What Are Tax Obligations of a Representative Office in Vietnam?

Vietnam-based representative office of a foreign trader means a dependent unit of the foreign trader, which is established under the provisions of Vietnamese law to conduct market survey and a number of commercial promotion activities permitted by Vietnamese law.

Representative office of foreign trader in Vietnam has the rights and obligations in accordance with the law of Vietnam. Foreign trader is responsible before the law of Vietnam for all operations of its representative office in Vietnam.

International Trade Dispute Lawyers in Vietnam

Accordingly, representative office in Vietnam is not allowed to conduct business activities, nor carry out other activities for profit-generating purposes. The representative office in Vietnam only performs the activities for the right purposes, scope and duration specified in the certificate to establish the representative office. Besides, the representative office in Vietnam has the right to rent the head office, rent and buy the facilities and materials necessary for the operation of the representative office; to recruit Vietnamese and foreign employees to work at the representative office in accordance with the provisions of Vietnamese law; to use an account in foreign currency, in Vietnam dong of foreign currency origin opened by a foreign trader at a bank licensed to operate in Vietnam and only use this account for the operation of the representative office; to have a seal bearing the name of the representative office according to the provisions of Vietnamese law. Representative office in Vietnam can sign contracts, perform transactions with partners when authorized by the enterprise.

Hence, due to the limited scope of activities, the tax liability of a foreign representative office in Vietnam is narrower than that of an enterprise.  As the representative office does not produce or trade in goods and services, it is not required to pay license fees as prescribed. Representative office of foreign trader in Vietnam is dependent unit of foreign trader, established to investigate the market and carry out some trade promotion activities permitted by Vietnamese law, does not carry out production and business activities, so it is not required to pay license fees.

The fact that the representative office has the right to recruit Vietnamese or foreign employees to work at the office is the basis for arising personal income tax obligation. At the same time, representative office of foreign organization is subject to personal income tax registration. For employees working at foreign representative office in Vietnam, the taxable incomes are based on salaries and wages. Declaring, with holding, paying taxes and settling personal income tax of employees working at foreign representative office is the responsibility of such representative office.

ANT Lawyers, a law firm in Vietnam with offices in Hanoi, Da Nang and Ho Chi Minh City could help client to set up representative office in Vietnam and advise on the compliance on regular basis.

Source ANTLawyers:  https://antlawyers.vn/library/what-are-tax-obligations-of-a-representative-office-in-vietnam.html 

Source: ANT Lawyers.vn

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Marriage and Divorce in Vietnam

Vietnam family laws covers all legal matters concerning marriages and divorces, including marriage registration procedures, and divorce procedures, matters concerning separate or joint ownership assets and property, child custody, child support, and dispute on related matters.

Marriage and Divorce dispute law firm in Vietnam

Vietnam marriage laws have developed during the past 40 years and are still connected with changes in the thinking of the Vietnamese society and are thereby not exempt from future amendments that might appear simultaneously with the changes in Vietnam’s fast emerging society. The legal fundamental basis for marriages in Vietnam is the Marriage and Family Law.  Some of the main points that are included in this law’s mission are for contributing to build and protect the marriage and family regime as well as to protect legitimate rights and interests of family members. The essential legal provisions of the Vietnam marriage law requires and determines: a required marital age for male is at least 20 years and female 18 years; marriages must be voluntary, progressive, monogamous marriages in which husband and wife are equal; marriages between partners of different nationalities, religions etc. are respected and legally protected but marriages between married people, people without civil act capacity, between the same direct blood line or within three generations, between (former) adoptive parents and children or parents- and children-in-law and stepparents and stepchildren, are forbidden. Although the marriage between persons of the same sex is not forbidden any more but the State shall not recognize it.

Furthermore, marriage or remarriages must be registered with the competent State bodies (registration offices) where either of the marriage partners resides. Vietnamese citizens living abroad shall refer to overseas Vietnamese diplomatic missions or consulates for services.  Unless otherwise provided by law, the provisions of the Marriage and Family law also are also applicable for foreigners involved in Vietnamese marriages. In case a treaty to which the Socialist Republic of Vietnam is a contracting party contains provisions different from those of this Law, the provisions of such treaty prevail.

