What are Application Dossiers to Apply for Bank Guarantee?

According to Vietnam Law on Credit Institution, and Circular 07/2015/TT-NHNN on bank guarantee, bank guarantee refers to a type of credit whereby the guarantor undertakes to act on behalf of the obligor to fulfill their financial obligations to the obligee in the event the obligor fails to fulfill or insufficiently fulfill their agreed-upon obligations to the obligee; the obligor must take on their debt obligations and repay the guarantor.

Bank Guarantee in Vietnam

Guarantee commitment is the written document issued by the guarantor or the counter-guarantee issuing party or the guarantee-confirmation issuing party.

According to Vietnam Law on Credit Institution, and Circular 07/2015/TT-NHNN, the application dossiers for bank guarantee are:

a) Written request for guarantee;

b) Materials related to customers;

c) Materials on guaranteed obligations;

d) Materials on security (if any);

dd) Materials related to other parties (if any).

Read More

Should intellectual property be abolished?

I am assuming your intended question was directed at the legal protections over intellectual property rights (i.e. patents, copyrights, trademarks, trade secrets), and not the literal interpretation that we should stop creating and innovating.

The “value to society of intellectual property as a legally protected right” is an opinion with many views.

IP Services in Vietnam 

My view is that it would reduce the incentive for one to innovate and create. As an inventor, I would no longer share my thoughts and ideas with society so that others could grow them.

Individuals would be at a major disadvantage against larger companies who have more funds to test and revise quickly. An individual would need to protect all secrets until ready to build a final product and hit the market all as once. Because as soon as an innovation was released to the market, hoards of knock-offs would follow, quickly reducing the price, and quality.

As a writer, I would charge much more for my work, since it is free to be copied and sold by others, and value initially diminishes as a work becomes more commonly known.

Artist, Singers, Writers, etc. would be severely limited in what they could gain from their efforts and therefor would have incentive to prevent publishing, recording, and distribution to wider audiences. Inventors would spend time obfuscating their works, and refuse to explain new discoveries or improvement in the arts.

Read More

Labour matters in the EU-Vietnam Free Trade Area (EVFTA)

The International Labor Organization (ILO) is an international organization founded in 1919, after World War I and became the first specialized agency of the United Nations in 1946. The main purpose of the ILO is Promoting the rights of the employee in the workplace, promoting employment opportunities, enhancing social protection, and enhancing dialogue with people about work-related issues. Until now, the organization has 186 members worldwide and contributes to addressing labor-related issues around the world.

EVFTA Lawyers inVietnam

Vietnam has joined the ILO since 1992 and has its office located in Hanoi in 2003. The purpose of the ILO Vietnam is to promote workplace rights, promote sustainable working opportunities, social protection, and promote dialogue on issues related to employment.

The ILO Basic Conventions regulate the rights of the labor market in Vietnam to decide and support the labor market management needed by trade liberalization. Recently, the EU-Vietnam Free Trade Area (EVFTA) has been discussed, EU member states and Vietnam are all members of the ILO, therefore it may be argued that EVFTA has advocated compliance with the ILO approved and implemented standards. In addition, EVFTA encourages the expansion and improvement of initiatives to promote the company’s labor standards or corporate social responsibility. In the future, EVFTA and the ILO will work around issues such as modern slavery and child labor, risk management and increased transparency in labor relations.

The above fields are important fields for cooperation, considering the positive aspects of labor management, the impact of poor labor management on trade opportunities, therefore emphasize the role of labor management for the sustainability of the trade.

In Vietnam, there are many policies on the protection of workers’ rights and the protection of child labor, but the settlement of policies related to labor management, workplace communication has becoming improved. Until now, Vietnam has signed several Free Trade Agreements (FTA), some of which have provisions on labor issues, which require Vietnam to have the labor provisions which consist of the free trade. Vietnam’s current labor policies are gradually improving in order to be in line with the integration trend of the world and to preserve the best integration environment for domestic and foreign investors, therefore it brings the high efficiency in the economic development of the country.

Read More

How to Determine Financial Security to Request for Arrest of Ship?

According to Article 132 of Vietnam Law on Maritime, to request for arrest of ships, it is required to provide financial security to ensure that there is a way to hold the requester responsible in case the request is wrongful.

 Maritime lawyers in Vietnam

The person requesting arrest of ships must provide financial security in either or both of the following forms:

i) Submitting asset-backed security documents issued by banks or other credit institutions, or individuals, agencies or organizations;

ii) Depositing a sum or valuable papers according to the Court’s judgement over execution of financial security in an escrow account opened at the bank within an area where the work office of the Court accorded authority to arrest a ship is located no later than 48 hours of receipt of such judgement.

