What are the advantages of the Patent Cooperation Treaty (PCT)?

The advantages of the Patent Cooperation Treaty

The PCT is an international treaty with more than 145 Contracting States. The PCT makes it possible to seek patent protection for an invention simultaneously in a large number of countries by filing a single “international” patent application instead of filing several separate national or regional patent applications. The granting of patents remains under the control of the national or regional patent Offices in what is called the “national phase”.

The PCT System has many advantages for you as an applicant, for the patent Offices and for the general public:

You have up to 18 months more than if you had not used the PCT to reflect on the desirability of seeking protection in foreign countries, to appoint local patent agents in each foreign country, to prepare the necessary translations and to pay the national fees;

If your international application is in the form prescribed by the PCT, it cannot be rejected on formal grounds by any PCT Contracting State patent Office during the national phase of the processing of the application;

The international search report and written opinion contain important information about the potential patentability of your invention, providing a strong basis for you to make business decisions about how to proceed;

You have the possibility during the optional international preliminary examination to amend the international application, enter into dialogue with the examiner to fully argue your case and put the application in order before processing by the various national patent Offices;

The search and examination work of patent Offices in the national phase can be considerably reduced thanks to the international search report, the written opinion and, where applicable, the international preliminary report on patentability that accompany the international application;

You may be able to fast-track examination procedures in the national phase in Contracting States that have PCT-Patent Prosecution Highway (PCT-PPH) agreements or similar arrangements;

Since each international application is published together with an international search report, third parties are in a better position to evaluate the potential patentability of the claimed invention;

For you as an applicant, international publication online puts the world on notice of your invention. You may also highlight your interest in concluding licensing agreements on PATENTSCOPE, which can be an effective means of advertising and looking for potential licensees;

You also achieve other savings in document preparation, communication and translations because the work done during the international processing is generally not repeated before each Office (for example, you submit only one copy of the priority document instead of having to submit several copies); and

If your invention appears to be not patentable at the end of the international phase, you may abandon the PCT application and you will have saved the costs you would otherwise have incurred by directly seeking protection in foreign countries, appointing local patent agents in each foreign country, preparing the necessary translations and paying the national fees.

Ultimately, the PCT:

Brings the world within reach;

Streamlines the process of fulfilling diverse formality requirements;

Postpones the major costs associated with seeking multinational patent protection;

Provides a strong basis for patenting decisions; and

Is used by the world’s major corporations, research institutions and universities when they seek multinational patent protection.

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Foreign investor to join financial center project in HCMC

Jun 15,2017

HCMC will cooperate with a global financial group to build large financial centers in a move to attract foreign investment capital into key projects in the city, said city vice chairman Tran Vinh Tuyen.

The city will need up to US$40 billion for urban infrastructure, environment, health, education and manpower training projects as part of its seven breakthrough programs from now to 2020. Therefore, the city is calling for investments from various sources as its budget cannot afford this hefty capital demand.

The city government has held talks with the global financial group over construction of financial centers, Tuyen said at a meeting with department leaders on June 13.

Initially, this company would seek foreign capital for an extension metro line connecting HCMC and neighboring Binh Duong Province, Tuyen said but made no mention of the foreign group’s name.

Currently, the city relies on four financing sources to implement infrastructure development projects, namely the State budget, official development assistance (ODA) loans, bond issues and foreign investments.

According to the HCMC Department of Planning and Investment, the city’s total investments amounted to VND1,193 trillion in the 2011-2015 period, with an average annual growth rate of 9%. This amount accounted for around 30% of gross regional domestic product. In which, VND 250.8 trillion (21%) came from the State, VND 729.4 trillion (61%) from the non-State sector, mostly enterprises, and the remainder from other sources.

The city favors public-private partnership (PPP) when it comes to executing infrastructure projects. There are 20 build-transfer (BT), build-operate-transfer (BOT) and build-own-operate (BOO) projects already signed with a combined value of around VND 67.2 trillion.

In recent years, some foreign groups have expressed interest in developing a financial center in HCMC. Malaysia’s Berjaya once suggested building a financial center in District 10 before France’s Vinci Construction in October 2016 proposed cooperating with Berjaya to carry out the US$930-million project.

Three U.S. investors have recently suggested building a financial complex covering 11 hectares in Thu Thiem new urban area in District 2 with a total investment of US$4 billion.