The registration procedures might differ in some points for foreigners because of the documents required from their home countries. Papers issued, granted or certified by competent foreign agencies for use in the settlement of cases and matters of marriage and family shall be notarized, legalized, except cases eligible for exemption from consular legalization under treaties to which the Socialist Republic of Vietnam is a contracting party or on the principle of reciprocity. Foreigners must demonstrate that they are eligible for marriage in compliance with the law of their home countries. According to the Vietnam Marriage and Family law, foreigners enjoy the same rights and obligations like Vietnamese and Vietnam provides protection for the legitimate rights and interests of Vietnamese living abroad in marriage and family relations in accordance with the law. In the case of a marriage between a foreigner and a Vietnamese, each one must abide by the legislation of his/her country on the marriage conditions. The law also bans marriages whereby foreigners take advantages related to human trafficking, sexually abuse against women.

The law on marriage and family has brought a positive change to the role of the family in Vietnamese society and the traditional values ​​of marriage and family. These legal provisions have contributed to the protection and perfection of a progressive marriage and family regime by creating legal standards that keep pace with the times but also respect long-standing traditional values ​​of Vietnam. However, Vietnam still lacks complex mechanisms to deal with all those involved and another problem is that some clauses are overlapping and are not clear enough to address outstanding issues such as: cohabitation system such as husband and wife, separated or surrogacy. Prenuptial agreements, premarital agreements or similar marriage contracts are not recognized in Vietnam. However, agreements on joint assets, or division of assets during marriage are recognized but certain procedures have to be followed.

Lawyers at ANT Lawyers – Marriage and divorce dispute law firm in Vietnam have experience with registration of marriage, divorce procedures or dispute matters of assets, properties in Vietnam. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

Source ANTLawyers: https://antlawyers.vn/library/marriage-and-divorce.html 

 

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Dispute Resolution Through Arbitration in Vietnam

Dispute resolution methods are litigation, negotiation, mediation and arbitration. Handing disputes requires litigation dispute law firm in Vietnam with dispute lawyers in Vietnam having experience and knowledge to provide resolutions to complex cross-border issues, commercial and civil disputes.

 Arbitration Law Firm in Vietnam 

In the current business environment, most business agreements could contain a clause stipulating that disputes arisen must be resolved in arbitration. For a dispute to be referred to arbitration, there must be a valid arbitration agreement in writing, either as an arbitration clause within a contract or a separate agreement.  If the agreement is included within the context of a contract, the arbitration clause is considered independent, and any modification, extension, or termination of the contract does not affect the validity of the arbitration clause. Vietnamese law allows for a written arbitration agreement to take the form in any written form, so long as the writing clearly indicates the parties’ intent to resolve any dispute via arbitration. If a dispute falls within the scope of a valid arbitration agreement, but a party attempts to initiate court proceedings, the residing court does not have jurisdiction over the matter, and must drop the case. Moreover, an arbitration agreement does not have to stipulate specific dispute matters and/or the arbitration organization authorized to resolve disputes without supplemental agreement.  Even if there is a valid arbitration agreement, Vietnamese Arbitration Law stipulates that in order for a dispute to go to arbitration, it must also fit into one of three categories:

(1) disputes arising from “commercial activities”;

(2) disputes where at least one party is engaged in commercial activities;

(3) other disputes where the law stipulates that arbitration is a permissible means of resolution.

In category (1), the term “commercial activity” is defined in Commercial Law No. 36-2005-QH11 (31 December 2005) as “activity for profit-making purposes comprising the purchase and sale of goods, provision of services, investment, commercial enhancement, and other activities for profit-making purposes.”  The types of disputes that often fall into the second category are noncommercial disputes, such as civil disputes, where at least one party to the dispute is engaged in commercial activities. However, this category does not apply in disputes between a good/service provider and a consumer. In this case, the law allows the party to choose between litigation and arbitration. Even the agreement includes a standard arbitration clause in the supply of goods or services contract, the dispute may not be arbitrated without the consumer’s consent. The final category of disputes permissible for arbitration gives legislators discretion to expand or maintain the types of disputes resolved through arbitration.  An example of a category (3) dispute is a dispute arising from investment activities governed by the Law on Investment.

