How To Set-up Trading Company in Vietnam

Investment in setting up trading company in Vietnam is considered as investment in conditional investment areas

Once an underdeveloped country, in the last two decades Vietnam has shown an incredible growth in the world economic scene, especially in the criteria of investment attraction. For a foreign company that is interested in expanding the business in a new country or region, Vietnam is a promising destination. In order to start a company or specifically a trading company in Vietnam, foreign investor should comprehensively understand the formality and function of the legal entity to be formed according to Vietnam Law. The consultancy and guidance of skilled and qualified lawyers in Vietnam law firm throughout the process shall mostly be needed.

The legal basis for a foreign company to set up a company in Vietnam is stated in the Enterprise Law of Vietnam: foreign organizations and individuals will be entitled to establish and manage enterprises in Vietnam in accordance with this law, with some exceptions. Foreign investors may invest in the form of 100% foreign- owned capital to establish limited liability companies, joint-stock companies, partnerships or private enterprises under the provisions of the Enterprise Law and relevant laws.

The foreign investor shall mostly needs to fulfill the investment registration procedures at provincial-level state agencies in charge of investment in order to be granted the investment certificates, in accordance with Vietnam law in investment. The dossier required for the investment registration shall comprise of an examination dossier, papers showing the capability to satisfy the conditions which the project is required by law to satisfy, for investment projects in conditional investment domains i.e. specific goods to be traded at HS code level, experience in trading area, how the trading procedures would be carried out, potential business in Vietnam.

In particular, for investment capital, it should be noted that, trading company needs to commit larger investment in terms of capital, since its function is to identify competitive suppliers, negotiate and purchase their products and sell them through a distribution network in Vietnam. In the meantime, the investor needs to have experience in trading to run the business smoothly and efficiently. The investor should explain why the company would contribute to the development in Vietnam when applying for investment license at Department of Planning and Investment, and Ministry of Trade and Commerce.

Our lawyers of foreign investment practice at ANT Lawyers are available to advise and provide client with service and representation in Vietnam.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers Foreign Investment Practice or contact our Law firms in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

Read More

Penalties on Working Without Work Permit in Vietnam

Vietnam has become an attractive destination for foreigner investors due to the impressive development of socio – economic in recent years. This is such a good opportunity for Vietnamese enterprises to get cooperation in business with foreign partners.

To take advantage of the opportunities to be the pioneer and market share, many of them have demand in employees with good skills and qualifications. To meet these requirements, more and more companies hire foreign workers for specific positions which might lack of human resources within Vietnam territory.

According to Labor Code 2012, the employer wishing to recruit the foreign workers has to explain their labor demand to the People’s Committee of provinces and obtain written approval from this agency. Pursuant to this written approval, the employer shall submit the application for the work permit to the Department of Labor, War Invalids and Social Affairs of the province where the planned working place of such foreign workers is located.

A foreign citizen wishing to work in Vietnam must fully meet the following conditions:

-Possessing full civil act capacity;

-Possessing technical and professional qualifications and skills and health appropriate to the work requirement;

-Not being a criminal or subject to penal liability examination according to Vietnamese and foreign laws;

-Possessing a work permit granted by a competent Vietnamese state agency, except the cases specified in Labor Code.

Therefore, based on regulations of the Labor Code of Vietnam, except for the foreign citizens exempted from work permit i.e. investor of company established in Vietnam, all of cases the foreign citizens wishing to work in Vietnam shall be subject to work permit application. A foreign employee shall produce his/her work permit when carrying out immigration procedures or upon request of a competent state agency.

In case foreign citizens who do not belong to work permit exemption being found working in Vietnam without work permit, that person shall be considered violation of the law of Vietnam. In addition, the employer that uses the violated employee without work permit shall be punished accordingly.

According to Decree No. 95/2013/ND-CP amendments to the government’s Decree No. 95/2013/ND-CP dated August 22, 2013 on Penalties for administrative violations against regulations on employment, social insurance, social insurance, and Vietnamese guest workers:

i) Foreign citizen that working without work permits, except for the cases in which the work permit is exempt shall be expelled.

ii) Employers who employ foreign workers in Vietnam without work permits or certificates of exemption from work permits, or employ foreign workers using expired work permits shall be implied:

a. A fine from VND 30,000,000 to VND 45,000,000 if the violation involves 01 – 10 workers;

b. A fine From VND 45,000,000 to VND 60,000,000 if the violation involves 11 – 20 workers;

c. A fine From VND 60,000,000 to VND 75,000,000 if the violation involves more than 20 workers;

Additional penalty: The employer who commits the violation mentioned herein shall have its operation suspended for 1 – 3 months.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers or contact our Law Firms In Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

Read More

What Goods Allowed to Be Imported into Vietnam?

Foreign owned companies in Vietnam wishing to import and distribute physical goods into Vietnam must comply with many regulations. It is imperative that the right to conduct import business of foreign investors and FDI companies differ from the right of Vietnamese traders having no foreign direct investment capital because trading activities are considered conditional investment area.

