Legal Regulations in Purchasing Real Estate in for Foreigners in Vietnam | ANT Lawyers

Vietnam has become a better place for foreigners to visiting and staying. Many chose Vietnam as home and they come to Ho Chi Minh City, Ha Noi, Da Nang, Phu Quoc, Nha Trang… to buy real estates for living. Many foreigners consider seeking understanding and with the advisory of their real estate lawyers in Vietnam to purchase the property under their name for best interest protection. There are a number of foreigners seek to cooperate with local Vietnamese under investment agreement to invest in properties. It has always been suggested the buyer or investor to receive legal advice from real estate lawyers and law firms in Vietnam before committing the investment to a certain extent.

According to the Law on housing 2005, foreign organizations and individuals investing in construction of houses for sale and lease in Vietnam have the right to own the houses in Vietnam. However, according to the provisions of the Law on housing 2014, the house owners expand and include foreigners being investors building the houses under investor projects, foreign organizations operating in Vietnam and foreign individuals being allowed to enter Vietnam under the provisions of the Law on Entry, Exit, Transit and Residence of Foreigners in Vietnam; and are not entitled to diplomatic privileges and immunities.

Under the provisions of the Law on housing 2014, foreign organizations and individuals are allowed to own apartments, individual houses (villas and townhouses) in commercial housing projects. The total number of foreign individuals/organizations owned does not exceed 30% of an apartment building or does not exceed 10% or 250 houses of a housing project. Foreign individuals may own houses for up to 50 years and are allowed to extend for no more than 50 years. Foreign organizations own the houses according to the time limit on the Investment Registration Certificate and the extension period. During the time of owning the houses, foreign individuals are allowed to sublease, but foreign organizations are not allowed to sublease the houses.

For foreign individuals/organizations, when buying the houses in Vietnam, it is necessary to have a well drafted sales contract for purchase and sale of the houses because all rights and obligations related to the purchase, sales and ownership of houses are regulated in the contract. Therefore, the buyer should consider the contract carefully, usually with the help of real estate lawyers whom understand Vietnam laws before signing, in order to protect their legitimate rights and interests.

The foreigner when buying and selling the houses, especially off-plan house, need to also pay attention to the regulations on payment schedule in the contract. According to Article 57 of the Law on housing 2015, the payment in the purchase, sales, lease sales of the off-plan real estate in Vietnam is carried out in installments, and the first time must not exceed 30% of the contract value, the next times must be in accordance with the construction schedule, however, not exceeding 50% of the contract value when not handed over when the buyer is an enterprise with foreign investment, not exceeding 70% the value of contract, if the buyer is the foreigner individual the payment is not exceed 50% the value of the contract before handing over the house to the buyer. Until the buyer is issued with a certificate of land use right, ownership of houses and other assets attached to the land, the buyer shall pay no more than 95% the value of contract.

Foreigners in Vietnam need to be assisted to be familiar with the laws relating to the purchase and sale of real estate in order to protect their legitimate rights and interests when participating in transactions in Vietnam. It is important that the foreigners consider using the services of law firm in Vietnam specializing in real estate to advise and help manage the transaction.

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Construction Operation License Instead of Contractor’s Permits for Foreign Contractor in Vietnam | ANT Lawyers

The foreign contractors are only permitted to carry out construction activities in Vietnam so long as being granted construction operation license by Ministry of Construction as per the Construction Law.

EPC Contractors have increasingly been interested to learn the requirements of licenses and permits to operate in Vietnam. It is advised that the construction law firm in Vietnam with lawyers specializing in construction area to assist the foreign contractors to understand the legal frameworks, and requirements of foreign contractors before and after taking on construction projects in Vietnam after bidding result.

The regulations and procedures are promulgated in Decree No. 59/2015/NĐ-CP on management of construction investment projects and Circular No.14/2016/TT-BXD guiding on licensing construction activities and management of foreign construction contractors in Vietnam.

Investment in construction activities has been growingly rapidly. In order to meet the tender conditions and take part in construction activities in Vietnam, foreign contractors shall follow the regulations in Vietnam and obtain proper license during the preparation and the execution of the construction of the project.

Prior to construction operation license, foreign constructors have experienced another form of permit named contractor’s permits for foreign contractors in Vietnam. These are two concepts however the process of registration and document requirements are not so different.

