime Minister), the competent authorities consider and decide to adjust the investment registration certificate to the investor transferring the project.

Before transferring an investment project, investors need to evaluate the legal situation, apart from the financial, personnel, and other key issues of the project, which are subject of the transfer. Therefore, to ensure effective transfer, investors often engage law firms with highly qualified lawyers in Vietnam to conduct M&A legal due diligence related to the legal documentation of the owner, capital contribution of the shareholder or member, tangible assets (land use rights, plant and machinery, equipment, etc.) and invisible assets (including industrial property rights), licenses, contracts or transactions of great value, taxes and other legal risks such as litigation or disputes which could significantly impact the project..

The transfer of an investment project is an administrative procedure with a state agencies that is only smooth when the parties reached agreements. In fact, the transfer of the investment project’s timeline depends on the appraisal and evaluation process of the parties involved in the project.

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What is intellectual property? Why should it be protected?

What is IPR?

Property created with the use of intellect and out of the intellectual labour of the creator\inventor. The idea and expression of such idea is his own original work and out of his ‘skill and labour.’ Although idea per is cannot be protected.

Protecting Intellectual Property Rights in Vietnam

What is the nature of IP and why it is a ‘property’?

The intellectual property is intangible i.e., it has a physical embodiment or an expression of the creation but not necessarily. It differs from movable and tangible properties like one’s land or house. The intangible properties are incorporeal in nature. Some examples of IP include book, poem, working model/invention, plant varieties from an area etc.

It is called a property for the very reason that it has a ‘commercial value’ and industrial utility to it. A property can be sold, altered and enjoyed possession by the owner and the same applies to one’s IP. Such rights are not fundamental but statutory. But the legal implications governing the controlling of IP protection gives that exclusive right to enjoy the same for each IP right for a limited period.

Why one needs IP protection?

The purpose behind the statutes governing the IPR field, have only one objective of protecting the original work of the creator for a limited time to respect his skill and creativity in spending time to create or invent something. It is to regard his right to have ownership over such property. But reasonable limitations include a fixed time to have ownership and also to prevent monopoly.

Often, pharma companies charge higher prices on patented drugs cutting access to medicine for the public, thus, exceptions like compulsory licensing and fair use are existing as limitations. ‘Public purpose’ is a ground to determine the extent of exercising the exclusive rights. It is in a way, an industrial property, making it useful for country’s economy and commerce.

Types and classification of IP rights

-Patent: granted to inventions by the inventor. The conditions are that it has to have novelty, industrial utility and different from existing models and not just a mere re-arrangement. The patentable inventions can be either a process or product patent, which is usually granted for a term of 20 years (changes according to different countries). It creates a certain monopoly over the patented item.

-Copyright: right granted to expression of ideas in physical form or in other expressed terms. Artistic, dramatic, musical and written works of a creator. The registration of the same is not necessary in some countries. The work has to be original and out of his own creativity. International term of copyright period extends to 50 years after the creator’s death as well.

-Trademark: a mark, sign, form, an arrangement or combination of the colours or lines, name of a product, which makes it distinguishable from other products and to identify the brand name. It mainly helps to promote the company brand and to help the public differentiate the same from others. It is synonymously called as service marks.

-Industrial Design: The pattern, structure, that forms the product. The intricate and aesthetic features of the product that makes unique from others. It must not be deceptively similar to another design or used before applying for registration. It is different from copyright and trademark.

-Geographical indication & other rights: A plant variety or a type of food that is located in a particular geographical locality or a part of country, be under geographical indication. It helps to identify the origin of such product or type of product to the people. Other IP rights include trade secrets and undisclosed information.

-Trade secrets, Non-disclosure and license agreements are also part of IP protection.

Author: Swathi Gunasekaran

Source: Quora

If you are looking for an experienced IP attorneys in Vietnam to help you with your patent application, you should visit ANT Lawyers.vn. We are supported by a team of experienced patent, trademark, design attorneys with qualification and skills handling full range of legal services relating to intellectual property in Vietnam.  We have specialized in the preparation and registration of patents, trademarks and designs for our clients.

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Introduction to Setting-up Company in Vietnam

Foreigners are encouraged to make investment in Vietnam through direct investment by Setting up company in Vietnam.

However there are restrictions in some cases in regard to investment capital, investment area, special licenses required. The investor is suggested to consult with a law firm in Vietnam for advice and service offering.