1.General Principles of Imported Goods

In principle, as other countries, the importers have to follow the general rules when importing and distributing physical goods into Vietnam:

-Not to import goods specified under the list of goods banned from import or suspended from import provided, published by Vietnam government;

-Follow the guideline or import regulations and conditions required by ministries and ministerial-level agencies. There are specific conditions for importing certain goods which the importers have to follow i.e. certain medical equipment have to be approved by the Ministry of Health; Food, cosmetics products need to be testedReceiving and transmitting telecom equipment must be inspected by Ministry of Information and Communication; Books, CDs will be checked and scanned for contents to be approved by Ministry of Cultures, Sport and Tourism; Equipment must satisfy energy, environmental regulations to be inspected and labeled by Ministry of Science and Technology…

-Implement other relevant laws, commitments of the Socialist Republic of Vietnam in treaties which it has signed or acceded to, and the roadmap announced by the Ministry of Industry and Trade.

2.Goods Prohibited to Be Imported into Vietnam

-For the goods being banned to be imported and distributed in Vietnam, the importers have to follow strictly to avoid penalties:

-Weapons, ammunitions, explosives (excluding industrial explosives), military technical equipment.

-Assorted fireworks, sky lanterns, assorted devices causing interference to vehicle speedometers.

-Used consumer goods: Textiles and garments, footwear, clothes; Electronic appliances; Refrigerating appliances; Home electric appliances; Medical equipment; Interior decoration goods;

-Assorted publications banned from dissemination and circulation in Vietnam

-Assorted cultural publications banned from dissemination and circulation or decided to be suspended from dissemination and circulation in Vietnam.

-Right-hand drive means of transport; assorted automobiles and their spare parts which have their frame or engine numbers erased, modified or tampered with; Assorted motorcycles, special-use motorbikes and motorbikes which have their frame or engine numbers erased, modified or tampered with

-Used supplies and vehicles

-Chemicals in Annex III of the Rotterdam Convention.

-Pesticides banned from use in Vietnam.

-Wastes and scraps, refrigerating equipment using C.F.C.

-Products and materials containing asbestos of the amphibole group

-Schedule-I toxic chemicals; Chemicals on the list of banned chemicals

It is important for foreign trader wishing to establish a trading company in Vietnam to not only study the market demand in Vietnam but also the country’s law on import, export, customs law to ensure their compliance during the operation. If doubted, the Client is suggested to reach out for help and advisory of law firm in Vietnam by qualified lawyers in the area of import, export and customs.

How ANT Lawyers Could Help Your Business?

ANT Lawyers is a law firm in Vietnam located in the business centers of Hanoi, Danang and Ho Chi Minh City. We provide convenient access to our clients. Please contact us to book your time in advanced to let us provide our best service.

Call us at +84 28 730 86 529 or send us email ant@antlawyers.vn

Read More

The 66th Asian Business conference in Danang

On July 4th, 2019 the People’s Committee of Da Nang organized the 66th Asian Business Conference about business cooperation between Vietnam and Japan. Representatives of 60 Vietnamese enterprises and 130 enterprises from Japan attended showing intersts in economic cooperation.

The representatives of Japanese companies provided many useful information about business investment cooperation opportunities in the fields of information technology, high technology, health, education …After 45 years from the establishment of diplomatic relations, Japan has become one of the Vietnam’s leading partner in many areas, becoming the largest ODA provider, and the second largest FDI investor in Vietnam.

Japan is leading countries investing in Da Nang with more than 180 projects and the total investment capital is nearly 890 million USD, focusing on the fields of industrial production, high technology, services, real estate and travel. The Da Nang’s enterprises in supporting industries, IT, textiles, fisheries, education … are always willing to cooperate with Japanese partners to expand markets, access technology and new management system.

It is obvious that Japan is one of strategic partners, a key market with strong financial and public potential, including high-tech industry, information and communication technology and supporting industries as well as services and education sectors. The city government always strives to create favorable conditions for Japanese investors to establish and implement effective projects, as well as implement solutions to improve the city’s investment environment such as infrastructure construction, high-tech parks and centralized information technology zones, planning new industrial parks with attractive investment preferential policies, promoting administrative procedure reforms and focusing on human resource training qualified, skilled … to meet the demand of the investors.

The Conference creates opportunities for interaction and discussions between Vietnamese enterprises and Japanese enterprises, between Da Nang city and investors in area of manufacturing, construction, healthcare, tourism, education, science and technology.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers Foreign Investment Practice or contact our Law firms in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

Read More

Da Nang to Cooperate with Singapore in Foreign Direct Investment

On July 19th,2019, Da Nang City People’s Committee held a “Singapore-Danang Investment Connection Seminar”, which leaders of the city’s departments and sectors met many major companies from Singapore under the Singapore Business Federation and Singapore Business Development Agency’s arrangement with purpose of seeking investment opportunities in Da Nang taking advantage of the dynamic city which investors from Singapore could set up company and make direct investment.

Singaporean businesses appreciated the model of building and developing the smart city of Da Nang and the achievements in socio-economic development of Da Nang in recent years, including digitizing government and protecting the environment in Da Nang.

Singapore is well-known as a country that has developed strongly in socio-economic achievements, has plans for environmental protection, pollution treatment, high-tech development and tourism. These are the business lines that Danang needs to develop for the purpose of building the city in the future.

Currently, many Singaporean businesses have chosen Vietnam as an investment destination and are willing to cooperate with Danang in many business lines such as banking finance, education, information technology, etc. The leaders of Da Nang always appreciate Singapore’s experience of building smart country, innovation and start-up businesses; at the same time, they emphasized that Singapore is a potential market that Da Nang city focuses on investment promotion in the coming time.