There has been an effort to harmonize and reduce differences and conflicts arisen in many fields of laws regulating the mentioned subject and the new provisions of the Law on Bidding, Construction Law and the Investment Law to be issued in 2014 which establish a stable legal framework for the implementation of foreign contractor’s bidding and construction activities in Vietnam. This changes does not differentiate which position the foreign contractors are appointed from the lead contractor, the main contractor, contractor to subcontractor consortium. Unlike domestic contractors, foreign contractors must be granted construction operation license for each awarded contract. The amendment from the contractor’s permits for foreign contractor contribute to the unity of the same concept in different legal instruments regulating the license procedure of foreign contractors operating within the territory of Vietnam, and limit the unnecessary overlaps, difficulties to law interpretation and application of legal entities.

We shouldn’t forget to mention that the amendment of the foreign contractor’s construction operation license is to increase the relevance between the name and nature of the licensed activities of foreign contractors in construction operation. One of the initial conditions to a foreign contractor to be licensed is when the contractor has won a bid or been selected to be sub-contractor of an investment project. Therefore, the terms construction operation license shall demonstrate the role of the contractor in the construction projects they have been participated in.

The new construction operation license for foreign contractor is expected to be easier to relate to when foreign contractor take part in construction project in Vietnam. This would attract more foreign contractors to undertake construction projects in Vietnam to bring in the technology equipment, as well as the management skills to Vietnam.

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ANT Lawyers offers clients legal services from Da Nang office.

The office is represented by lawyers whom are local of Hoi An covering Da Nang, Hoi An, Hue and other central provinces.

Attorneys in Da Nang focus on important business and legal issues related to real estate, foreign investment, setting up company and other business structures, M&A, contract and other corporate legal works.

Together with law offices in Hanoi and Ho Chi Minh City, the law office in Da Nang with coverage of Hoi An, Hue and other central provinces strengthens the nationwide coverage of ANT Lawyers, serving clients better in legal services in Vietnam.

Please contact us to book your time in advanced to let us provide our best service.

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Commercial | ANT Lawyers

Our commercial practice at ANT Lawyers helps clients with the following:

Incorporation service: advising on business structure, drafting documents, negotiation with local companies and authorities and obtaining licenses and approvals.

Post-licensing procedures: advising on the obtaining of various registration, approvals and permits for foreign invested companies in Vietnam.

Commercial contracts: reviewing, drafting, negotiating and amending many types of commercial contracts including lease agreements, sales and distribution agreements, agency agreements and service contracts.

Management: advising on the operation of the board of management of a joint venture company or a wholly foreign owned capital, the appointment of key management personnel.

Due diligence: reviewing documents and issuing due diligence reports on the legal status and operation of both domestic companies and foreign invested companies in Vietnam.

Please contact us for inquiries through email ant@antlawyers.vn or call our partner directly at + 84 912 817 823.

Let ANT Lawyers help your business in Vietnam.

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Construction Operation License Instead of Contractor’s Permits for Foreign Contractor in Vietnam | ANT Lawyers

The foreign contractors are only permitted to carry out construction activities in Vietnam so long as being granted construction operation license by Ministry of Construction as per the Construction Law.

EPC Contractors have increasingly been interested to learn the requirements of licenses and permits to operate in Vietnam. It is advised that the construction law firm in Vietnam with lawyers specializing in construction area to assist the foreign contractors to understand the legal frameworks, and requirements of foreign contractors before and after taking on construction projects in Vietnam after bidding result.

The regulations and procedures are promulgated in Decree No. 59/2015/NĐ-CP on management of construction investment projects and Circular No.14/2016/TT-BXD guiding on licensing construction activities and management of foreign construction contractors in Vietnam.

Investment in construction activities has been growingly rapidly. In order to meet the tender conditions and take part in construction activities in Vietnam, foreign contractors shall follow the regulations in Vietnam and obtain proper license during the preparation and the execution of the construction of the project.

Prior to construction operation license, foreign constructors have experienced another form of permit named contractor’s permits for foreign contractors in Vietnam. These are two concepts however the process of registration and document requirements are not so different.