According to financial experts, the city will contribute greatly to the nation’s gross domestic product, industrial production, export-import revenues and budget collections. The city is poised to become the financial center of Vietnam.

Source The Saigon Times

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How to Transfer Investment Capital into Bank Account Vietnam?

Foreign investors must transfer money in and out through the Direct Investment Capital Account (DICA) for investment capital contribution.

FDI enterprises, foreign investors participating in business cooperation contracts, foreign investors implementing investment activities in Vietnam in the direct foreign investment forms in accordance with current provisions of law on investment should comply with the provisions of the investment law when making investment and transfer the capital into Vietnam implementing FDI activities in Vietnam, through setting up company.

The capital contribution in cash of foreign investors and Vietnamese partners in FDI enterprises must be made through transferring to the DICA, either in foreign currencies or Vietnam dong, which are opened by FDI enterprises and foreign investors participating in a business cooperation contract at an authorized credit institution in order to perform the relevant transaction to the FDI activities in Vietnam.  From DICA account, the investor could then transfer into transaction bank accounts opened in a commercial banks in Vietnam.

The transfer of investment capital before being granted investment certificate into Vietnam and the transfer of capital abroad in case of not being granted investment certificate of foreign investors shall be complying with the provisions of the relevant regulations.

After being granted the investment certificate, the accounting of pre-establishment costs of FDI enterprises into equity or foreign loans is made on the basis of agreement between the involving parties, ensured to comply with current provisions of Vietnamese law and regulations on accounting, borrowing, repayment of foreign debts of enterprises and other relevant provisions of Vietnamese law and regulations. In case the foreign investors do not use all the investment capital transferred into Vietnam to satisfy the legal costs for the preparatory phase of investment, foreign investors can buy foreign currency and transfer the remaining investment capital abroad in foreign currency on the basis of the issuing records and documents evidencing investment capital transferred into Vietnam and the expenses incurred for investment projects in Vietnam.

In case foreign investors had moved investment capital into Vietnam to satisfy the legal costs for the preparatory phase of investment in Vietnam but were not granted the investment certificate by Vietnamese competent agencies, foreign investors are allowed to transfer the investment capital transferred abroad after deducting the expenses incurred in relation to the preparation of direct investment projects in Vietnam. The investment capital transferred abroad by foreign investors shall not exceed the maximum investment capital transferred into Vietnam and the amount of interest of non-term loans incurred (if any). Foreign investors are allowed to buy foreign currency and transfer abroad the investment capital transferred into Vietnam in accordance with valid documents proving the amount of investment capital transfer red into Vietnam and legitimate expenses incurred in relation to the preparation of investment projects in Vietnam.

Along with that, foreign investors are allowed to transfer abroad the charter capital, direct investment capital upon termination of operations (due to ending, the liquidation or the dissolution of the enterprise before maturity), interest and foreign loans, profits and other lawful income relating to operations of FDI activities in Vietnam through the DICA. In case FDI enterprises and foreign investors participating in business cooperation contracts have to close the DICA due to ending, liquidation, dissolution which lead to the termination of FDI activities in Vietnam or conduct investment capital transfer resulting in alteration of the initial legal person of FDI enterprises, foreign investors are allowed to use their DICA, either in foreign currency or in Vietnam dong, opened at authorized credit institutions in order to transfer direct investment capital and legitimate income abroad legally.

Moreover, FDI enterprises and foreign investors can use legitimate income sources in Vietnam dong or foreign currency gained from operations of FDI activities in Vietnam to perform re-investment activities in Vietnam. Simultaneously, they also have the right to use such income sources to purchase foreign currency at an authorized credit institution and transfer abroad within 30 days since the date of buying foreign currency.

The credit institutions have the right to require FDI enterprises and foreign investors to provide legal records and proofs relating to the FDI activities in Vietnam. They are also responsible for regulating, inspecting and storing the documents appropriate with the revenue and expenditure transactions of the DICA of foreign investors to ensure the revenue and expenditure transactions are made complying with the stipulations of this Circular and in accordance with the relevant provisions of the Vietnamese law and regulations; and selling foreign currency to foreign investors to transfer abroad on the basis of foreign currency balances of credit institutions.