Before setting up business in Vietnam, ask yourself the following questions:

1. Which business should I invest in Vietnam?

There are non-conditional investment areas and conditional investment areas. Establishing company in the non-conditional investment areas are more simple than in conditional investment areas. Investment in IT services, manufacturing, management consulting, business promotion are a few samples of non-conditional investment areas. Example of conditional investment areas are real estate, trading, travel agencies, freight forwarding… which are more complicated with investment conditions.  Investment conditions might also be changed over the time depending on the WTO commitments which Vietnam enters.

2. What should I name the business in Vietnam?

The company in Vietnam has to have Vietnamese name, and English name. The company could also have abbreviated name.  The name of the company in Vietnam indicates the structure of the company, the business lines, and the name that differentiate against other businesses.  For instance, the company could be named Alpha consulting limited liability company.

3. Where should I register the address of the business in Vietnam?

Not every address could be used to register a company.  The address has to be an address of a house with leasing agreement or office building which owner has license to operate as office building.

4. What is the legal structure of the company?Depending on the number of investor contributing capital, company could be set-up as one member limited liability company or two ore more member limited liability company or joint stocks company.

5. How much capital is required to set-up a company in Vietnam?

The investment amount depends on the business plan and is subject to the approval of the provincial Department of Planning and Investment evaluating application dossier. In some business areas like real estate, banking and finance, minimum capital is required. In general for non-conditional investment area, the law does not specify the minimum capital to establish a company in Vietnam however the State agencies that evaluate investment plan could reject the investment project which are not feasible. Bank statement in foreign banks could be used to prove sufficient fund of investment capital.

6. Whom will be legal representative and work permit in Vietnam?

The investor will need to appoint the legal representative in Vietnam to oversee the business performance and take legal responsibility in Vietnam. If the legal representative is an expatriate, whom is a capital contributing member or owner of a limited liability company or a member of the Board of Management of a shareholding company which is registered to operate in Vietnam, he or she will be exempted from work permit in Vietnam. Otherwise, he or she will need to have a work permit to work in Vietnam legally.  The work permit holder would then apply for temporary residence card to live in Vietnam as long as the work permit allows.

7. How long does it take to set-up a company in Vietnam?

It depends on what type, scale, and whether or not conditions are required. For a simple minimum capital without conditions to set-up, it would take 30 working days. For setting up company in conditional investment areas i.e.  trading company in Vietnam, time would be lengthen due to the involvement of a number of State agencies approving the investment project and it would take 60 working days. For setting up company in other investments in areas requiring conditions to meet, time might be taken depending on the type of conditions and the government agencies evaluating the conditions of investment.

8. Whom will be granting the investment license in Vietnam?

For most of the investment projects, the provincial state agencies with the approval of the Department of Planning and Investment (DPI) will be granting the Investment Certificate in Vietnam. However, depending on the type, scale, and whether or not conditions are required, other Vietnam State agencies might be involved. For the case of trading company, ministry of trade and commerce, ministry of finance, provincial people’s committee will be reviewing the investment application dossier as well.

9. What are the tax liability in Vietnam?

Major taxes in Vietnam are corporate income tax, import and export tax, value added tax, and personal income tax in Vietnam. In some special areas, there are other taxes. The corporate income tax is currently at 22% and will reduce to 20% beginning 2016. Export is mostly encouraged as such the export tax is 0 however there are spec

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TRAV Receiving Review Application of Anti-Dumping Measures for Aluminum Products under AD05

On July 27th, 2020, Trade Remedies Authority of Vietnam (TRAV) – Ministry of Industry and Trade notified on receiving the dossier on the first review of anti–dumping measures to some of the aluminum products originated from People’s Republic of China imported into Vietnam.

Specifically, on September 28th 2019, Minister of Industry and Trade issued the Decision 2942/QD-BCT on imposing the official decision to some of the aluminum product soriginated from People’s Republic of China under case AD05.

According to Article 82.1.a Law on foreign management 2014 and Decree No. 10/2018/ND- CP, the interested parties in accordance with Article 74 have the rights to submit the review dossiers with the scope including but not limited to the following contents:

-The product scope subject to anti-dumping measures;

-The anti-dumping margin imposing to some specific foreign enterprises;

-The damage of local industry.