There has been an effort to harmonize and reduce differences and conflicts arisen in many fields of laws regulating the mentioned subject and the new provisions of the Law on Bidding, Construction Law and the Investment Law to be issued in 2014 which establish a stable legal framework for the implementation of foreign contractor’s bidding and construction activities in Vietnam. This changes does not differentiate which position the foreign contractors are appointed from the lead contractor, the main contractor, contractor to subcontractor consortium. Unlike domestic contractors, foreign contractors must be granted construction operation license for each awarded contract. The amendment from the contractor’s permits for foreign contractor contribute to the unity of the same concept in different legal instruments regulating the license procedure of foreign contractors operating within the territory of Vietnam, and limit the unnecessary overlaps, difficulties to law interpretation and application of legal entities.

We shouldn’t forget to mention that the amendment of the foreign contractor’s construction operation license is to increase the relevance between the name and nature of the licensed activities of foreign contractors in construction operation. One of the initial conditions to a foreign contractor to be licensed is when the contractor has won a bid or been selected to be sub-contractor of an investment project. Therefore, the terms construction operation license shall demonstrate the role of the contractor in the construction projects they have been participated in.

The new construction operation license for foreign contractor is expected to be easier to relate to when foreign contractor take part in construction project in Vietnam. This would attract more foreign contractors to undertake construction projects in Vietnam to bring in the technology equipment, as well as the management skills to Vietnam.

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Contract Dispute in Vietnam | ANT Lawyers

Disputes occur during contract performance are beyond the control of the entity entering contractual relations. In developed countries, lawyers always invited to advise customers to identify potential disputes, and provide solutions, support and provide legal advice and to accompany the enterprises solve disputes in accordance with the provisions of the law, which help businesses to focus on its business activities. The contract should be carefully reviewed by lawyers. Foreign companies when entering Vietnam mostly follow suit to engage dispute or litigation lawyers in Vietnam at early stage of the transactions.

Contract Dispute

Contractual disputes in Vietnam shall be construed as conflicts, disagreements, conflicts between the parties regarding the implementation or non-implementation of rights and obligations in the contract. Disputes could arise in failure to collect the payment from debtor in sales agreement, construction contract disputes between investor and contractor, labour dispute between employer and employee, insurance disputes between ship owner and insurance company.

Contract disputes must satisfy the following factors:

First, there is a contract between the parties. The contract would be in different for ms therefore, there is a need to clearly define if the contractual relationship has been formed or not.

Second, there is a breach of obligations or duties that are in violation of a party in the contractual relationship.

Third, there is disagreement between the parties about the handling of infringement or the consequences of such violations.

It should be noted, the contract disputes arise from the breach. However, not all breaches of contract also lead to disputes.

How to settle the contract disputes in Vietnam?

Contractual disputes can be resolved by the following methods:

Negotiation is the process or behavior in which the two sides conduct exchanges, agreement on common interests and characteristics of disagreement and come to a unified agreement. The negotiation is without the presence of third parties. However, if the lawyers in Vietnam would be involved during the negotiation process, at the role of representing or advising, counseling, then the negotiations tend to be more effective and parties would reach agreement.

Mediation is one of the options for disputing parties to end the conflict. Mediation is different from negotiating with the intervention of a third party. Mediator will help parties to achieve agreement and resolve conflict.

Court or arbitration: The settlement of the dispute in court would take time. The court’s ruling can be appealed. It should be noted that, per Vietnam laws, only Vietnam litigation or dispute law firms could represent the client at court. Commercial arbitration is available only in commercial-business sector. The advantage of this method is fast and efficient. However, compare with disputing at court, this method of handling dispute would take higher costs.

Disputes and dispute resolution matters are natural and inevitable in any countries including Vietnam. It is important that parties involved need to identify, anticipate disputes can occur. Contract or agreement should be reviewed by lawyers. When there is a dispute, the dispute lawyers will be able to help parties to with advice to reasonable solution to address the disputes effectively.

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Draft and Review Contracts – A Lawyer’s View | ANT Lawyers

In Vietnam, certain type of contract has to follow forms requested by laws as such client is recommended to seek help from professional contract lawyers in Vietnam to help draft or review.

Contract is an agreement enforced by law. In Vietnam, contract is a civil transaction which parties enter into voluntarily, each of whom intends to create, change, or terminate one or more rights or obligations between them according to Vietnam Civil Code. Contract plays an important roles in business transaction. Written contract provide individuals and businesses a legal document reflecting agreement, expectation and mechanism to resolve potential disagreement or disputes.

The lawyers in Vietnam drafting or reviewing contracts under Vietnam laws will need to initially review the legal resources in relevant to the transactions, research related documents and the parties involved to provide legal opinions, make suggestions and propose an optimal solution to the client for negotiation and contract finalization.