Singapore is the 4th country in total of FDI investors in Vietnam, the total investment capital in the first 6 months of 2019 from Singapore is 2.119 million USD and is the 3rd largest country in terms of FDI in Vietnam, with a total investment capital is 49,161 million USD. Investors invested in many business lines such as manufacturing technology, wholesale, retail, information technology,

Da Nang wishes to attract many Singaporean investors who will choose the city as the place to invest in the future. The leader of the city always strives to create the best conditions for Singaporean investors to invest in the city, in order to achieve socio-economic development in the future.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers Foreign Investment Practice or contact our Law firms in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

Read More

Non-Compete Agreement In Labor Contract

The principle “freedom to work” is recognized and respected by the Labor Code 2012. However, this regulation may harm legitimate business interests of employers when employees, during the performance of the labor contract or especially after the termination of the labor contract, reveal the business or technology secrets to compete with the employers. Therefore it is necessary to create the limits on the freedom to work, for the purpose of preventing workers from revealing employers’ business or technology secrets. Law in many countries around the world has recognized “Non-Compete Agreement” as a tool to enforce security programs.

The Labor Code 2012 and sub-law documents do not mention to the definition of “Non Compete Agreement”, but make the provision that: “When an employee performs a job which is directly related to business or technology secrets as prescribed by law, the employer may reach a written agreement with the employees on the content and duration of protection of business or technology secrets, and benefits and compensation in case of violation by the employees”.

The definition of “Non-Compete Agreement” is inferred by explaining the provisions of law and referred to the articles of legal experts. “Non-Compete Agreement” is a legal contract between an employee and an employer, for a purpose of preventing the worker from competing directly or working for a competitor during the performance of the labor contract or especially after the termination of the labor contract. Thereby, we can infer that only when employers have business or technology secrets, they have the right to make Non-Compete Agreement. Moreover, the legitimate business interests that are protected must be legal, unique, influence the maintenance, stability and development of business activities.

Analyzing the provision “Non-Compete Agreement”, we can conclude that, the employees adjusted by the “Non-Compete Agreement” is the worker who is directly involved in business or technology secrets (such as the senior managers, senior technicians and others are obliged to keep business or technology secrets). The Labor Code 2012 has regulated that the “Non-Compete Agreement” must be on text.

The provision of Non-Compete Agreement is necessary for employers to protect business or technology secrets, but it is difficult for workers to find job after the contract terminates. Therefore, Non-Compete Agreement should balance the interests between employers and employees by setting reasonable limits in time, geographic scope and particular industry or activity.

(i) For restriction on time, the Labor Code 2012 does not specify restriction period or the point of starting restriction period. This is entirely upon the parties. However, Non-Compete Agreement can not be enforced unless it specifies a reasonable restriction period. Referring to the law of some European countries (Germany, France) and Asian countries for example in China, the maximum restriction time is 02 years, to ensure that employees have conditions to find new jobs.

Moreover, it provides opportunities for employers to motivate, improve the technology and business secrets to develop. On the other hand, law in some other countries distinguishes between highly skilled workers (group 1) and unqualified employees (group 2). Spanish law is a typical example, the maximum restriction period is two years for workers in group 1 and six months for group 2.

(ii) Restriction on geographic scope is not regulated in Vietnamese law. Meanwhile, most countries such as France, China and Russia all regulate that the restriction is on the whole country. However, due to differences in society, economic and education conditions, Vietnam can hardly regulate like that. On the other hand, when making the provisions of the restrictions on geographic scope, it is necessary to base on the performance of the company, the method of production, the size of and the type of company.

(iii) For restriction on particular industry or activity, most courts tend to consider the work that employees will work in the new labor contract. Normally, if the new job is similar to the old one, it will not be approved by the court. Under the Labor Code 2012, the content of restrictions on particular industry or activity when employees enter into agreement include: (i) obligation to keep trade information confidential (business secrets, technology secrets) ; (ii) not be able to work for the competitor of former employers or to conduct his own business competing with former employers.

Labor Code in our country does not specify the scope of the restriction on particular industry or activity, it depends entirely on the will of the parties. Non-Compete Agreement can not be applied to all jobs, but only to those who hold business and technology secrets. For every type of work there will be a different range of restrictions. The scope of the restriction is not exceeding the employees’ professional capacity and ensuring the opportunity of works in the future.

The benefit that employees receive when signed the Non-compete Agreement can be the opportunity for promotion, high salary, and commendation if the Non-Compete Agreement is made while the labor contract is valid. If the Non-Compete Agreement is applied after the labor contract terminates, employees shall receive the compensation. The amount of compensation is upon the agreement of the parties and must be satisfactory with the restriction of job opportunities. There are some cases that employees may not be entitled compensation are to violate the Non-Compete Agreement or die or prison sentence.

According to the Labor Code 2012, in case of violating the non-compete contract, employees have obligation to compensate, but it does not give specific compensation amount as well as the method of compensation. In order to claim compensation, employers must demonstrate these following factors: (1) the violation of the Non-Compete Agreement; (2) actual damage (the lost revenue and profit of the employer); (3) the causal relationship between the infringement and the damage; (4) fault of the employee. The amount of compensation must correspond to the amount of lost revenue or profit. In addition, employees must return the non-owned assets that are exploited and developed to compete with former employers. Moreover, employees must repay the compensation and other benefits paid by former employers if agreed in the agreement.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers Civil Matters Practice or contact our Law Firms in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

Read More

Child Adoption by Foreigners

Presently, there are many foreign people want to adopt a Vietnamese. Besides, the law of Vietnam also has strict regulations for child adoption by foreigners.