The  laws on  investment in Vietnam will continue be adjusted to encourage investment into various sectors of the economy.  The changes of laws will be monitored by ANT Lawyers Foreign Investment Practice  in Hanoi, Da Nang and Ho Chi Minh City to provide clients with updates.

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North-south expy incentives meant to lure foreign investors

HANOI – The Ministry of Finance has approved strong financial incentives proposed by the Transport Ministry for the North-South Expressway project in a move to attract capable investors, especially those from abroad. Such incentives are aimed to minimize risks for investors wanting to get involved in this big-ticket project.

The Government has offered multiple financial incentives in preparation for inviting tenders for 20 component projects, with 17 of them under the build-operate-transfer (BOT) investment format, in the first phase of the project.

In particular, the Transport Ministry is allowed to raise toll fees in the project’s feasibility study and contract. Especially, fee adjustments can be more flexible and will not have to follow the Finance Ministry’s prevailing regulations.

Inflation of around 4% a year can be factored into toll fees. Besides, the return on equity is allowed at 14% a year, or 2-3 percentage points higher than those applied to other BOT projects.

The disbursement of investors’ capital and bank loans will follow the rates specified in their contracts in line with the progress of their projects. In other words, investors will not have to contribute their capital once upon issuance of investment certificates as regulated for other projects.

These financial mechanisms are mainly designed to attract international investors, as previous regulations have kept potential investors at arm’s length due to high risks of slow capital recovery.

The suggested return on equity ratio is about 2.15 times higher than deposit rates at commercial banks, also with the aim of luring foreign investments.

As covered in the Daily on Tuesday, the Ministry of Transport has proposed a slew of policy incentives for the North-South Expressway project.

These include the State Bank of Vietnam’s commitment to allow investors to access bank loans, while the transport ministry can apply various types of investment formats and contracts in the project that is divided into multiple components.

The ministry also asked for the Government’s permission to appoint consultants responsible for drawing up the project’s feasibility study and technical design, as well as consultants offering appraisal services for the project in phase one.

The project with four to six traffic lanes and allowing for speeds of 80-100 kilometers per hour will require an estimated VND312.4 trillion (US$13.7 billion).

The main section from Hanoi City to HCMC has 1,622 kilometers in length, of which 123 kilometers has been opened to traffic, including the Phap Van-Cau Gie, Cau Gie-Ninh Binh, and HCMC-Long Thanh-Dau Giay sections. Besides, work on the 127-kilometer Danang-Quang Ngai section is underway.

In phase one, work on some 713 kilometers is divided into 11 sub-projects, with eight public-private partnership (PPP) and BOT ones, and three others under the public investment format in 2017-2020. Besides, around 659 kilometers is developed under nine BOT sub-projects from 2011 to 2025.

The second phase from 2025 onwards is intended to extend the North-South Expressway in accordance with the project’s approved master plan.

Source: The Saigon Times

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How Foreign Investors Comply with Reports Submissions in Vietnam

Foreign investors setting up business in Vietnam have to comply with statistics report submissions according to Vietnam laws.  To ensure compliance, corporate lawyers should be consulted to ensure compliance with reports applicable to foreign owned enterprises in Vietnam.

As the current regulation, foreign owned enterprises are obliged to submit monthly, quarterly, six month and annual reports to the Vietnam Department of Statistics or State agency for foreign direct investment of respective province or city.

Monthly reports are applicable to businesses and projects operating in the industry: mining, processing industry, electricity, gas, water supply, waste disposal, water treatment, information and communications, real estate, transport, warehousing, trade and services.

Quarterly reports are applicable to businesses and projects operating in agriculture, forestry and fisheries, construction;

All foreign owned enterprises have to report every 6 months on employment and income of the employee;

On annual basis, all foreign owned enterprises have to submit reports on the identification information of the business; financial indicators reflecting business results including revenue by business lines, taxes, fees, expenses, and profit; and capital investments made during the year by investment sources and investment category.

We at foreign investment practice of ANT Lawyers, a law firm in Vietnam with offices in Hanoi and Ho Chi Minh City would be able to assist clients in regulatory and licensing matters relating to the investment and the operation of the foreign investor enterprises in Vietnam.  We could be reached at email:ant@antlawyers.vn or office tel: +848 35202779.

Source: antlawyers.vn

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Do You Need a Lawyer to Write a Demand Letter for Payment?