The value of a financial security shall be decided by the Court and shall be proportionate to any loss or damage incurred due to consequences arising from request for wrongful arrest of a ship.

Read More

Cybersecurity law in Vietnam and data privacy issue

Vietnam’s cybersecurity law has been passed on 12/6/2018, will officially come into effect on Jan 1^st, 2019. This new law attracts attention, and contributions from many people. From the state management’s perspective, Cybersecurity Law is to protect national security. From business and users’ perspective, organizations that provide Internet services, social networks service, IT services companies, Fintech services, ecommerce websites and individuals whom use these services…. are directly affected groups.

Cybersecurity law firm in Vietnam

At present, much of the information is stored on e-mail, social networking platforms…According to Article 26 of Vietnam Cybersecurity Law, it is required to “Store in Vietnam for the personal information of people who use services in Vietnam and the important data related to national security; Having headquarters or representative offices set up in Vietnam”. It is understood that only foreign organizations with headquarters or representative offices in Vietnam are permitted to provide internet, social networking, fintech services in Vietnam. Accordingly, to continue the related services in Vietnam, organizations providing services such as the internet, social networks, fintech services need to establish a representative office in Vietnam and for storing data relating to users in Vietnam.

Point a, Clause 2 of Article 26 of Vietnam Cybersecurity Law regulates that organizations provide internet, social network services have to: “establish information authentication mechanism when user registers account; protect confidential information, user accounts; disclose users’ information to network security division under the Ministry of Public Security upon request in writing”.  It is suggested that, in order to protect the user’s information and to avoid abuse of power, the Ministry of Public Security should have specific guidelines for management.

According Article 21 of Vietnam’s Constitution in 2013: “everyone has the right to inviolability of private life, personal and confidential family secrets; have the right to defend the honor and prestige” “No one shall be permitted to open, control, illegally seize any correspondence, telephone, telegram and other forms of private communication.” With the introduction of the Vietnam Cybersecurity Law, the management of information, of service providers, and personal private information pose challenges in terms of data privacy.

Read More

Trading Conditions on Medical Device in Viet Nam

Medical device includes device related to human health, therefore, the business of medical device in the conditional business line in accordance with the law of Vietnam. Medical device is defined as kinds of device, tools, materials for implanting activities, reagents and in vitro calibration solutions, software which are used separately or in association with each other according to the instruction of their owners for human use for the purpose of diagnostic, prevention, supervision, treatment and elimination the illness or to making up for pains.

 For medical device trading purpose in Vietnam, first of all, the enterprise should classify medical device. Medical device circulated in Vietnam will be classified based on the level of potential risks associated with the technical design and manufacture of such medical device.

Pursuant to Decree No.36/2016/ND-CP on medical device management, medical device shall be classified into the following 2 groups which are divided into 4 types as follows:

– Type 1 comprises Type A medical device which is medical device with low level of risks.

– Type 2 comprises Type B, C and D medical device, where

+ Type B medical device is medical device with lower average level of risks;

+ Type C medical device is medical device with upper average level of risks;

+ Type D medical device is medical device with high level of risks.

In case medical device can be classified into two or more levels of risk, the classification by the highest risk level of such medical device shall be applied. The classification of medical device must be conducted by qualified organizations as provided by law. In addition, the law of Vietnam recognizes the results of classification of medical device made by competent regulatory body in other countries such as Korea, Japan, … on the basis of international treaties or international arrangements to which Vietnam is a party or of a country which adopts a medical device classification system similar to that adopted by Vietnam.

After classifying medical device, the enterprise shall declare applicable standards for Type A medical device or issue certificate of free-sale registration for Type B, C, D medical device. This procedure makes sure that medical device which the enterprise has trading requirements, is allowed to be distributed in Vietnam.

Finally, with the exception of medical device of type A, in order to directly sell medical device to consumers, the enterprise needs to ensure the staffing requirements as well as the material facility requirements in accordance with the law, for instance:

Trading premise must have technically qualified staffs to perform the installation and use instructions suitable to the medical device which the establishment buys and sells, including at least one qualified technical staff specialized in technical or medical or pharmaceutical medical or technical colleges of medical device or higher or college or higher degree, whose specialized training is appropriate to the type of medical device that the establishment purchase.

Trading premise needs to prepare the warehouse which has area in accordance with the type and the quantity of the medical device to be stored. The warehouse should be airy, dry, clean, separated from sources of pollution and satisfied with other storing requirement device according to its manual. In addition, trading premise shall have suitable transportation vehicles for delivering of medical devices from trading premise to received place. In case there are no storage facilities or transport means, a contract with an establishment satisfying requirements for storage facilities and transport of medical device shall be concluded.