First is the adoption of specific child by foreigners. The Adoption Act 2010 defined that the Vietnamese residing abroad and foreigners permanently residing overseas are allowed to adopt specific child in the following cases:

-As stepfather or stepmother of the adopted person;

-As uncle or aunt of the adopted person;

-Has adopted children who are siblings of the children that are adopting;

-Adopt children with disabilities, HIV / AIDS or other fatal diseases;

-As foreigners who are working and studying in Vietnam for at least 01 years.

In which the 4th case is a special case that are encouraged by the State with simpler procedures than other cases.

The order and procedures for adoption of child will be conducted as follows:

The profile of child adopting people includes:

+ Application for adoption by name;

+ A copy of the passport or replacing document that have the same value;

+ The written permission for child adoption in Vietnam;

+ The psychological and family investigation;

+ Documents certifying health status;

+ Documents certifying income and assets;

+ Judicial record;

+ Documents certifying marital status;

+ Documents evidencing eligible for child adoption by name.

+ In case of specific child adoption for children over 5 years old and two or more siblings, the record must clearly state the psychological preparation plan for children, preparing conditions for children to integrate into the new family, culture and society environments.

The above documents are issued and certified by the competent authority where the child adopting people permanently reside. To be certified by the State of Vietnam, it should be certified through the procedure of consular legalization.

The profile of children to be adopted includes:

+ Birth certificate

+ Certification of health issued by the district or higher health authorities;

+ Two full body and looking straight images, which was taken within 06 months

+ Documents about the noteworthy characteristics, preferences and habits of children.

These papers are issued by nurturing organizations or natural parents / guardians of children.

Profiles of the child adopting person and the child being adopted are submitted directly at the Bureau for adoption. The case that cannot submit the profile directly at the Bureau for adoption, the child adopting person have to authorize by written document their relatives residing in Vietnam to submit the profile at the Bureau for adoption or send the profile through post office in the form of guarantees.

In the procedure of adoption of specific children with disabilities, HIV / AIDS or suffering from serious diseases, Vietnam law allows the free implementation of procedures to find alternative families and introduce children for adoption. The meaning of this is to shorten the procedure, creating condition for these children to be adopted and nurtured in an enabling environment.

After receipt of the application for adoption, Bureau of adoption will check and appraisal the profile to determine that the child adopting people was certified by the competent authorities of the country where he or she resides that he or she satisfy the eligibility for child adoption under the laws of that country and under the laws of Vietnam.

Towards the child to be adopted, after receiving profile from natural parents or guardians of the child, Bureau for adoption has the responsibility to inspect children’s record, conduct consultation with the natural father / mother or the guardians of child about the child adoption for foreigner during 07 working days.

Within 07 working days from the expiration date of changing opinion about the child adoption for foreigner of the natural parents or guardians of children, if children are eligible to be adopted by foreigner, who are entitled to adoption by name, Bureau for adoption will report the Department of Justice, Department of Justice will certify by document that the children eligible for adoption by foreigner. Finally, Department of Justice submits to the Provincial People’s Committee decided to allow the foreigner to adopt the children.

Second is the adoption of child not by name with foreign element. The adoption of child not by name with foreign element is the cases when Vietnamese residing abroad, foreigners reside in the country in which that country is a member of international treaties on child adoption with Vietnam and adopt Vietnamese children; Vietnam citizens residing in Vietnam adopt foreign children; foreigners permanently residing in Vietnam adopt Vietnamese children.

For the adoption case that not by name, the order and procedures will include:

+ The profile of people that want to adopt children should be submitting to the Bureau for adoption through the adoption agencies of that country that are licensed to operate in Vietnam. If that country does not have adoption agencies licensed to operate in Vietnam, the adoption profile should be submitting to the Bureau for adoption through diplomatic representative offices or consular office of that country in Vietnam.

+ The profile of children being adopted will be submitted by natural parents or guardians of the children at the Bureau for adoption.

+ The Bureau for adoption receives, inspect and evaluate profile of the child adopting people and children being adopted.

Compared to the case of adoption by name with children with disabilities, HIV / AIDS or other serious diseases, the case of adoption not by name, the Department of Justice has to implement the procedure to find alternative family and introduce children for adoption. The meaning of these two procedures is to encourage local Vietnamese permanent residing in Vietnam to adopt Vietnamese children, enabling Vietnamese children to live, learn and develop in their own homeland. Only when the above procedure to find alternative family and introduce children for adoption have finished without any local people want to adopt that children, the Department of Justice will consider deciding for the children to be adopted by foreigner.

The notice period to find alternative family is regulated as 60 days, during this period, if any Vietnamese wants to adopt children, they should contact the Commune People’s Committee where children resides to consider and settle the adoption. If time runs out 60 days, the Department of Justice has to prepare a list of children who need to find alternative families and submit to the Ministry of Justice.

On the other hand, within 30 days after receiving profile from foreigner that want to adopt Vietnamese children, the Department of Justice has to review and introduce children to be adopted on the basis of children with no domestic adoption. After introducing children to be adopted, the Department of Justice reported the Provincial People’s Committee for comments.

