Documentation requirements for grant of certificates of conformance to food safety regulations are now available

This is the highlight of the Circular No. 43/2018/TT-BCT on food safety administration within the scope of responsibilities assigned to the Ministry of Industry and Trade.

The Circular prescribes that, in case of application for initial issue of a certificate of conformance to food safety regulations, application documentation will be comprised of the followings:

- The completed application form No. 01a.

- The interpretation of facilities, equipment and appliances conforming to food hygiene and safety regulations prepared using the form No. 02a (applicable to manufacturing establishments), 02b (applicable to business establishments) or the form No. 02a and 02b (applicable to manufacturing and business establishments).

- The certificate of fitness for occupation/ the list of workers fit for work of the owner of the food manufacturing and business establishment and the person directly manufacturing and trading foods, issued by a district-level healthcare service provider (a duplicate copy attested by the applicant establishment).

- The certificate of completion of training in food safety knowledge/ the certificate of acquisition of food safety knowledge of the food manufacturing and business establishment and the person directly manufacturing and trading foods (a duplicate copy attested by the applicant establishment).

This means that the certificate of business registration/ the certificate of enterprise registration/ the certificate of investment in the food manufacturing and business industry will not be required in comparison with the application requirements prescribed in the Circular No. 58/2014/TT-BCT dated December 22, 2014 remaining in force to date.

The Circular No. 43/2018/TT-BCT will take effect on January 1, 2019.

Source: Thuvienphapluatvn

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The Regulations on Mediation in the Draft of Law on Mediation, and Dialogue in Vietnam

Over the past few years, the civil cases or administrative claims have been increasing on quantity as well as complex nature. There are opinions that, in reality, while Western countries choose negotiation or mediation as the first measure of dispute settlement, court is favored in Vietnam as main measure of dispute resolution in Vietnam. Theoretically, Vietnam legal system shows that the regulations on mediation, dialogue have been relatively formulated during the judicial reform process. To address the gap in reality, there are recent changes in regulations encouraging parties to use mediation and dialogue as dispute resolution. Recently, the Draft Law on Mediation, Dialogue at the Court has been published since 01 October 2018 for public opinions.

Organization of Court Annexed Mediation and Dialogue in Vietnam

In order to implement mediation and dialogue at court, the Chief Justice of People’s Supreme Court issues the decision on establishing Mediation and Dialogue Center including Director, Deputy Director(s), Mediators. The Director is the head of Center appointed by one of two following measures: (1) the Chief Justice of the Court in the locality where the Center is located assigns the Judge to act according to the rotational regime; or (2) the Mediators elect among themselves. Human resources are mobilized to appoint Mediators selected from the followings: (1) retired Judges, Procurators, Investigators and other retired judicial officials; (2) Retired junior or senior officials; (3) Experts and other professionals with at least 10 years of experience in its work; and (4) Person with high prestige in society and satisfying the following standards:

– Being a Vietnamese citizen, residing in Vietnam, loyal to the Fatherland and the Constitution of the Socialist Republic of Vietnam, having good moral qualities, having strong political will and prestige in the community, honest, objective;

– Having good health to ensure the fulfillment of the assigned tasks;

– Having experience and capacity for mediation and dialogue;

– Volunteer for mediation, dialogue settlement.

In the situation of tight state budget and overload of work at Court, the mobilization of human resources not belonging to the State but meeting certain criteria for being Mediators is one of the necessary requirements to ensure the success of this regulation.

Scope of Court Annexed Mediation and Dialogue in Vietnam

Scope of mediation and dialogue under the provision of this Draft shall be applicable to civil and administrative disputes; request for recognition of voluntary divorces, child custody agreement, division of property upon divorce within the jurisdiction of the Court according to the provisions of the Civil Procedure Code, Law on Administrative Procedures or civil, administrative dispute requested by one or more parties to the Court annexed mediation and dialogue for settlement.

The Procedures for Court Annexed Mediation and Dialogue in Vietnam

Upon receipt of the lawsuit petition, petition for recognition of voluntary divorces, child custody agreement, division of property upon divorce as provided in Article 190 of the Civil Procedure Code, Article 119 of the Law on Administrative Procedures, the Court shall forward the petition, request and the documents and evidences enclosed to the court annexed Mediation and Dialogue Center when satisfying the following conditions: (1) The case falls under the jurisdiction of the Court; (2) The claimant, the defendant do not refuse the mediation or dialogue before the court accepts the case; and (3) The case shall not fall into the case which must not be mediated under the provisions of the Civil Procedure Code or which dialogues cannot be held under the Law on Administrative Procedures.

According to the prevailing laws, there are two types of conciliation: pre-litigation conciliation and conciliation in litigation proceedings. The conciliation process under Civil Procedure Code, Law on Administrative Procedures shall not be governed by the Law on Mediation and Dialogue. Therefore, mediation under this draft law is in the form of optional pre-litigation mediation.