Basic terms and conditions of the contracts being rights and obligations of parties to the contracts, and other terms in regard to duration, quality, payment, dispute handling procedures, applicable law and/or jurisdiction, confidentiality, force majeure, intellectual property clauses…among others have to be carefully taken into considerations.

Further, a contract should ensure the following points to be covered:

Use right legal terms or terminology;

Foresee the future scenarios;

Describe the specific matters;

Clearly mention obligations;

Obtain a balance between parties involved.

There are specific contracts in Vietnam for various transactions being:

Joint venture contract;

Share purchase contract;

Sales contract;

Business cooperation contract;

Licensing contract;

Investment contract;

Labour contract;

Lease contract;

Distribution contract;

Construction contract;

Prenuptial agreement.

Each business transaction is different as such a contract is not a compilation of standard terms and conditions. Professional contract lawyers in Vietnam would consider the purpose of the contract, transaction type, significance of the deal, industry, Vietnam legal requirements and expectation of the client to prepare a legally enforceable contract for the client, to avoid misunderstanding and protect the client against legal disputes.

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Visa and Immigration Matters in Vietnam | ANT Lawyers

 

Foreigners entering Vietnam  for  different  purposes  will  need proper  visas  issued,  failing  which  would lead  to  the  revocation,  invalidation  of  entry/exit/residence  permits issued  by  Vietnamese  competent authorities.  The length of stay  in  Vietnam for foreigners  depend  on the  visa type and the time  duration specified  on  the  visa  itself.    For  some  visas,  especially  work  related  visas,  the  foreigners  need  to  be sponsored by Vietnam enterprises  for working purpose.  The proper works  visa must be obtained before work permit in Vietnam would be issued and the foreigners could apply for temporary residence card to stay in Vietnam for a longer period.

Below lists down all visa symbol for references.

1.     NG1 –  Issued to  members  of  delegations  invited  by  the  Secretary  General  of  Vietnam’s  Communist Party of, the President of Vietnam, the President of the National Assembly, the Prime Minister.

2.     NG2 –  issued  to  members  of  delegations  invited  by  standing  members  of  the  Secretariat  of  the Vietnam’s Communist Party, Deputy President of Vietnam, Deputy President of the National Assembly, Deputy  Prime  Minister,  President  of  Vietnamese  Fatherland  Front,  Executive  Judge  of  The  Supreme Court, Chief Procurator of the Supreme Procuracy, State Auditor General; members of delegations at the same  levels  of  Ministers,  Secretary  Generals  of  Provincial Communist  Authorities,  President  of  the People’s Committees of provinces.

3.     NG3 –   Issued   to   members   of   diplomatic   missions,  consular   offices,   representative   offices   of international organizations affiliated to the UN, representative offices of intergovernmental organizations and their spouses, children under 18 years of age, and housemaids during their term of office.

4.     NG4- Issued  to  people  who  come  to  work  with  diplomatic missions,  consular  offices,  representative offices  of  international  organizations  affiliated  to  the  UN,  representative  offices  of  intergovernmental organizations,  visitors  of  members  of  diplomatic  missions,  consular  offices,  representative  offices  of international   organizations   affiliated   to   the   UN,   and   representative   offices   of   intergovernmental organizations.

5.     LV1 –  Issued  to  people  who  come  to  work  with  units  affiliated  to  Vietnam’s  Communist  Party;  the National  Assembly,  the  government,  Central  Committee  of  Vietnamese  Fatherland  Front,  the  People’s Supreme  Court,  the  People’s  Supreme  Procuracy,  State  Audit  Agency,  Ministries,  ministerial  agencies, Governmental agencies, the People’s Councils, the People’s Committees of provinces.

6.     LV2 –  Issued  to  people  who  come  to  work  with  socio-political  organizations,  social  organizations, Vietnam Chamber of Commerce and Industry.

7.     ĐT – Issued to foreign investors in Vietnam and foreign lawyers practicing in Vietnam.

8.     DN – Issued to people who come to work with companies in Vietnam.

9.     NN1 –  Issued  to  Managers  of  representative  offices  or  projects  of  international  organizations  and foreign non-governmental organizations in Vietnam.

10. NN2 – Issued to heads of representative offices, branches of foreign traders, representative offices of other foreign economic, cultural, professional organizations in Vietnam.