The case that the Provincial People’s Committee disagrees, they have to send a written document stating the reasons and submit to the Department of Justice. On the other hand, the case that the Provincial People’s Committee agrees, within 07 working days, the Provincial People’s Committee decided for children for abroad adoption.

How ANT Lawyers Could Help?

Please click here to learn more about ANT Lawyers Marriage and Family or contact our lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

Read More

Employee Subject to Unilateral Termination of the Labor Contract Could Claim Unemployment Insurance

Unemployment insurance is a measure to assist workers in a market economy. In addition to providing financial support to stabilize the lives of employees during the period of unemployment, the main purpose of unemployment insurance is to help the unemployed to find a suitable and stable job, through vocational training, counseling and job referral.

Work permit in Vietnam

When the labor contract is unilaterally terminated by the employee, the employee does not need to have a certificate from the employer that the legal termination is legal, to be eligible for Unemployment Insurance (UI).

Within 03 months since the date of termination of the labor contract, the employee who doesn’t obtain a new job and wish to receive UI only need to submit an application for unemployment insurance and one of the document following documents:

i) The labor contract or contract has expired or has been completed under a labor contract;

ii) Resignation decision;

iii) Decisive dismissal;

iv) Disciplinary decision on dismissal;

v) Notice or agreement to terminate the labor contract or contract of employment.

The unemployed shall receive a Decision on unemployment insurances within 15 working days from the filing date. From the 16th day, the unemployed shall be entitled to unemployment insurance as requested.

We at ANT Lawyers constantly follow the changes in the labour to provide legal update to clients

Unemployment insurance is a measure to assist workers in a market economy. In addition to providing financial support to stabilize the lives of employees during the period of unemployment, the main purpose of unemployment insurance is to help the unemployed to find a suitable and stable job, through vocational training, counseling and job referral.

When the labor contract is unilaterally terminated by the employee, the employee does not need to have a certificate from the employer that the legal termination is legal, to be eligible for Unemployment Insurance (UI).

Within 03 months since the date of termination of the labor contract, the employee who doesn’t obtain a new job and wish to receive UI only need to submit an application for unemployment insurance and one of the document following documents:

i) The labor contract or contract has expired or has been completed under a labor contract;

ii) Resignation decision;

iii) Decisive dismissal;

iv) Disciplinary decision on dismissal;

v) Notice or agreement to terminate the labor contract or contract of employment.

The unemployed shall receive a Decision on unemployment insurances within 15 working days from the filing date. From the 16th day, the unemployed shall be entitled to unemployment insurance as requested.

We at ANT Lawyers constantly follow the changes in the labour to provide legal update to clients

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers Civil Matters Practice or contact our Law Firms in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

Read More

Issuance of Work Permit for Foreigner Online

From October 2nd 2017, the issuance of work permits to foreign employees working in Vietnam via Internet will be applied in accordance with the guidance of Circular No. 23/2017/TT-BLDTBXH issued by the Ministry of Labor – Invalids and Social Affairs on August 15th 2017.

Accordingly, the issuance and re-issuance of work permits for foreigners will be made via the electronic portal: http://dvc.vieclamvietnam.gov.vn. Employers must register their account to log into the Portal.

Before at least 7 working days, from the date the foreign worker intends to commence work, the employer must declare the information in the declaration form and submit the application for work permit via the electronic portal. The dossier includes: The declaration form and enclosed papers in accordance with the provisions of law on e-transactions and management of foreign laborers working in Vietnam; if the attached documents are in the form of paper, the employer must convert to electronic versions like pdf, doc, docx or jpg.

Within 5 working days from the date of receiving the dossier, the licensing agency shall reply via email to the employer. If the dossier is invalid, the licensing agency must clearly state the reasons.

Upon receipt of the result of notification of valid dossiers, the employers shall submit directly or by post the originals of the work permit application dossiers to the licensing agency for inspection, comparison and archive regulations. Within a maximum of 08 working hours from the date of receipt of the original application, the licensing agency shall return the result to the employer.

This Circular comes into effect from October 2nd 2017.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers or contact our Law Firms In Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

Read More

Labour Matters and Labour Legal Compliance

The labor management is one of the most important matters in the operation of enterprises. For the employee, he or she has to fulfill the job requirements as per labour contract, follow internal labour regulations, and work under the supervision of the employer. For employer, complying with regulations include paying salary, ensuring benefits, and other mandatory labour compliance as per labour laws and collective labour agreements signed.

The following recaps the labour matters and labour legal compliance according to Vietnam labour laws:

-To make reports on labor use according to the provisions of Article 6, Circular No. 23/2014/TT-BLDTBXH dated August 29th 2014 (Circular 23).

-To make periodical reports on the use and change of labor according to the provisions of Point d, Clause 2, Article 6 of the Labor Code 2012 and Clause 2, Article 8 of Decree No. 03/2014/ND-CP and Clause 2, Article 6 of the Circular 23.

-To make and use labor management books as guided in Article 7 of Circular 23.

-Build and send wage scales, payroll, technical standards, titles, professional standards and labor norms in accordance with Article 93 of Labor Code 2012 and Chapter III of Decree No. 49/2013/ND-CP dated May 14th 2013

-To participate and pay social insurance, health insurance, unemployment insurance for employees in accordance with current law.

