What International Laws in International Trade Vietnam is a Signing Party to?

International trade is important for each country to grow economically and influence through exchanging products and services, utilizing resources that create competitive advantage over others. In order to enable international trade, Vietnam has been a signing party to a number of international laws, international conventions, free trade agreements.

Up to present, Vietnam is a signing party to the:

UN Convention on Contracts for the International Sale of Goods 1980 (CISG);

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

The Association of Southeast Asian Nations (ASEAN) 1967;

Vietnam is also the signing party to a number of the Free Trade Agreements:

ASEAN Free Trade Area 1992;

ASEAN Trade in Goods Agreement (ATIGA);

ASEAN Framework Agreement on Services (AFAS);

ASEAN Protocol on Enhanced Dispute Settlement Mechanism;

ASEAN-China Free Trade Area 2002;

ASEAN-India Free Trade Area 2003;

ASEAN-Japan Free Trade Area 2003;

ASEAN-Korea Free Trade Area 2005;

Vietnam – Japan economic Partnership Agreement 2008;

ASEAN-Australia-New Zealand Free Trade Agreement 2009;

Vietnam – Chile Free Trade Area 2011;

Vietnam – Korea Free Trade Area 2015;

Eurasian Economic Union 2015

ASEAN – Hong Kong free Trade Area 2017 (signed on 12/11/2017, Scheduled to be effective from 1 January 2019)

Agreements in WTO accession:

Annex 1A Multilateral agreements on trade in goods

General Agreement on Tariffs and Trade 1994

Agreement on agriculture

Agreement on the application of sanitary and phytosanitary measures

Agreement on textiles and clothing

Agreement on technical barriers to trade

Agreement on trade-related investment measures

Agreement on implementation of Article VI of the General Agreement on Tariffs and Trade 1994

Agreement on implementation of Article VII of the General Agreement on Tariffs and Trade 1994

Agreement on pre-shipment inspection

Agreement on rules of origin

Agreement on import licensing procedures

Agreement on subsidies and countervailing measures

Agreement on safeguards

Trade Facilitation Agreement

Annex 1B General Agreement on Trade in Services

Annex 1C Agreement on trade-related aspects of intellectual property rights

Until Sep 2018, Vietnam has been accelerating preparations for meeting commitments in EU-Vietnam Free Trade Agreement (EVFTA). It has been expected the EVFTA to be passed in the year of 2019, promoting Vietnam’s sustainable development through removing 99% of tariffs on goods traded between the two economies, expanding Vietnam’s textile, apparel export to the EU market. In return, the EVFTA will open Vietnamese market for EU companies and strengthen the protection of its investment into Vietnam.

ANT Lawyers law firm is a member of legal secretary of EuroCham in Hanoi, Vietnam, and has been a contribution to the legal review that support the investment into Vietnam. ANT Lawyers will be sending Mr Tuan Nguyen, the Managing Partner to take part in the EuroCham delegation visit in Brussels Mission in October 2018, with the main goal is to promote the fast conclusion of the EU-Vietnam Free Trade Agreement process, raise awareness as to the potential of Vietnam as a strategic partner for Europe, and deliver the views of the European business community in the country.

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What Are Rights and Benefits of the Employee Suffering the Occupational Accident?

Accidents can happen at any time at work. Whether a workplace accident is the result of employee carelessness or employer negligence, employers must take responsibility for accidents to employee.

Vietnam Labor Code defines occupational accident is an accident that causes injury to any part and function of the body or death to employee occurring during the working process associated with the implementation of work and labor tasks (according to Article 142 of Labour Code).

The employee has following rights when they suffer accidents:

1. The employee is paid all the payment of the co-payment costs and the costs not included under the list paid by the health insurance for the employee participating in health insurance and making full payment of all medical expenses from the first aid, emergency to the stable treatment for the employees not participating in health insurance.

2. The employee is entitled to full payment of salary under the labor contract to the employee suffering the occupational accident and having to take leave during treatment.

3. The employee participating in compulsory social insurance is entitled to enjoy the regime of occupational accident in accordance with the Law on Social Insurance.

The conditional to enjoy the regime of occupational accident: were injured in workplace or during working hours; outside the place of work or during working hours when performing work at the duty of the employer; on the road from home to work place and vice versa.

4. The employee is entitled to the enjoy labor accident allowance as:

. The employee with occupational accidents reduces working capacity from 5% to 30% are paid once.

The employee with occupational accidents reduces working capacity 5% receive an allowance of an amount equal to 5 month’ salary under labor contract and then every 1% increase has an addition of 0.5 month’ salary.

.The employee with occupational accidents reduces working capacity 31% or more receive an allowance at rate: reduce working capacity 30% shall receive 30% month’ salary under labor contract and then every 1% increase has an addition of 2% month’ salary

This allowance is paid every month.

. The death of the employee’s relative from the occupational accidents receive at least 36 months’ salary under labor contract.