11. NN3 –   Issued   to   people   who   come   to   work   with   foreign   non-governmental   organizations, representative offices, branches of  foreign  traders,  representative  offices  of  other  foreign  economic, cultural, professional organizations in Vietnam.

12. DH – Issued to people who come to study or serve internship.

13. HN – Issued to people who come to attend conventions or conferences.

14. PV1 – Issued to journalists who have permanent residences in Vietnam.

15. PV2 – Issued to journalists who come to work for a short period of time in Vietnam.

16. LĐ – Issued to people who come to work.

17. DL – Issued to tourists.

18. TT –  Issued to foreigners that are  parents,  spouse,  children under  18  years  of  age  of  the  foreigners issued  with  LV1,  LV2, ĐT,  NN1,  NN2,  UNIVERSITY,  PV1,  LĐ  visas,  or  foreigners  that  are  parents, spouse, children of Vietnamese citizens.

19. VR – Issued to people who come to visit their relatives or for have other purposes.

20. SQ – Issued to people at an overseas visa-issuing authority of Vietnam

It is  important that the immigration lawyers  in Vietnam to be retained for advice in regard to visa, work permit, temporary residence card or other immigration matters.

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Change of Headquarter of Da Nang Immigration Department | ANT Lawyers

As of August 2018, according to the project for rearranging the administrative function of the Government and the Ministry of Public Security, Immigration Department of Da Nang has been merged into Immigration Department of Hanoi. Therefore, the procedures related to entry, exit of Vietnamese citizens and foreigners such as issuing visa, exempting visa, temporary residence card, permanent residence in Da Nang shall be implemented in Immigration Department of Hanoi.

Relating to the dossier and procedures carried out at the Immigration Department of Da Nang such as issuing passport, temporary residence card, permanent residence, the application shall be submitted to Immigration Department of Da Nang. Thereafter, this agency shall transfer such dossier to Immigration Department of Hanoi for approval. Finally, the results shall be returned to Da Nang.

For most of immigration procedures which used to be implemented in Immigration Department of Da Nang, such as issuing visa, the applicant shall submit dossier directly to Immigration Department of Hanoi. The change could possibly add up processing time, and inconvenience if there is requirement for re-submission, amendment and supplement.

ANT Lawyers law firm offer offices in both Hanoi and Danang, therefore could facilitate the process for individuals and businesses to register entry, residence permit in Da Nang for the smooth experience, to assist foreigners entering Vietnam doing business, setting up company and making investment.

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Procedures to Apply for Temporary Residence Card in Vietnam | ANT Lawyers

For foreigners wishing to reside in Vietnam, they must belong to the subjects to be granted temporary residence card. For most of the case, the temporary residence card holder are investors whom invest to establish company in Vietnam, or employee being employed and sponsored by an organization in Vietnam.

The following shall details the procedures to be implemented for applying for temporary residence card in Vietnam.

I. Subjects to be Granted Temporary Residence Card

Issued to members of diplomatic missions, consular offices, representative offices of international organizations affiliated to the UN, representative offices of intergovernmental organizations and their spouses, children under 18 years of age, and housemaids during their term of office. (NG3)

Issued to people who come to work with units affiliated to Vietnam’s Communist Party; the National Assembly, the government, Central Committee of Vietnamese Fatherland Front, the People’s Supreme Court, the People’s Supreme Procuracy, State Audit Agency, Ministries, ministerial agencies, Governmental agencies, the People’s Councils, the People’s Committees of provinces. (LV1)

Issued to people who come to work with socio-political organizations, social organizations, Vietnam Chamber of Commerce and Industry. (LV2)

Issued to foreign investors in Vietnam and foreign lawyers practicing in Vietnam. (DT)

Issued to Managers of representative offices or projects of international organizations and foreign non-governmental organizations in Vietnam. (NN1)

Issued to heads of representative offices, branches of foreign traders, representative offices of other foreign economic, cultural, professional organizations in Vietnam. (NN2)

Issued to people who come to study or serve internship. (DH)

Issued to journalists who have permanent residences in Vietnam. (PV1)

Issued to people who come to work. (LD)

Issued to foreigners that are parents, spouse, and children under 18 years of age of the foreigners issued with LV1, LV2, DT, NN1, NN2, UNIVERSITY, PV1, LD visas, or foreigners that are parents, spouse, and children of Vietnamese citizens. (TT)

II. Conditions for Implementation

Time to stay in Vietnam more than 01 year;

Valid passport more than 01 year;

In case of having a work permit, the work permit of the foreigner must be valid for 01 year from the date of the application for a temporary residence card. For investors, there must be written documents proving that foreigners contribute capital to, or invest in, enterprises in Vietnam (business registration certificates, investment licenses …).