Read More

How exactly does registered trademark law works?

Intellectual property rights are territorial. American trademarks, patents and copyrights, therefore, do not confer protection on their owners in Europe if the IP owner has not registered their product with your nation’s patent office. The sole exception to this rule involves trademark applications filed under the Madrid Protocol. This system permits American business owners to submit trademark applications that protect their mark in the United States and other designated nations. If the trademark owner in your case did submit such an application and paid for IP protection in your country, you would be prohibited from using the mark.

Trademark Law Firm in Vietnam

Finally, I would strongly encourage you to research whether this comic book trademark is protected intellectual property in Europe. I say this only because the registered trademark symbol ‘(®)’ can denote a trademark in a country other than the United States. The comic book image could, for instance, be a registered trademark in Vietnam. You do not want to inadvertently violate any IP laws.

Read More

Foreign Investment in Education Sector in Vietnam

Foreign cooperation and investment in education are not new to Vietnam. There has been a number of schools and education institutions such as BVIS, Hanoi Academy, International School in Hanoi, Japanese International School, Vietnam-Australia School. Since Aug 1st, 1018, the decree 86/2018/ND-CP on international cooperation and investment in education in Vietnam will be effective, replacing Decree 72/2012/ ND-CP.

According to Decree 86/2018/ND-CP, foreign organizations and individuals are allowed to cooperate in investment in the field of education in accordance with Vietnamese law and treaties to which Vietnam is a member. However, with the education sector in the security, defense, political and religious sectors, the law does not allow foreign organizations to cooperate, or invest.

The law open ways for enterprise to cooperate in education services in Vietnam including pre-school education establishments;primary and secondary education establishments, and educational establishments operating in foreign countries, which are accredited; and post graduate programs that offer master and doctoral training courses and examination centers with foreign language certificates.

Foreign organizations and individuals cooperating and investing in Vietnam in education services must meet the requirements of the Vietnam laws, including facilities in service of educational activities; the educational program and the quality of teachers. Accordingly, the integrated educational program must be a program that has been accredited, ensure meeting the objectives of the educational program of Vietnam; and meet the requirements of the foreign educational program and must be approved by the Vietnam competent authority. Teachers must be qualified and have diplomas and certificates as prescribed by law. Foreigner and foreign organizations which cooperate in the field of education for a joint term of no more than 5 years from the date of approval. Upon the expiry of the extended time limit, each extension time shall not exceed 5 years.

Forms of foreign-invested educational establishments permitted are include short-term training and vocational training; pre-school education establishment; General education establishments (primary schools, secondary schools, primary and secondary schools; higher education institutions. The duration of operation shall not exceed 50 years. For the establishment of foreign educational organizations, foreign organizations and individuals must meet conditions on capital, facilities and equipment, educational program; teachers must meet the requirements of the Vietnam Ministry of Education and Training.

For pre-school and primary and secondary education establishments, which accept Vietnamese pupils, and study the foreign educational programs, the number of Vietnamese pupils studying in the foreign educational program must be lower 50% of the total number of students enrolled in the foreign educational program at the institution. Vietnamese pupils studying in this group must study compulsory subjects according to regulations.

Foreign investors in education service have to apply for investment registration certificate in Vietnam. Depending on the nature of the educational business, other licenses will need to be applied at Department of Education and Training before operation.

Read More

What are Rights and Obligations of the Obligee?

The rights and obligations of the obligee are as following:

Rights of the obligee:

a) Request the guarantor, the guarantee-confirmation issuing party to fulfill guarantee obligations;

b) Request the guarantor, the guarantee-confirmation issuing party to fulfill obligations and liabilities agreed upon in the guarantee commitment;

BankingLawyer in Vietnam

c) File a lawsuit in accordance with laws if the guarantor or the guarantee-confirmation issuing party is in breach of their agreed-upon obligations;

d) Check the authenticity of the guarantee commitment;

dd) Transfer their rights and obligations to other entities under the agreement between involved parties in conformity with legal regulations;

e) Exempt the guarantor, the guarantee-confirmation issuing party from liability to fulfill guarantee obligations;

g) Exercise other rights under the agreement between parties in conformity with legal regulations.

Obligations of the obligee

a) Fulfill agreed-upon guarantee obligations and ensure conformity with terms and conditions set in the guarantee commitment;

b) Notify the guarantor, the guarantee-confirmation issuing party and other related parties of any sign or act of violation committed by the obligor;

c) Fulfill other obligations under the agreement between parties in conformity with legal regulations.

Read More

Is it necessary to register the trademark of my open source project?