-To construct and register the labor regulations of the unit in accordance with Article 119, Clause 1, Clause 2, Article 120 of the Labor Code 2012, Chapter V of Decree No. 05/2015/ND-CP dated January 12th (Decree 05) and Chapter III of Circular 47/2015/TT-BLDTBXH dated November 15th 2015.

-To develop and promulgate the Grassroots Democracy Regulation; Statute of periodical dialogue in the workplace as stipulated in Decree 60/2013/ND-CP dated June 19th 2013

-To negotiate, sign and send the Collective Labor Agreement to the provincial labor authority in accordance with Chapter V of the Labor Code 2012, Chapter III of Decree 05 and Article 3 of Circular 29/2015/TT-BLDTBXH dated July 31st 2015 (this is optional).

-To make explanatory reports on the demand for use, the procedures for the grant and re-grant of work permits and the implementation of reporting regimes according to the provisions of Decree No. 11/2016/ND-CP dated March 2nd 2016 and Circular 40/2016/TT-BLDTBXH dated October 25th 2016 (if employing foreign workers).

-To formulate and promulgate the Regulation on evaluation of the performance of tasks as provided in Clause 1, Article 12 of Decree 05 (This content is part of the company’s working regulations and we must have this content to be able to unilaterally terminate the labor contract with the employee under Clause 1, Article 38 of the Labor Code 2012).

-To carry out the procedures for the establishment of a grassroots trade union organization in accordance with the provisions of Paragraphs 1 and 3 of Article 189 of the Labor Code 2012 and Article 5 of the Trade Union Law 2012 (This is not mandatory but depends on the quantity of workers want to join the union of the company).

-To report on occupational accidents, technical incidents causing serious unsafety and occupational hygiene at the unit as provided in Clause 1, Article 36 of the Law on Occupational Safety and Hygiene 2015 (if any); Periodically report on occupational accidents according to the provisions of Clause 1, Article 24 of Decree No. 39/2016/ND-CP dated May 15th 2016 (Decree 39).

-To report annually on occupational safety and health as provided in Article 10 of Circular 07/2016/TT-BLDTBXH dated May 15th 2016

-To declare the fatal occupational accident or serious injury of 2 or more laborers as stipulated in Clause 1, Article 34 of the Law on Occupational Safety and Hygiene 2015; Article 10 of Decree 39 (if any).

-To monitor, manage and declare the use of machines, equipments and materials with strict requirements on labor safety in accordance with Articles 30 and 31 of the Law on Occupational Safety and Hygiene, Article 16 of Decree 44/2016/ND-CP dated May 15th 2016 (Decree 44) (if any); Circular 53/2016/TT-BLDTBXH dated December 28th 2016

-To arrange full-time officials working in occupational safety and health in accordance with Article 36 of Decree 39.

-To arrange staff to work in the health sector in accordance with Article 37 of Decree 39.

-To provide material allowances to laborers working under dangerous and harmful conditions (if any) according to the provisions of Article 24 of the Law on Occupational Safety and Hygiene 2015; Circular 25/2013/TT-BLDTBXH dated October 18th 2013

-To review, classify and organize occupational safety and health training for laborers as stipulated in Article 14 of the Law on Occupational Safety and Health 2015; Article 17 of Decree 44.

-To organize health examination and treatment of occupational diseases for laborers according to the provisions of Article 21 of the Law on Occupational Safety and Hygiene 2015.

-To compile the workers’ health records and labor sanitation dossiers according to the provisions of Circular No. 19/2016/TT-BYT dated June 30th 2016

-To allocate and monitor personal protective devices for laborers according to the provisions of Article 23 of the Law on Occupational Safety and Hygiene 2015; Circular 04/2014/TT-BLDTBXH dated Feruary 12th 2014

-To develop and implement an annual plan for occupational safety and health; Occupational safety and health regulations of the enterprise for each working area; Safe working methods for each type of work; Control of risk and harmful factors; Risk assessment on occupational safety and health; The plan for handling technical incidents causing serious unsafety and emergency rescue as provided in Articles 15, 18, 76, 77 and 78 of the Law on Occupational Safety and Hygiene 2015.

-To develop a plan for implementation of the month of action on occupational safety and health in accordance with Circular 02/2017/TT-BLDTBXH dated February 20th, 2017

It is important the company to retain law firm in Vietnam with labour expertise to avoid non compliance and disputes to be arisen.

How ANT Lawyers Could Help Your Business?

The changes of laws will be monitored by ANT Lawyers. For advice or service request, please contact us via email ant@antlawyers.vn or call +84 28 730 86 529

Read More

How to Obtain Business Registration Certificate in Vietnam?

Every organization and individual wishing to set up a foreign owned company in Vietnam shall need to meet some specifics conditions as promulgated under the Law on Investment and Law on Enterprise. In specific areas being considered as conditional investment, the investor shall also need to consult with the law governing the area of investment. Once the investment registration certificate is completed, the investor has the obligation to apply for enterprise registration.

The procedure to register for a certificate of enterprise registration of a joint stock company or limited liability with two or more members are herein mentioned:

Dossiers:

i) Application form for enterprise registration

ii) The company’s charter.

iii) A list of founding shareholders and shareholders being foreign investors/ a list of capital contribution members.

iv) Valid copies of:

Copies of the ID card or other ID papers of founding shareholders and foreign investors/members being individuals; list of authorized representatives of foreign shareholders being organizations.