III. Required Documents to Apply Temporary Residence Card

A written request of agencies, organizations and individuals offering, guarantee and propose for temporary residence card (form NA7)

01 declaration of information of foreigners who apply for temporary residence, with photos and sealed by the agency or organization: A written request for temporary residence card (Form NA8); a declaration about Foreigners applying for temporary resident card (Form N7B)

Two 3 x4 cm size photographs;

Passport, valid visa, immigration cards (bring original for comparison);

Notice of use of the seal of the enterprise

01 copies or photo (bring the original for comparison) proof of purpose to stay in Vietnam.

Depending on situations, the following documents would be required: investment licenses, permits the establishment of enterprises, work permit in Vietnam, certificate of board members and permits the establishment of representative offices, marriage/birth registration.

IV. Implementing Agencies to Apply Temporary Residence Card:

Immigration management Department, Police provinces and cities directly under the Central Government.

V. Duration to Obtain Temporary Residence Card in Vietnam: 05 to 07 days;

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Three Difficulties in Applying Temporary Residence Card in Da Nang | ANT Lawyers

In recent years, more and more foreigners are coming to live, work, study or to reside in Da Nang, therefore, many foreigners apply for Temporary residence card (TRC) for more convenience in Vietnam.

According to the regulation of Section 13, Article 3 of Law on Entry, Exit, Transit, and Residence of Foreigners in Vietnam, Temporary Residence Card (TRC)is a legal document issued by an immigration authority or a competent authority of the Ministry of Foreign Affairs to a foreigner who is permitted to reside in Vietnam for a certain period of time. This card has the same validity as a visa. Therefore, if the foreigners have TRC, they will reside and entry/exit Vietnam without applying for visa.

However, the process and procedures to apply for TRC would have many different practical applications in each province. Particularly in Da Nang, the issuance of temporary cards for foreigners is more challenging.

The first, for the issuance of a TRC, the foreigner must apply for suitable visa, the issuance of TRC is executed at the Immigration Department of the Da Nang City Public Security. The application for a visa in Da Nang is more complicated than in other provinces. It is necessary to have specific information relating to the operation and management of the enterprise which guarantee foreigner to enter Vietnam(if any). For the submission of dossiers to apply for the visa, the foreigner shave to submit by themselves or by the staff of their company. This makes it necessary for the foreigner or the sponsor have to spend the time to complete the procedure.

Secondly, after having a valid visa, the foreigners should apply the TRC at the Immigration Department of the Da Nang City Public Security. The dossiers for applying the TRC is regulated in the Article 37 of the Law on enter, exit, transit, and residence of foreigners in Vietnam. However, when applying for temporary residence cards in Da Nang, the Immigration Department could request more other relevant documents to the business, which is some time not found in the law, which poses challenges to applicant.

Thirdly, the granting of TRC to foreign investors, workers in Da Nang requires the confirmation of work permit exemption, work permits. The duration of the TRC issued will be valid for a period of two (2) years. As a result, for foreign investors, only have TRC with the validity term of 02 years are granted, instead of maximum 5 years, as provided for in Clause 2, Article 38 of the Immigration law. In order to be granted a TRC for a period of more than two years, the Immigration Department shall consider the business situation of the company, the tax payment status of the investor, etc. Therefore, if investors want to be granted TRC for more than 02 years, they need to work in Vietnam for a longer time and the business must be profitable.

With the above difficulties, many foreigners need to necessary attention, prepare all the documents as well as know about the term of TRC, in order to be able to prepare the best dossier. In case of difficulties, ANT Lawyers with offices in Hanoi, Ho Chi Minh City and Da Nang and experience in work permit, immigration, and temporary residence card could provide legal services for the client’s convenience.

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Trading Conditions on Medical Device in Viet Nam | ANT Lawyers

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.

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Foreign Investment in Education Sector in Vietnam | ANT Lawyers

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.

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Cybersecurity law in Vietnam and data privacy issue | ANT Lawyers

Vietnam’s cybersecurity law has been passed on 12/6/2018, will officially come into effect on Jan 1st, 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.