Generally, a trademark is necessary for all companies and businesses. However, the registration of atrademark obviously is not a primary objective when a company starts operating. It is advisable to do so as soon as the company/project starts bringing sufficient profit. If you wish to save your right to a brand name it would be a rational decision.

Registered trademark protection in Vietnam

Why trademark?

-You wish to be able to take legal action against anyone who uses your brand without your permission, including counterfeiters.

-You want to put the R symbol next to your brand to show that it’s yours and warn others against using it.

-You want to have the possibility to sell and license your brand.

-You aim to increase your sales. Branded products sell, and they sell for more.

Our company can help you to register your trademark. AntLawyers is designed to simplify international trademark registration for business owners and to provide them with the cost-effective way to protect their trademarks internationally.

Read More

If you steal someone else business idea and start your own company, what is the worst thing that can happen?

Well, to answer your questions, I’m going to say hypothetically that “you” stole something that was legally protected in some way (be it via patent, trademark, copyright, signing an NDA, or the likes).

Can they successfully stop you from operating your business? Yes, they have options that could put “you” out of business. If you’ve violated their legally protected rights to certain items (their trademarked name, their copy-protected material, their patented goods, or business processes from a former employer after you signed an NDA and it is still within the legal timeframe), they can exercise their options (cease and desist letters, lawsuit for an injunction to stop you plus damages) under the law.

IP infringement lawyers in Vietnam

Can they sue you? Yes, they can, but whether or not they will sue you is a different story. Keep in mind two things: they must first elect to exercise their rights and they’re probably going to wait until it is profitable to sue “you.”

What are the consequences? That depends on what, if anything, that they can prove in court that you did to violate their intellectual property rights.

In all honesty, if you or someone you know have found yourself with a legal threat of a lawsuit because of intellectual property, you should consult with a lawyer experienced in the area. The laws related to intellectual property can be complex and it isn’t something that you should do on your own (and you could get advice on whether what happened was actually a legal issue).

Antlawyers.vn is a legal marketplace that could help. We make it easy for inventors and entrepreneurs to hire and work with business-minded lawyers at low flat rates. We offer free initial consultations as well as quick and easy price quotes. Hope this helps!

Read More

What are Responsibility for Wrongful Request of Arrest of Ship?

According to Article 131 of Vietnam Maritime Law, the wrongful request of arrest of ship in Vietnam shall be subject to financial obligations. In particular:

Maritimelaw firm in Vietnam

The applicant for arrest of a ship must be held legally liable for his request. If the request for arrest of a ship is wrongful, which may lead to any loss, such applicant shall be responsible for compensating for any loss or damage possibly incurred.

Any loss or damage that may be incurred from consequence of such request for wrongful arrest shall be dealt with as agreed upon between parties. Where there is any disagreement or dispute that may arise, the Court or Arbitration Tribunal shall be requested to settle this disagreement and dispute in accordance with laws.

If the Court that grants a judgement on arrest of a ship which is not based on the reasons for a request for arrest or does not serve on the ship as the right subject matter of such request, which may cause any loss or damage, it shall be liable for any compensation in accordance with laws and regulations.

Read More

What are Conditions to Meet for Trading civil cryptographic products and services?

According to Article 30 and 31, Law on Cyber Information Security,

Civil cryptographic products and services are:

1. Civil cryptographic products include cryptographic documents and technical and professional equipment used to protect information not classified as state secret.

Cyber security in Vietnam

2. Civil cryptographic services include services of protection of information using civil cryptographic products; inspection and assessment of civil cryptographic products; and counseling on cyber information confidentiality and security using civil cryptographic products.

Trading in civil cryptographic products and services requires:

1. An enterprise that wishes to trade in civil cryptographic products and services on the list of civil cryptographic products and services shall obtain a license for doing so.

2. An enterprise shall be granted a license for trading in civil cryptographic products and services when fully meeting the following conditions:

a/ Having managerial, administration and technical staff members who meet professional requirements on information confidentiality and security;

b/ Having equipment and physical foundations suitable to the scale of provision of civil cryptographic products and services;

c/ Having a technical plan conformable with standards and technical regulations;

d/ Having a cyber information confidentiality and security plan in the course of management and provision of civil cryptographic products and services;

e/ Having an appropriate business plan.

3. Civil cryptographic products shall be inspected and certified as conformable with regulations before being marketed.

4. To obtain a license for trading in civil cryptographic products and services, an enterprise shall pay a fee in accordance with the law on charges and fees.

5. The Government shall promulgate a list of civil cryptographic products and services and detail this Article.

Our cyber security lawyers always follow development of laws in Vietnam to provide the client with update. Please contact ANT Lawyers for service inquiries.