Arbitration has become an extremely popular method of dispute resolution, as many businesses prefer it over the high costs of litigation.

Arbitration lawyers in Vietnam at ANT Lawyers - a Law firm in Vietnam with accreditation in national and international arbitration practice could help providing legal advice in disputed matters, and guide the clients throughout the process. The arbitration lawyers could also advise the clients on various matters from choice of arbitrator, choice of arbitration rules, ad-hoc or institutional arbitration, place of arbitration, enforcement of arbitral award.

Source ANTLawyers:  https://antlawyers.vn/library/dispute-resolution-through-arbitration.html

 

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What Are Responsibilities of the Seller for Inadequate Delivery of Goods?

Delivering and receiving goods are basic obligations of the parties when performing the Contract for purchase and sale of goods. Specifically, in accordance with the law, when buying and selling goods, the seller must deliver goods and relevant documents, as agreed in contracts on quantity, quality, packing and preservation modes and other contractual terms.

In cases where there is no specific agreement, the seller is obliged to deliver goods and relevant documents according to the provisions of the Law on Commerce. At the same time, the Buyer is obliged to receive the goods as agreed and perform reasonable actions to help the seller deliver the goods.

If the Seller fails to deliver insufficient goods, they must deliver the goods in accordance with the contract. In case the Seller fails to deliver the goods as agreed, the Buyer has the right to purchase the goods from another person for replacement according to the goods specified in the contract and the Seller must pay the difference and relevant expenses, if any; reserves the right to repair the defect of the goods by itself and the Seller shall pay actual and reasonable expenses for the rectification.

The Buyer has the right to request to apply for penalty if agreed in the contract. The penalty for a breach of a contractual obligation or the aggregate fine level for more than one breach shall be agreed upon in the contract by the parties but must not exceed 8% of the value of the breached contractual obligation portion.

In the contract, where a contract-breaching party delays making payment for goods or payment of service charges and other reasonable fees, the aggrieved party may claim an interest on such delayed payment at the average interest rate applicable to overdue debts in the market at the time of payment for the delayed period, unless otherwise agreed or provided for by law.

Thus, when the Seller fails to comply with the commitments as in the contract, the Buyer has the right to initiate a lawsuit requesting a court to force the Seller to return the received amount of goods equivalent for the goods not yet delivered, interest due to late payment, contract fines, compensation for damage as required. In case the parties do not agree to penalty for violation, the Buyer only has the right to claim damages. In case the parties agree to fine for violation, the Buyer has the right to apply both the sanction of the violation and the forced compensation for damage, unless otherwise provided by law.

For the determination of civil liability when violating the sale and purchase contract, according to law, each juridical person must bear civil liability for the civil rights and obligations established and performed in the name of the juridical person by its representative. Each juridical person must bear civil liability by recourse to its property; shall not bear civil liability for its members with respect to civil obligations established and performed by such members not in the name of the juridical person, unless otherwise prescribed by law. A member of a juridical person shall not bear civil liability of the juridical person for the civil obligations established and performed by such juridical person, unless otherwise prescribed by law. Therefore, if the Seller breaches the contract, the legal entity being the Seller is responsible to pay the Buyer and the legal person is not responsible for that legal entity.

It is important to engage lawyers at an early stage of the dispute for consultation on effective dispute resolution.  It is also advised, when entering into the Contract for purchase and sale of goods, the Seller needs to understand the basic legal provisions on its rights and obligations. The Buyer also needs to know clearly about the obligations of the Seller in order to be able to prevent the risk that arises when one of the parties breaches a fundamental contractual obligation.

ANT Lawyers is a law firm in Vietnam, recognized by Legal500, IFLR1000. We are an exclusive Vietnam member of Prea Legal, the global law firm network covering more than 150 jurisdictions. The firm provides a range of legal services to multinational and domestic clients. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

Source ANTLawyers:  https://antlawyers.vn/library/what-are-responsibilities-of-the-seller-for-inadequate-delivery-of-goods.html

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Can Foreign Invested Enterprises Distribute Pharmaceutical Products in Vietnam?