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 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.

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Bloomberg: M&A in 2016 in Vietnam Will Hit Record | ANT Lawyers

According to Bloomberg, the mergers and acquisitions activity (M&A) in Vietnam will hit record since the foreign investors are very interested in the consumer sector – which is developing very fast.

The Institute of Mergers, Acquisitions and Alliances in Vietnam announced that the M&A activities related to Vietnam companies increased by 40% in 2015, reaching 4.3 billion USD and surpass the record of 4.2 billion USD in 2012.

Meanwhile, according to Baker & McKenzie and Duane Morris LLP, M&A activities in Vietnam will grow strongly in 2016 after the implementation of free trade agreements (FTA) and the Investment Law is passed by the Government.

Foreign investors feel very exciting with the forecasted economic growth of 6.7% in 2016, the fastest growth in 9 years and the consumer market with 60% of customers are under 35 years old.

According to Bloomberg, Vietnam is having a lot of changes in the Law on Investment therefore the acquisition of companies in the country is took place faster and more transparent. Meanwhile, consumer spending also rose sharply. According to the forecast of Euromonitor, consumer spending will increase by 47% from now till 2019. Particularly the beer market will grow by 33% in the next period, reaching 4.8 billion liters, while the consumption of this product will decrease in Thailand. Moreover, the middle class in Vietnam will continue to expand their investment portfolio in the domestic market.

With these advantages, M&A activities in Vietnam in 2016 will be quite exciting. ANA Holdings Inc – owner of the Japan largest airlines has agreed to buy 8.8% stake in Vietnam Airlines with price of about 109 million USD. In March 2015, France’s Aeroports De Paris has expressed its intention to acquire stake in Airports Corporation of Vietnam.

In October 2015, the information about the divestment of the State at Vinamilk with 45% stake worth nearly 3 billion USD has led many foreign investors revealed their ambitions to buy the company with the largest listing in Vietnam market.

In late 2015, Boon Rawd Brewery Co., – the oldest brewing in Thailand has agreed to invest 1.1 billion VND in Masan Group – the biggest deal in the last 3 years in Vietnam.

Obviously, the investors who are interested in M&A in Vietnam are having a clearer path. With this trend, M&A will be more exciting in 2016.

If the Government continues to improve the investment environment then the foreign investment flows will continue to increase, especially in 2016 and 2017. Along with the advantages, Vietnam still has much to do to attract the flow of investment capital such as customs procedures, taxation and access to loans. The deeper and wider integration into the economy will offering Vietnam with more opportunities in M&A activity.

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

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.

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Debt Recovery Service in Vietnam

Debt recovery is always a big problem for businesses and individuals. In order to promote the production process, the process of debt recovery is always one of the concerns with the business leaders.

One of the the appropriate method is the intervention of law. ANT Lawyers Co., Ltd is a leading legal consultancy in Vietnam, with a team of experienced lawyers and legal experts that have participated and solved many debt recovery cases for businesses and individuals.

We will:

– Study the case to find the legal basis and debt data that should be handled;

– Assess the payment capability of the debtor to creditor;

– Represent the client to exposure debtor to negotiate, persuade and require debt repayment;

– Advice and instruct customer the most beneficial solutions in accordance with the law;

– Implement civil proceedings, economic proceedings or criminal proceedings against law enforcement agencies, depending on the type of entity and the nature of the transactions arising overdue debts;

In case of debt recovery through litigation, we will help customer:

– Draft petition and other papers relating to the recovery of debt;

– Represent client (individuals and organizations) to submit the petition to the Court and the competent authorities to recover the debt as stipulated by law;

– Appoint attorney to participate in protecting the legitimate rights and interests of clients (individuals and organizations) at the Court at all levels;

– Represent client (individuals and organizations) to participate in judgment enforcement

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How Lawyers Could Assist to Collect Debt | ANT Lawyers

The collection of bad debt and late payment after sales or services are difficult and sensitive jobs in Vietnam. Therefore, such job has always been handled by the law firms in Vietnam whom is aware of law and the process. The lawyers in Vietnam whom receive the case should be well informed about the legal nature of the debt profile and they must have skills on debt recovery.

Depending on the nature of each case and each specific dossier, the law firm can be able to make suitable plans to deal accordingly with the debtor.