Not in every case the Buyer admits to being wrong or responsible for payment as agreed in contract. They may plead substantially contractual breach of the Seller or insist on the null and void of contract for their non-performance of payment. For strengthening arguments, the Seller have to base on legal grounds and evidences to request for payment under contracts. Even if the Buyer is not in good faith, the Seller has right to claim an interest on delayed payment. In a easy case and having a small total amount of payment, you can write a demand letter by yourself. Contrarily, if your case is complicated with a lager damage, an attorney’s advice is probably necessary.

Legal grounds for request the Buyer/ Debtor conforms to the payment obligation as follows:

(i) Contract, purchase order (signed by legal representative of authorized representative);

(ii Applicant laws which is referred in the contract;

(iii) International commercial customs which is referred in the contract: Incoterm, UCP, ISBP (International Standard Banking Practice), etc.

It should be emphasized that the right to claim for payment of the Seller must accompany by their obligations as per contract. If the Seller fails to conform with obligations such as: quality of goods, quantity of goods, time of delivery, manner of delivery, etc that cause miss-achievement of contract purpose for the Buyer, the Seller might disable to claim for payment by laws.

Generally, the Buyer shall make payment punctually with method agreed by parties. Accepting request for postponement of payment performance from the Buyer without any conditions shall be deemed that the payment performance is timely made. As a result, the Buyer shall not be fined for breach. It should be advised that all notifications and responses to acceptance or reject the request for postponement of payment performance must be made in written form as fax, email, mal or instead of oral forms. The more carefully retain evidences, the more effective your demand letter becomes. Then, you can attach them to your demand letters for threatening the Buyer/ Debtor.

In many case, dispute settlement provision provides that “Should there be any dispute as for contract is concerned and this cannot be resolved amicably, by negotiations between parties or through mediation of professionals, the Court of Vietnam shall have exclusive jurisdiction”. In that case, the Seller shall notice the Buyer by a demand letter after the payment term is overdue. A demand letter should be clearly expressed your intention of legal actions.

There are some suggestions that you can follow related to writing a demand letter on the first or second times. If your demand letters do not effectively work, you should request supports from lawyers as soon as possible. They have enough experience in both legal knowledge and technical language skills to press the Buyer/Debtor for payment. Moreover, ANT Lawyers has many experienced professional experts to collect information about finance, legal status… prior to give legal advice. Besides representing our Clients to follow up and negotiate with the Debtor on their action plan to pay the Debt, we can support them to file lawsuits, request the Court of Vietnam to enforce judgments, or submit written requests for initiation of bankruptcy process.

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Forms of Disputes and Approaches to Settlement

Dispute in Vietnam could be between parties in business transaction, foreign investors and Vietnam government, or between countries in implementing international treaties.

The formation of market economy in Vietnam took place in the context of the development in the width and depth of the economic ties at a significant fast pace that make Vietnam an important part of the world supply chain.  Vietnam suppliers could sell the goods and services to the world and the foreign supplier could also export their goods and services to Vietnam market.  Further, as the Vietnam market opens up, foreign investors could invest through various forms of investments in Vietnam i.e. acquire equities in Vietnam companies, establish business in Vietnam.  During this process, disputes are an inevitable result which has been growing in scale and complexity.

Most should agree that disputes shall be construed as the dissent, inconsistencies or conflicts of interests, rights and obligations between the parties in the economic relations at different levels. Accordingly, economic disputes can have the following basic forms:

1. Disputes in business are between the participants in a business transaction including investments, production to consumption of products or performance of services on the market for profit purposes i.e. professional and product liability, debt disputes over a business transaction, franchise disputes, intellectual property disputes, and disputes over contract for supply of goods or services…
2. Disputes between foreign investors with Vietnam government agencies, arising in the implementation of the BTO, BT, BOT, and the implementation of international agreements on promotion and protection bilateral and multilateral investment i.e. government policy and policy measures, concession to water and sewerage, power or energy supply, project or contract payment…
3. Disputes between countries in the implementation of the international bilateral and multilateral agreements.

In Vietnam, as the disputes arise, parties involved could consider resolving the matters through negotiation, mediation, arbitration, or taking court actions after taking consideration of various factors including cost, time, and the complexity of the disputes.  Litigation law firm in Vietnam with skillful dispute lawyers should be consulted to provide the suitable advice for dispute resolution.

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