Currently, with the complicated developments of the Covid-19 epidemic in the world in general and in Vietnam in particular, the research, production and import of Covid-19 vaccines are the matter that everyone is concerned about. On February 24th, 2021, the first batch of vaccine approved for import was transported to Vietnam by the Vietnam Vaccine Joint Stock Company.

Facing this situation, a number of foreign enterprises have expressed their opinions on the limitations imposed on foreign-invested enterprises in the field of distribution of pharmaceutical products in Vietnam. Vietnam has reserved no commitment to open the distribution of pharmaceutical products service market and has not committed to opening the distribution of pharmaceutical products service market under any trade agreement or international treaty up to the moment, because the pharmaceutical sector is sensitive, directly related to access to drugs and people’s health.

According to the provisions of the law, “distribution of pharmaceutical products” means the division, movement and storage of pharmaceutical products from the warehouse of the manufacturer/importer of such products or from a distributor to the end user thereof or to a distribution point or between distribution points by means of various transport methods. For distribution services, in the WTO Commitments, it is clear that pharmaceutical distribution services are excluded from the scope of commitments for all modes of supply. In addition, Appendix 03 of Circular 24/2016/TT- publicizing roadmaps for goods trade and goods trading directly related activities of foreign-invested enterprises in Vietnam, it is also recognized that pharmaceutical products are on the list of goods not entitled to distribution.

Regarding this issue, the Drug Administration of Vietnam expressed the following viewpoint: “The suspension of allowing foreign-invested enterprises in Vietnam to provide drug storage and transportation services is to prevent the distribution of disguised drugs in Vietnam, contributing to health security and towards the professionalization of the medicine distribution system in Vietnam.”

Point c, Clause 10, Article 91 of Decree 54/2017/ND-CP, effective from May 8, 2017, provides for cases ineligible to distribute drugs as follows:

“10. The entities that are entitled to import but not entitled to distribute drugs and medicinal ingredients in Vietnam must do activities related to distribution of drugs and medicinal ingredients in Vietnam except for drugs and medicinal ingredients they manufacture in Vietnam, including:

c) Providing drug/medicinal ingredient transport or storage services.”

According to this content, foreign-invested enterprises in Vietnam are not allowed to transport and preserve drugs, except for drugs and medicinal ingredients manufactured by that enterprise in Vietnam. It can be seen that the restriction on the right to distribute drugs to foreign-invested enterprises is aimed at ensuring health security, being proactive in drug supply and distribution, towards to professionalize the domestic drug distribution system as a foundation to support the development of the domestic pharmaceutical industry and contributing to better control of drug prices in the market.

ANT Lawyers – 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.

Source ANTLawyers: https://antlawyers.vn/library/can-foreign-invested-enterprises-distribute-pharmaceutical-products-in-vietnam.html 

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Handling Violations of Competition Laws in Vietnam

Foreign brands are increasingly popular in the Vietnam market as Vietnam economy integrates into world economy. The openings of economy creates opportunities to attract foreign investment into Vietnam through establishment of companies. To continue to protect the fair competition, and interest of consumer, it is important that the Vietnam state authority ensures the business environment. Accordingly, violations related to competition will be handled in accordance with the law.

Dispute lawyers in Vietnam

Acts of violation of competition under Vietnam laws are defined in Article 1 of Decree 71/2014 / ND-CP, including: violations of regulations on control of acts of restraint of competition; acts of violating regulations on acts of unfair competition; violations of other provisions of law on competition. According to the provisions of law, the above acts shall be subject to the forms of punishment and fine. The most common and most powerful impact on businesses and consumers are the violation of unfair competition.