Decision on establishment, certificate of business registration, or an equivalent document of the organization and the letter of authorization; the ID card or other ID papers of the authorized representatives of founding shareholders and foreign investors being organizations.

If shareholders are foreign organizations, the copy of the certificate of business registration or an equivalent document must be notarized, legalized and authenticated.

The Certificate of Investment registration of the foreign investors as prescribed by the Law on Investment.

State Authority: Business registration office of the province where the enterprise’s headquarters is situated.

Period: within 03 working days from the full receipt of the dossiers

Result: Business registration office shall issue the certificate of enterprise registration or if the application is not satisfactory, business registration office shall inform the applicant of necessary revisions and supplementation to company.

In general, Vietnam government encourages foreign direct investment. If the investor faces challenges at state authority, whom do not issue notification or request of supplementation to the application for enterprise registration, the investor cold lodge a complaint as prescribed by regulations of law on complaints and denunciation to the state authority to protect its right in doing business and investment in Vietnam. A law firm in Vietnam with expertise in both business registration and dispute resolution could assist the investor in the process.

The enterprise is entitled to do business from the issuance date of the certificate of enterprise registration. For conditional business lines, enterprises are entitled to engage in conditional business lines if they satisfy all conditions and are capable to maintain fulfillment of such conditions throughout their operation.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers Foreign Investment Practice or contact our Law firms in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

Read More

Hau Giang Reduces 50% Investment Licensing Time

Hau Giang province affirmed to speed up administrative procedures reformation, reducing 50% of the time for granting investment licenses and business registration, creating favorable conditions for investors when they set up business.

Foreign InvestmentLawyers in Vietnam

In which, Hau Giang province is calling for investment in 7 key projects, including industrial zone infrastructure development, hi-tech agriculture and ecotourism… with a total investment of nearly 300 million USD.

According to the vice chairman of Hau Giang People’s Committee, besides the policies in accordance with general regulations, localities also have their own incentive mechanisms for investors such as tax incentives, land rent exemption and reduction, investment support for manufacturing, preservation and processing facilities…, especially projects for sustainable development of agriculture and high technology application…

Furthermore, Department of Planning and Investment of Hau Giang province affirmed that the local authorities will shorten the maximum time for carrying out procedures, creating favorable conditions for enterprises and investors. Specifically, the business registration procedure is 3 days according to the law, but the locality can complete in 1.5 days. Regarding the investment policy, the law regulates 32 days but it is shortened to 15 days by the locality; time to receive and appraise for issuing investment certificate is only 3 days; discounted 2 days as prescribed.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers Foreign Investment Practice or contact our Law firms in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

Read More

Construction Contract in Vietnam

In Vietnam, like other countries companies seeking to build an office building or industrial facility work with the contractor through a construction contract.

There are several types of construction contract used in the construction industry depending on the level of control from parties involved in terms of investment, responsibilities and duration.

Construction lawyers inVietnam

Fixed price is a type of construction contract that offer a total fixed priced for all construction related activities. This contract type could include incentives or benefits for early termination, or can also have penalties, called liquidated damages, for a late termination. This contract type is preferred when a clear scope and a defined schedule has been reviewed and agreed upon.

Cost plus contract is a type of construction contract involves payment of the actual costs, purchases or other expenses generated directly from the construction activity. This type of contract must contain specific information about certain pre-negotiated amount (some percentage of the material and labor cost) covering contractor’s overhead and profit. Costs must be detailed and should be classified as direct or indirect costs.

Time and material contract is usually preferred if the project scope is not clear, or has not been defined. The owner and the contractor must establish an agreed hourly or daily rate, including additional expenses that could arise in the construction process. The costs must be classified as: direct, indirect, mark-up, and overhead. Sometimes the owner might want to establish a cap or specific project duration to the contractor that must be met, in order to have the owner’s risk minimized.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers Real Estate or contact our Law firms in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

Read More

Obligations of Cosmetics Manufacturers and Importer in Vietnam

Cosmetics lawyers inVietnam

The cosmetics manufacturers and importers who are responsible for putting cosmetic on the market have the obligations as the following:

-Be responsible for all contents declared in the cosmetic product proclamation report, for the safety, the efficiency, and the quality of the product; and guarantee that the circulated products satisfy all requirements of the ASEAN Cosmetic Treaty and the Appendix of Vietnam law;

-Follow, discover, and confiscate immediately the unqualified cosmetic, as well as implement the confiscation announcement from the state authority office and inform to the state authority office about the confiscation; punctually deal with the consumer’s complaints of the cosmetic’s quality and compensate for consumer’s loss in accordance with the regulation; refund to the buyer the produced cost in the maintenance, transportation, and circulation process;

-Report to the Medicine Management department – the Health Ministry within 07 days since the date receiving the first feedback from this side-effect in case finding side-effects which are serious and could damage the consumer’s life because of the cosmetic product’s quality;

-File the Product Information File (PIF) in at least 03 years since the latest manufacture lot is put on the market and presented to the checking and inspecting functional office when requested;

-Obey the Vietnamese Regulation and Law on the intellectual ownership. When having the conclusion of the state competent offices on the intellectual-ownership law-breaking label and industrial design, the organizations, the individuals must stop manufacturing, trading, and importing in order to conduct of changing the label and the industrial design as provided, and be responsible for refunding and resolving all damages (if any).