There will be a number of methods and different solutions in the work of debt recovery. However, the recovery of debt will apply the following two basic methods:

– Mediation and agreement methods are ways that lawyers and legal professionals will come directly to negotiate and persuade debtor to make their debt payment schedule based on understanding of law and various drivers.

– Resolve through court proceeding, or arbitration. This method will be applied in the case that debtors are unwilling to cooperate, trying to evade responsibility, or the payment plan is delayed.

Time limit for settling the debt collection is influenced by different factors but the two most important factors are the legality of the documents and the payment capability of debtors.

There are debtors, after being explained the consequences and losses of non-payment, late payment by lawyers and legal experts, they were aware of and make plans to pay debts.

But there are debtors that the client requires the support and intervention of the state authorities. In such case, the duration of the case will be prolonged.

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Overview on Cosmetics Regulations in Vietnam | ANT Lawyers

Cosmetics are areas of highly regulated in Vietnam as they apply on human and could create health concern. Hence, cosmetics imported into Vietnam have to be applied special procedures to ensure safety. Cosmetics regulations in Vietnam would lay out provisions that importers and manufacturers to follow.

To carry out the Combination Convention in the cosmetic management which has been signed by countries are member of the Association of Southeast Asian Nations on September 2nd, 2003 (commonly called ASEAN Cosmetic Convention), the Ministry of Health of Vietnam issued Circular 06/2011/TT-BYT on Cosmetic Management.

The Circular dated January 25th, 2011 regulating the management of cosmetic products manufactured in the country, as well as cosmetics imported for circular in Vietnam. Besides, the cosmetic regulations is also provided in related provisions.

According to the Vietnam cosmetic regulations, cosmetic product must be construed as a substance or a preparation which is used for touch with outside parts of human body (skin, hair system, finger nails, toenails, lip, and outside reproduction organ) or teeth and mouth mucous membrane with main purpose in order to cleanse, aromatize, change the outward characteristics, form, adjust body’s smell, safeguard body, or maintain the human body in good condition. In addition to the products being grouped as cosmetic products such as: creams, emulsion, lotions, gels and oils for skin (group 1); tinted bases (group 2); toilet soaps, deodorant soaps (group 3); … some products are not classified as cosmetic.

Under Vietnam law, a cosmetic product made in Vietnam or imported into Vietnam must go through procedure of proclamation before being is sold on the market. In particular, organizations or individuals circulating the cosmetic products on the market have to be responsible for obtaining permissions through cosmetic product proclamation from authority agencies as well as responsible for safety, effectiveness, and quality of product.

For exporting cosmetic, the exporter needs to obtain the Certificate of Free Sale (CFS) as regulated. CFS is issued when such domestic cosmetic is issued the cosmetic product proclamation receipt number by competent state management agency. For importing cosmetic, enterprises are only allowed to import the cosmetic into Vietnam when presenting to the Customs agency the valid receipt number of cosmetic product proclamation report which has been issued by the Medicine Management Department – the Health Ministry. However, Vietnam law also provide import of cosmetic in some special situations which are not obligated to implement the cosmetic product proclamation as the following:

– Organization or individual who imports cosmetic in order to study and experiment;

– The organizations, individuals who receive cosmetic as gifts;

– The organizations, individuals who import cosmetic for displaying at fair, gallery and other temporary import for re-export situations.

For manufacturing cosmetic, the cosmetic regulations require 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).

Besides, compliance with the other requirements such as labeling, safety of ingredients, cosmetic advertising is also required.

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Regulation on Grid Connected Solar Power Investment Project | ANT Lawyers

The Ministry of Industry and Trade has recently issued Circular 16/2017/TT-BCT on project development and the model purchase contract for solar power projects.

Accordingly, the grid connected solar power investment projects are regulated as follows:

– The investor can only set up a solar power investment project included in the provincial and national level solar-power development plan; or provincial and national power development plan that are approved.

– The contents of the solar power investment project must comply with the regulations on management of investment in construction and the following requirements:

+ Evaluate the impact of solar power project connection plan on the power system in the area.

+ Having equipment connected to the SCADA system or moderation information so that the forecast information on electricity output can be transmitted per hour to the regulated agency.

– The equity ratio of grid connected solar power projects should not less than 20% of the total investment.

– The area of long-term land use shall not exceed 1.2 ha/01 MWp.

Circular 16/2017/TT-BCT takes effect on October 26th 2017.

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