In practice, there are a number of instances where unfair competition acts are associated with intellectual property rights violations, which have a significant impact on business activities of enterprises in the same field; violation of business secrets; activities of advertising that are prohibited i.e. make direct comparison against competitor, provide falsified or confused information to consumers…

If committed acts of unfair competition, the violator will be subject to fine level from VND 10,000,000 to VND 140,000,000. At the same time, additional measures and remedies will be applied, depending on the seriousness of the breach, such as the revocation of the enterprise registration certificate; deprivation of the right to use licenses or practice certificates; confiscation of material evidences and means used to commit the violation, including the confiscation of profits earned from the commission of the violation; to restructure the enterprise, rectify to the public…

From the management of state authority, the detection and handling of unfair competition acts create conditions for enterprises to have equal opportunities in the market economy. From the enterprise’s perspective, it is important to continuously review its business activities in Vietnam to ensure compliance to competition law by its lawyers.

ANT Lawyers – 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.

Source ANTLawyers:  https://antlawyers.vn/library/handling-violations-of-competition-laws-in-vietnam.html

 

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Anti-dumping Measures for H-shaped Steel Products From Malaysia Remain in Place

On August 18th, 2021, the Ministry of Industry and Trade issued the Decision No. 1975/QD-BCT on the application of official anti-dumping tax on some H-shaped steel products originating from Malaysia (“Decision No. 1975/QD-BCT”). Accordingly, the anti-dumping measures against a number of H-shaped steel products originating from Malaysia continue to be maintained under Decision No. 1162/QD-BCT dated April 02nd, 2021 of the Minister of Industry and Trade.

Anti-dumping Law Firm in Vietnam

The Ministry of Industry and Trade started investigating the case on August 24^th, 2020, the investigation process was carried out in accordance with the laws. On the basis of information collected from related parties, the Ministry of Industry and Trade has carefully considered and assessed the level of dumping of H-shaped steel products imported from Malaysia, the damages to the domestic industry as well as to assess the socio-economic impacts, including impacts on downstream industries and consumers.

According to Decision No. 1975/QD-BCT, the anti-dumping tax rate for some H-shaped steel products originating from Malaysia, holding HS codes: 7216.33.11, 7216.33.19, 7216.33.90, 7228.70.10 and 7228.70.90 is 10.64%. This tax rate is lower than the tax rate applied to H-shaped steel imported from China (about 22% on average) and also much lower than the proposed tax rate of the domestic manufacturing industry (16.30%). This anti-dumping tax is effective from August 21^st, 2021 and has an application term of 05 years, the term above could be changed or extended in accordance with the laws.

In order to have a basis for determining the origin of imported goods subject to anti-dumping tax, the Customs authority will check the proofs of origin of goods, including:

(i) Certificate of Origin (C/O); or

(ii) Documents certifying the origin of goods in accordance with the provisions of:

-ASEAN Trade in Goods Agreement;

-Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP);

-Free Trade Agreement between the Socialist Republic of Vietnam and the European Union (EVFTA);

-Free Trade Agreement between the Socialist Republic of Vietnam and the United Kingdom of Great Britain and Northern Ireland.

The above information is the regulation on application of official anti-dumping tax on some H-shaped steel products originating from Malaysia, organizations and individuals producing and exporting the above goods from Malaysia and relevant organizations and individuals need to know and implement according to the laws.

ANT Lawyers, a law firm in Vietnam always follow the legal developments to update client.  Our international trade dispute lawyers in Vietnam  and consultants represent client in international trade disputes including anti-dumping cases at Vietnam authorities.

Source ANTLawyers: https://antlawyers.vn/library/anti-dumping-measures-for-h-shaped-steel-products-from-malaysia-remain-in-place.html 

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Vietnam Promulgated Preferential Import-Export Tariff Schedule to Implement UKVFTA Agreement

On May 21, 2021, the Government of Vietnam issued Decree No. 53/2021/ND-CP on preferential export tariffs and special preferential import tariffs of Vietnam to implement the Free Trade Agreement between the Vietnam and the United Kingdom of Great Britain and Northern Ireland for the period 2021-2022 (“Decree No. 53/2021/ND-CP”).