Besides, Vietnam law also provides that the organizations which manufacture the cosmetic must deploy to apply and satisfy principles, the “cosmetic good manufacturing practice” standard of the Asian Southeast Association Nations (CGMP-ASEAN).

Last but not least, the organizations, the individuals must conduct requirements of state competent offices about checking and inspecting the cosmetic quality, confiscating the violated cosmetics, and be entitle to complaints about the conclusion and the law-breaking judgment form in accordance with the law regulation on the complaint and the denouncement.

This publication is designed to provide updated information of legal matters, and does not constitute professional advice.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers Foreign Investment Practice or contact our Law firms in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

Read More

How To Conduct Legal Due Diligence for M&A in Vietnam?

Mergers and Acquisitions (M&A) has become popular in Vietnam as the country develops and more investors are eager to invest and gain control of the business enough to engage in, decide important business matters through partial or full ownership of an enterprise. A successful M&A mean the parties achieve their financial and commercial goals (increasing capital, raising management capacity, branding, etc) and ensuring safety and restraint the risk at the lowest level, though legal due diligence undertaken by law firm in Vietnam.

The Importance of Legal Due Diligence of Enterprise in M&A activities

Legal due diligence of enterprises focuses on full and detailed assessment of legal issues relating to the legal entity, capital contribution status, shareholder status, legal rights and obligations. From the investigation information, the parties can anticipate legal risks, assess opportunities to come up with alternatives. In addition, legal assessments help parties evaluate the reliability of their counterparts as well as understand their advantages and constraints for the negotiation process.

What Legal Due Diligence in M&A Activities Entail?

-Evaluate the factors related to the legal status and capacity of the target enterprise: Review the legitimacy of the establishment, operation, possession of enterprise; ensure that the enterprise is not subject to procedures for dissolution or bankruptcy and compliance with the law of the enterprise in the course of operation. The information to be checked includes: dossiers, certificate of enterprise establishment, operation licenses, practice certificates, professional liability insurance, company charter, agreement between the company owner on rights of shareholders, capital contributors, minutes of meetings, member/shareholder register, certificate of capital contribution.

-Evaluate the factors related to the business and financial activities of the target enterprise: Review the system of customers and partners of the enterprise; the documents on economic contracts (with customers, suppliers, etc); dossier of investment, construction, land, project; information on guarantee, mortgage (if any), debt and credit agreement, M&A, financial leasing contract, exclusive contract, franchise, etc, in terms of value, legality, validity, progress to evaluate legal risks in the future. Review the financial statements on the accuracy of the financial status of the business.

-Verify the factors related to labor: Review labor contracts, labor agreements, internal labor regulations to determine the enterprise’s financial obligations to employees, compliance Labor law and reception of labor after the purchase or sale.

-Verify the factors related to intellectual property: Review intellectual property rights of enterprises including: trademarks, trade names, industrial designs, layout designs, business secrets, etc; the property has granted the patent/license. Review matters of infringement of intellectual property rights of other organizations, individuals or legal persons in order to anticipate the risks of being sued or claiming damages.

In addition, in an M&A deal, the acquirer should ensure that participation in capital contribution or acquisition of the target enterprise is permitted, the form of M&A implementation is in accordance with the law and the M&A deal was approved by the competent authority of each party. After that, the factors related to M&A transaction procedures and constraints and restrictions of law (if any) must be evaluated.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers Foreign Investment Practice or contact our Law firms in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

Read More

Note on Setting up a Representative Office in Vietnam

Setting up a representative office is considered one of the simplest forms of investment in Vietnam.

The representative office will help the foreign trader to lease office, hire people, open bank account, and promote the business activities in Vietnam market. The chief representative if being foreigner will then could apply for work permit and temporary residence card to stay in Vietnam. There is no income tax as the representative office therefore the liability to maintain a representative office is less hassle. When the purpose of setting up representative office in Vietnam has been achieved, the closing down of the business shall be not as challenging as closing down a company.

According to Vietnam laws, representative office is a dependent unit, representing the foreign entity’s interests in Vietnam. Representative office is established by foreign entities to help them liaise, implement research activities, provide information and support them in seeking new partners as well as having understanding of the new market.

The foreign entity has to meet certain conditions before setting up representative office in Vietnam. It has rights and duties in accordance with Vietnam laws.

When preparing the application for license of representative office in Vietnam, the foreign entities have to note the following.

Prepare the application forms

The application forms as issued by Ministry of Industry and Trade. The application must be signed by legal representative of the foreign entity;

Notarize, legalize and authenticate documents

The foreign entity has to prepare and provide business registration certificate, audited financial report, charter, and office lease memorandum of understanding, passport of the legal representatives of the Representative Office in Vietnam. The documents issued in foreign countries have to be notarized, legalized and authenticated (apostille procedures) in accordance with Vietnam laws to be used in Vietnam. If the business registration certificate or alternative documents have expiry date for business entity’s operation, the remaining time must be at least one year;

Who should be the chief representative?

The Chief Representative of the Representative Office in Vietnam must be different from the Director of the foreign entity.

How long does it take?

It would take around 20 business days since application until receiving the business operation registration of representative office.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about ANT Lawyers Foreign Investment Practice or contact our Law firms in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

Read More