After finishing the reviewing period, based on the investigating result, TRAV will propose Minister of Industry and Trade one of the following options:

-Continue to impose the anti-dumping measure in accordance with the current law; and/or

-Adjust the anti-dumping measure in accordance with the reviewing result; or

-Bring the anti-dumping measure to an end.

The performing of the procedures related to the reviewing period will not affect to the effective anti-dumping measures imposed currently.

The reviewing dossiers must be filed sufficiently and timely to TRAV before 5 p.m on September 28 2020 (Hanoi time).

Within 30 days after receiving the investigation questionnaires, the interested parties must provide written replies to all questions in the questionnaire. In case of necessity or there are written requests for extension with reasonable reasons from the interested parties, the investigating authority may extend the time limit but not more than 30 days.

Please be informed that the time limit for the anti-dumping measures imposition investigation shall be within 12 months from the day on which the decision on investigation is issued, with a possible extension up to 6 months if necessary. Interested parties could authorise law firm in Vietnam with international trade and anti-dumping specialization to respond to authorities in Vietnam.

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Should I hire a Trademark lawyer to file trademark application?

The answer is (almost always) “yes!”

Of the many reasons to hire a trademark lawyer for a Trademark (TM), here are few...

-The process can be time-consuming - particularly conducting an exhaustive search of existing trademarks and handling any office actions that come back. Experienced trademark and IP lawyers have successfully submitted many trademark applications, so they will be able to efficiently file your application, allowing you to focus your energy on other company matters.

Trademark protection in Vietnam

-A comprehensive search of trademarks often must go beyond the USPTO’s (already difficult/confusing to search) Trademark Electronic Search System. This would be extremely difficult to accomplish without an attorney and/or professional search. It is much more cost-effective to hire a lawyer up front, than to hire one to rectify problems when you either get an office action or realize your protection wasn't as robust or complete as you'd understood.

-A trademark lawyer can help you frame your application in the best possible way (by selecting appropriate categories/drafting how it is being used/deciding whether to apply for plain text or logo protection-among many other considerations), making it more likely that your application will be granted on the first try and obtain the maximum possible protection for your company.

-Finally, a trademark or IP lawyer can help you after the process is over to help you craft a long-term IP strategy.

Source: Quora

If you are looking for a high-quality, experienced lawyer to work on trademark issues for your company, you should check out ANT Lawyers to get in touch with some of the best. ANT Lawyers - IP services in Vietnam is supported by a team of experienced patent, trademark, design attorneys with qualification and skills handling full range of legal services relating to intellectual property in Vietnam.  We have specialized in the preparation and registration of patents, trademarks and designs for our clients.

We assist our clients in all steps of the prosecution phase of IP management.

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Cases Are Rejected When Get Married with Foreign Element in Vietnam

The law of Vietnam prescribed quite detail about the marriage with foreign elements.

The registration of marriage with foreign elements will be rejected in the following cases:

-One or both parties are not old enough to get married under the laws of Vietnam

-The foreign applicant is not old enough to get married under the laws of the country of which he/she is a citizen or permanent resident (for stateless persons)

-The marriage between men and women is not due to a voluntary decision

-There is deception, coercion in the marriage

-One or both parties had husband or wife

-One or both parties had lost their capacity for civil acts

-The parties have the same direct blood line or relative within three generations

-The parties are or have been the adoptive parents and adopted children, father in law and daughter in law, mother in law and son in law, stepfather and his wife’s stepchild, stepmother and her husband’s stepchild

-The parties of the same sex (men marrying men, women marrying women)

-The marriage registration will also be rejected if the results of the interview, and verification showed that the marriage through illegal brokerage; sham marriage that is not intended to build prosperous, equal, progressive, happy and sustainable family; marriage is inconsistent with the fine traditions of the nation; taking advantage of marriage to trafficking of women, sexual abuse against women or for other self-seeking purposes.

ANT Lawyers- Law firm in Vietnam has experience in civil and family matters to advice clients whom are interested for such legal service in Vietnam. We assist our clients in the process of reviewing agreements, procedures and concerned matters in civil and family.

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Marriage Involving Foreign Elements 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.

ANT Lawyers have experience in civil and family matters to advice clients whom are interested for such legal service in Vietnam.   We assist our clients in the process of reviewing agreements, procedures and concerned matters in civil and family.

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