Decree No.53/2021/ND-CP promulgating the Preferential Export Tariff and the Special Preferential Import Tariff of Vietnam to implement the Free Trade Agreement between the Socialist Republic of Vietnam and the Union United Kingdom and Northern Ireland (UKVFTA) period 2021 – 2022 and conditions to enjoy preferential export tax rates, special preferential import taxes under the UKVFTA. The specific tax rates for each year of each item are specified in the appendices of that Decree.

Accordingly, in order to enjoy the preferential export tax rate under the UKVFTA, goods exported from Vietnam that are eligible for the preferential export tax rate specified in Decree No.53/2021/ND-CP must meet the following conditions: (i) Being imported into the United Kingdom; (ii) Having a transport document (copy) showing that the destination is the United Kingdom; (iii) Having the import customs declaration of the export consignment of Vietnamese origin imported into the United Kingdom (copy and translation in English or Vietnamese in case the language is showed on the declaration is not in English).

In addition, imported goods eligible for special preferential import tax rates under the UKVFTA must fully satisfy the following conditions: (i) Belonging to the special preferential import tariff schedule specified in the Appendix II promulgated together with Decree No.53/2021/ND-CP; (ii) Being imported into Vietnam from: The United Kingdom or Vietnam (Goods imported from the free trade zone into the domestic market); (iii) Meeting the regulations on origin of goods and have proof of origin according to the provisions of the UKVFTA.

Information above are the provisions on the import and export tariff of goods under the UKVFTA, goods import and export enterprises need to pay attention to be able to apply the import preferential tariff, in order to bring new business highest benefit for the business.

ANT Lawyers in an international trade dispute law firm in Vietnam, recognized by Legal500, IFLR1000. We are an exclusive Vietnam member of Prea Legal, the global law firm network covering more than 150 jurisdictions. The firm provides a range of legal services to multinational and domestic clients. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

Source ANTLawyers: https://antlawyers.vn/library/vietnam-promulgated-preferential-import-export-tariff-schedule-to-implement-ukvfta-agreement.html 

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What is Statue of Limitation for Initiating Legal Action According to Arbitral Procedures?

Arbitration law always set the the limitation period for request of dispute resolution. This means that the law applies a specific period for parties to bring the dispute to the arbitration. According to law on arbitration 2010 (“LOA”), unless otherwise provided by specialized law, limitation period for initiating legal action according to arbitral procedures is two years from the time of infringement of lawful rights and interests.

 

Arbitration law firm in Vietnam

There is no regulation in arbitration law regarding consequence of expiration of limitation period, but Civil Code 2015 (“CC”) stipulates that: “if such time limits expire, the right to initiate such legal action shall be lost”. Arbitration council shall not resolve expired requests, which means council shall not judge which parties is right or wrong. Therefore, enterprise needs to request within the statutory time limits in order to be resolved. If not, the request shall not be considered although there was request and related fees. In addition, it should be noted that the Court only applies time limits regulation at the request of a party or the parties provided that such request is filed before the first trial court of first instance makes a judgment, a decision on settlement.

However, there has been cases of non-applicability of limitation periods. Specifically, a limitation period for initiating legal action for a civil case shall not apply in any of the following cases: (i) Request for the protection of personal rights not associated with property; (ii) Request for the protection of ownership rights, unless otherwise provided by Civil Code or relevant laws; (iii) Dispute over land use right as prescribed in the Law on land; (iv) Other cases as provided by law. For instance, dispute over reclaiming deposited property is under case of non-applicability of limitation periods. Specifically, deposited property still belongs to ownership of depositor although the property had been transferred to depositary and reclaiming property is a measure protecting the right of property ownership, while dispute over the protection of ownership rights is under case of non-applicability of limitation periods.

In practice, the time between the time period of filing a lawsuit and the time period of infringement of lawful rights and interests can be longer than two years if there is time periods excluded from limitation periods for initiating legal action or there is re-commencement of limitation period for initiating legal action.