5. The employee with occupational accidents not due to the fault of employee and reduce working capacity from 5% or more shall be compensated by the employer at the following rate:

. At least equal to 1.5 month’ salary under the labor contract if the employee is reduced from 5.0% to 10% of his working capacity and then every 1.0% increase, an addition of 0.4 months of salary under the labor contract if reduced working capacity from 11% to 80%;

. At least 30 months’ salary under labor contract for the employee reduced his working capacity from 81% or more or for the death of the employee’s relative from the occupational accidents.

6.Where due to the fault of the employee, he/she also receives an allowance of an amount at least equal to 40% of the rate prescribed when fault not belong to the employee.

7. In case the employee reduces his/her working capacity in temporary, the employee receives100%-month salary under labor contract the first aid, emergency to the stable treatment or until a permanent injury certificate is issued.

8. In case the employee reduces his working capacity in permanent, beside allowance of accidents, the employee reduces his/her working capacity from 81% or more receive 100% month’ salary under labor contract every month.

9. In the case of death of a worker who has paid social insurance for 15 years, relatives will receive a funeral allowance and dependents will be entitled to a minimum of 50% of the basic salary for each person.

10. In case of the employee’s death and had participated in compulsory social insurance for less than 15 years, the burial attendants receive allowance at least 10 months’ salary under labor contract at once.

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Anti-dumping measures under Vietnam laws

Vietnam joined the WTO, signed various types of trade agreements, and step by step eliminated tariff and non-tariff barriers and accelerated the process of integration and development of Vietnam. The Foreign Trade Administration Act of 2017, which regulates trade remedies, has also terminated the effect of the Ordinance on Anti-dumping of Imported Goods in 2004.

According to the Law on Foreign Trade Management, Decree 10/2018 / ND-CP, anti-dumping measures against goods imported into Vietnam is a measure applied in cases where the goods are identified dumping when imported into Vietnam causes substantial injury or threatens to cause material injury to a domestic industry or prevents the formation of a domestic manufacturing industry. A commodity is determined to be dumping when it is compared to the following conditions: the selling price in Vietnam is lower than the normal price. The usual price determination is regulated by the Law on Foreign Trade Management in three ways: the price of the like goods at exporter, the price of the like goods in the third country under normal commercial conditions or the price determined by the investigating agency by the method of self-calculation.

For the application of anti-dumping measures, the “sale price” factor is not sufficient, but must fully satisfy the conditions prescribed by law. Accordingly, the dumping measure is applied when the dumping margin is over 2%; the domestic industry suffered material injury or threatened to cause material injury; there is a fruitful relationship between the importation of goods selling prices and the domestic production. With the margin of dumping below 2%, anti-dumping measures are not applicable.

The application of anti-dumping measures is considered as a way of healthy competition of enterprises. Domestic enterprises may request the competent agencies to apply this measure when they find that they fully satisfy the conditions on quantity and volume of goods related to their selling prices and the proportion of goods that they sell on the market devaluation (at least 25%). On the basis of the conclusions of the investigation, the anti-dumping tax shall be applied for not more than 5 years or the measures for elimination of dumping at the request of the domestic enterprises if they are approved by Vietnam Competition Authority, the investigation bodies.

An anti-dumping duty shall apply retroactively prior to the decision of the Minister of Industry and Trade. Anti-dumping duty shall be retroactively applied to imported goods for a period of 90 days before the imposition of provisional anti-dumping duty if the imported goods are found to be dumped.

Therefore, anti-dumping measures are a way to protect the domestic industry and at the same time create a healthy competition between foreign enterprises and Vietnamese enterprises. At the same time, respect for international commitments, trade agreements that Vietnam signed when joining the WTO.

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What are Requirement on Sending Notices in Arbitration Proceedings in Vietnam?

According to Article 12 of Vietnam Law on Commercial Arbitration, unless otherwise agreed by the parties or provided by the arbitration center’s rules of proceedings, the mode and order of sending notices in arbitral proceedings for dispute are specified as follows:

Each party’s written explanations, correspondence papers and other documents shall be sent to the arbitration center or arbitration council in sufficient copies so that every member of the arbitration council and the other party has one copy, and one copy is filed at the arbitration center;

Notices and documents to be sent by the arbitration center or arbitration council to the parties shall be sent to the addresses or to their representatives at the correct addresses notified by the parties;

Notices and documents may be sent by the arbitration center or arbitration council directly, in registered or ordinary mails, by fax. telex, telegram, email, or other modes which acknowledge such sending;

Notices and documents sent by the arbitration center or arbitration council will be regarded as having been received on the date the parties or their representatives receive them or if such notices and documents have been sent to addresses or to their representatives at correct address notified by the parties;

The time limit for receiving notices and documents shall be counted from the date following the date such notices and documents are regarded as having been received. If the following date falls on a holiday or day off under regulations of the country or territory in which the notices and documents have been received. this time limit shall be counted from the subsequent first working day. If the last day of this time limit falls on a holiday or day off under regulations of such country or territory, the time of expiration is the end of the subsequent first working day.

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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;

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.

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

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

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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.

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.

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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 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 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.

How ANT Lawyers Could Help Your Business?

Our cybersecurity lawyers in Vietnam always follow development of laws to provide the client with update. For advice or service request, please contact us via email ant@antlawyers.vn, or call (+84) 24 730 86 529.

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