Read More

What Must Be Included in the Bank Guarantee Letter?

The guarantee commitment must include the following contents:

a) Applicable regulations;

b) Serial numbers and guarantee commitment form;

c) Information about parties in the guarantee relationship;

Banking Lawyer in Vietnam

d) Date of guarantee issuance, guarantee validity commencement and/or cases in which the guarantee validity begins;

dd) Date of validity termination and/or cases in which the guarantee validity is terminated;

e) Guarantee sum and currency;

g) Guarantee obligations;

h) Conditions for fulfillment of guarantee obligations;

i) Application for fulfillment of guarantee obligations;

k) How to check the authenticity of the guarantee commitment.

In Vietnam, there are banks whom only issue one original bank guarantee letter however the number of originals are not regulated in Vietnam laws.  It is also important to ensure the person whom sign the bank guarantee letter is legal representative or the authorized person whom is legally authorized to sign the bank guarantee letter.

Read More

What is Bank Guarantee Letter?

According to Vietnam Law on Credit Institution, and Circular 07/2015/TT-NHNN on bank guarantee, bank guarantee refers to a type of credit whereby the guarantor undertakes to act on behalf of the obligor to fulfill their financial obligations to the obligee in the event the obligor fails to fulfill or insufficiently fulfill their agreed-upon obligations to the obligee; the obligor must take on their debt obligations and repay the guarantor.

Bank Guarantee in Vietnam

Guarantee commitment is the written document issued by the guarantor or the counter-guarantee issuing party or the guarantee-confirmation issuing party.

Letter of guarantee refers to the written commitment between the guarantor and the obligee to the guarantor’s fulfilling the financial obligation on behalf of the obligor in the event the obligor fails to fulfill or insufficiently fulfill agreed-upon obligations to the obligee.

To avoid confusion of bank, it is common to issue non conditional and irrevocable bank guarantee.  Having said that, the bank will release payment upon the first request from the obligee without the obligations to verify any contract non-performance.

Read More

How to Apply For Trading License in Civil Cryptographic Products and Services?

According to Article 32, Law on Cyber Information Security, the application of licenses for trading in civil cryptographic products and services need to follow the following:

Cyber information law firm in Vietnam

1. An enterprise applying for a license for trading in civil cryptographic products and services shall submit a dossier of application for a license at the Government Cipher Committee.

2. A dossier of application for a license for trading in civil cryptographic products and services shall be made in two sets, each comprising:

a/ An application for a license for trading in civil cryptographic products and services;

b/ A copy of the enterprise registration certificate, investment registration certificate or another paper of equivalent validity;

c/ Copies of information confidentiality and security diplomas or certificates of managerial, administration and technical staff members;

d/ A technical plan, consisting of papers on technical characteristics and specifications of products; standards or technical regulations of products; standards and quality of services; technical measures and solutions; and product warranty and maintenance plan;
dd/ A cyberinformation confidentiality and security plan in the course of management and provision of civil cryptographic products and services;

e/ A business plan, indicating the scope of provision and recipients of products and services, scale and quantity of products and services, customer service networks, and technical assurance.

3. Within 30 days after receiving a complete dossier, the Government Cipher Committee shall appraise it and grant a license for trading in civil cryptographic products and services; if refusing to grant a license, it shall issue a written notice clearly stating the reason.

4. A license for trading in civil cryptographic products and services shall be valid for 10 years.

Our cyber security lawyers always follow development of laws in Vietnam to provide the client with update. Please contact ANT Lawyers for service inquiries.

Read More

Which Court Could Grant a Decision to Arrest a Ship in Vietnam?

According to Article 130 of Vietnam Maritime Law, the following courts could issue decision to arrest a ship in Vietnam.

The People’s Court at the level of a province where the seaport at which a ship subject to a request for arrest of a ship is having marine operations is located shall be vested with authority to grant a decision to arrest that ship.

Maritime Law firm in Vietnam

Where a seaport has different port terminals located within different centrally-affiliated cities and provinces, the People’s Court at the level of a province where the seaport at which a ship subject to an arrest request is having marine operations is located shall be vested with authority to grant a decision to arrest that ship.

The People’s Court that is dealing with a civil case, or the People’s Court at the level of a province where the Arbitration Council is resolving any dispute, shall be accorded authority to impose an arrest of a ship as an interim injunction.

The Chief Justice of the People’s Supreme Court shall consider and decide whether the lower Court has been accorded authority to grant a decision on arrest of a ship in the event that there is any dispute over jurisdiction between the People’s Courts at the provincial level.

Read More