The time period during which one of the following events occurs shall be excluded from limitation periods for initiating legal action: (i) An event of force majeure or other objective hindrance which renders the person with the right to initiate legal action for a civil case or make the request not able to do so within the limitation period; (ii) The person with the right to initiate legal action for a civil case or to make the request is a minor or a legally incapacitated person, a person with limited cognition and behavior control or a person with limited legal capacity, and does not yet have a representative; (iii) The representative of a minor or a legally incapacitated person, a person with limited cognition and behavior control or a person with limited legal capacity has not yet been replaced in case that the representative being natural person dies or the representative being juridical person ceases to exist or in case that the representative, for good reasons, cannot continue his/her representation.

The limitation period for initiating legal action shall re-commence in any of the following cases: (i) The obligor has acknowledged part or all of its obligations to the plaintiff; (ii) The obligor has acknowledged or fulfilled part of its obligations to the plaintiff; (iii) The parties have become reconciled. The limitation period for initiating legal action for a civil case shall re-commence from the date following the date on which the above event occurs. Having said that, it is important to consult with dispute lawyers in Vietnam for the effective dispute resolutions should dispute arise.

ANT Lawyers in an arbitration law firm in Vietnam, recognized by Legal500, IFLR1000. We are an exclusive Vietnam member of Prea Legal, the global law firm network covering more than 150 jurisdictions. The firm provides a range of legal services to multinational and domestic clients. 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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Can Employer Terminate the Labour Contract in Vietnam with Employee Due To Covid 19 Outbreak?

Due to intricate occurrence of Covid 19, many enterprises are forced themselves to reduce the number of employees for maintaining the operation financially. Specifically, the employer has to make difficult decision to terminate the labour contract with the employee. The termination of the labour contract has to be considered carefully because of potential legal risks brought up which dispute lawyers in labour should be consulted before execution. Within this post, we are not trying to resolve all cases but only aiming to brief some matters of concern for preparation.

 

Employment Dispute Lawyers in Vietnam

The employer could refer to the regulation in the Labor Code which allows “an employer may unilaterally terminate a labor contract if as a result of natural disaster, fire or another force majeure event as prescribed by law, the employer, though having applied every remedial measure, has to scale down production and cut jobs. Force majeure in this case is understood as (i) Enemy-inflicates destruction, epidemics (ii) Relocation or narrowing of the production and business sites, at the request of competent State agencies.

In particular, after applying corrective measures, over the time, considering enterprise’s financial potential is insufficient as well as the business production is reduced significantly due to epidemic, the employer may consider unilaterally terminate labor contract with employee. However, employer still have to abide by or ensure the rights to employee regarding the interests which employee is entitle to receive when being unilaterally terminated labor contract includes salary, severance allowance, social insurance, payment for untaken leave days, the tax payment which employer must paid for employee. Besides, employer also is subject to pay a compensation if consented by both sides are employer and employee.

Firstly, employer is obliged to pay salary to employee timely and fully as in the agreed labor contract by both parties;

Secondly, employer is responsible for paying the severance allowance to employee whom has worked regularly for full 12 months or longer at the rate of half of a month’s wage for each working year.

Thirdly, social insurance, employer is responsible for the fulfill payment of social insurance and perform the closing insurance book for employee after terminate the labour contract according to the law of social insurance.

Fourthly, if the income of employee subject to personal income tax, employer must extract from the income of employee to submit the tax to tax agency according to law on personal income tax.

ANT Lawyers – A labour dispute 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 service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

Source ANTLawyers: https://antlawyers.vn/law-firm-in-vietnam/can-employer-terminate-the-labor-contract-with-employee-due-to-covid-19-outbreak.html

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What is Agreed Matrimonial Property Regime of Spouses Under Vietnam Laws?

Husband and wife have the right to choose to apply the statutory or agreed property regime. Basic contents of an agreement on the matrimonial property regime (prenuptial agreement) includes: (i) Property determined as common property and separate property of the husband and wife;(ii) Rights and obligations of the husband and wife toward common property, separate property and related transactions; property to meet the family’s essential needs;(iii) Conditions, procedures and principles of property division upon termination of the property regime;(iv) Other related contents.

Agreed Matrimonial Property Regime of Spouses Under Vietnam Laws

When choosing to apply the agreed matrimonial property regime, husband and wife may reach agreement on determination of property as follows:(i) Matrimonial property includes common property and separate property of husband and wife;(ii) Husband and wife have no separate property and all property a spouse has before marriage or during the marriage period is common property;(iii) Husband and wife have no common property and all property a spouse has before marriage and during the marriage period is separate property of that spouse;(iv) Property is determined as otherwise agreed by husband and wife.

Although property regime is based on the wills of the parties, it still must comply with regulation of law. Agreed property regime shall be made in writing before their marriage and be notarized or certified. The agreed matrimonial property regime shall be established on the date of marriage registration. It should be noted that in case of applying the agreed matrimonial property regime, when establishing and making a transaction, a spouse shall provide a third party with relevant information. If a spouse fails to perform this obligation, the third party shall be regarded as acting in good faith and have his/her/its interests protected.

An agreement on the matrimonial property regime shall be declared to be invalid by a court when: (i) It fails to meet the conditions on effect of transactions;(ii) It violates one of the provisions in Article 29, 30, 31 or 32 of Law on marriage and family 2014;(iii) Its contents seriously infringe upon the rights of being supported and inherit and other lawful rights and interests of parents, children and other family members.

Specifically, both parties must still comply with the regulations on:

-General principles of the matrimonial property regime: (i) Husband and wife have equal rights and obligations in the creation, possession, use and disposition of their common property without discrimination between housework labor and income-generating labor; (ii) Husband and wife have the obligation to ensure conditions for meeting their family’s essential needs.; (iii) When the performance of property rights and obligations of husband and wife infringes upon lawful rights and interests of the wife, husband, their family or other persons, compensation shall be paid.

-Rights and obligations of husband and wife to meet their family’s essential needs: (i) Husband and wife have the right and obligation to conduct transactions to meet their family’s essential needs; (ii) In case husband and wife have no common property or their common property is not enough to meet their family’s essential needs, they shall contribute their separate property according to their financial capacity.

-Transactions related to the home being the sole domicile of husband and wife and transactions with third parties in good faith related to bank accounts, securities accounts and other movable assets which registration for ownership and use is not required according to regulation of law.

-In summary, although property regime is based on agreement of both parties, this written agreement still must comply with regulation of law and is not allowed to violate rights of other party or any other individual, organization. If such agreement violates above provisions, persons with related rights and interests may request a court to declare it invalid. According to regulation of law, following agencies, organizations and individuals are entitled to require the Court to declare matrimonial property regime of spouse invalid: (i) Spouses have agreed on property regimes; (ii) Person whose right and legal interest violated due to matrimonial property regime of spouse and his/her guardian.

Once property regime agreement is mad, are both parties entitled to edit?

In case of applying the agreed matrimonial property regime during the marriage period, husband and wife may reach agreement to modify and supplement some or all contents of that property regime or apply the statutory matrimonial property regime. The agreement modifying and supplementing the matrimonial property regime shall be notarized or certified in accordance with law. The agreement modifying and supplementing contents of the matrimonial property regime shall take effect on the date it is notarized or certified. A spouse shall provide a third party with relevant information. Property rights and obligations arising before the time of modifying and supplementing the matrimonial property regime must remain legally valid, unless otherwise agreed by involved parties.

Upon divorce, the following case will apply statutory matrimonial property regime, it means that parties will reach agreement, if they fail to reach agreement, at the request of a spouse or both, a court shall settle it according to Law on marriage and family: (i) There is no written agreement of matrimonial property regime of spouse;(ii) Written agreement of matrimonial property regime of spouse is declared completely invalid by the court.

Case will apply agreed matrimonial property regime: There is a written agreement of matrimonial property regime and this written agreement is not declared completely invalid by the Court. The following cases will apply provisions of Law on marriage and family:(i) The agreement is insufficient or unclear;(ii) The matters are not agreed by both husband and wife.

It is important that spouses consult with marriage and family dispute lawyers in Vietnam if potential disputes would lead to divorce for proper preparation before filing a lawsuit.

ANT Lawyers – a Divorce Dispute Law Firm in Vietnam has experience lawyers with divorce procedures or dispute matters of marriage, assets, properties in Vietnam. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

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