Recognition and Enforcement of Court Annexed Mediation Settlement in Vietnam

After mediation or dialogue, the parties can request the Court to recognize the successful mediation or dialogue settlement. The decision to recognize or to not recognize a successful out-of-Court mediation result shall immediately take effect and shall not be appealed against according to appellate procedures (Item 8 of Article 419 of the Civil Procedure Code 2015), but can be protested according to cassation or reopening procedures under the provisions of the Civil Procedure Code. This provision is also recorded in the Draft of Law on Mediation, Dialogue. Out-of-court mediation results are recognized by the court and will be enforced by civil judgment enforcement agencies under law on enforcement.

From the international experience and the reality of Vietnam, the effective implementation of the mechanism of mediation and dialogue has great significance for the settlement of civil and administrative disputes, promotes consensus in society; reduces the number of cases workload, the demand to bring to trial; facilitates the Court to focus resources to further improve the quality of the trial.

Pilot Project of Court Annexed Mediation in Vietnam

Through the pilot project under decision No. 332/QD-TANDTC dated Mar 9th, 2018, Official letter No. 48/TANDTC-PC dated Mar 9th, 2018, and Official letter No. 72/72/TANDTC-PC dated Apr 16th, 2018 the Mediation and Dialogue Center in Hai Phong has received more than 2,500 petition and brought to mediation, dialogue nearly 2,400 applications. The project has been expanded to Hanoi, Ho Chi Minh City, Da Nang, Bac Ninh, Khanh Hoa, Long An. The results and experience of the project will be an important basis for the drafting of the Law on Mediation and Dialogue.

Tuan Nguyen, Esq., CEDR Accredited Mediator

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Vietnam’s wind power tariffs attractive, but grid capacity a major concern

Vietnam’s new feed-in tariffs are attracting great interest in wind power, but investors are concerned about grid connection and purchase agreements.

The new feed-in tariffs (FIT) are expected to be attractive to domestic and foreign investors, Tommaso Rovatti Studihard, South East Asia sales director for wind power developer Vestas Asia Pacific, told VnExpress International.

The government recently approved tariff revisions under Decision 39 on support mechanisms for the development of wind power.

The decision, effective from November 1 this year, raises the tariffs from 7.8 US cents per kWh to 8.5 US cents for onshore and 9.8 US cents for offshore generation respectively.

"Electricity demand will grow at an estimated 8 - 10 percent a year from now to 2030. This represents realistic opportunities for investors," Studihard said.

Conjecturing that the national plan envisages adding 1,000 MW of wind power by 2020 and 6,000 MW by 2030, he said the targets are achievable.

"Vestas is excited about the Vietnamese market, probably this is the most promising market in the Asian region with very good wind resources," he said.

Vestas has so far put three wind power projects into operation in Vietnam and plans to have another project come online by 2019 and "do a lot more in the future."

Studihard noted that over the next three to five years there are huge opportunities in Vietnam to have some gigawatts of wind power, but the bankability of the power purchase agreement (PPA) remains an issue with many investors, especially international investors, and banks finding it a little difficult to be comfortable with.

There are no clear termination and force majeure clauses in the PPA, which hinders the attraction of foreign investment, especially from banks and credit institutions, he explained.

"One more problem is Vietnam’s weak grid capacity, which would become a bottleneck for developing wind and other renewables. The grid needs to be upgraded to tap the great potential Vietnam has for offerable, sustainable and reliable wind power."

Bui Van Thinh, CEO of the Thuan Binh Wind Power JSC (TBW), said having gained success in developing the 24MW Phu Lac wind power project in the central province of Binh Thuan, TBW is completing procedures to start construction of a 30MW wind power project in neighboring Ninh Thuan Province.

But the weak grid capacity is the biggest challenge to expanding renewables like wind and solar power, he said.

The transmission line near Phu Lac site could handle 100MW, compatible with two 50MW wind power projects.

Overload capacity is imminent once a solar power project connects with the transmission line, Thinh noted, citing the concerning fact that there are eight solar power projects in the locality approved to connect with the grid.

"The government should instruct the state-run Electricity of Vietnam (EVN) to install transmission lines to cope with the renewable power projects across the country, especially those in Ninh Thuan and Binh Thuan."

Ninh Thuan and Binh Thuan are central provinces that have the greatest potential for renewable energy in the country.

While 2,000 MW of solar power are proposed to be generated in Ninh Thuan, the local transmission line can only handle a few hundred megawatts. Thus, 110 kV or 220 kV transmission lines need to be installed before pushing the power to the 500kV transmission line and sending it to Ho Chi Minh City or Danang City, Thinh added.

Nguyen Van Thanh, deputy head of the Ministry of Industry and Trade’s Electricity and Renewable Energy Authority, said demand for energy, wind power in particular, has been growing rapidly.

The need for ensuring energy security but also sustainable development has changed Vietnam from an energy seller to buyer, with the country’s dependence on imported energy sources also rising, he said.

Vietnam also faces a shortage of primary energy, with coal imports posing many risks related to supply, price and transportation, he noted.

"Given that, efficient exploitation of new and renewable sources would play a key role in the country’s socio-economic development, energy security and sustainable development.

"The country is working diligently to draft policies for the efficient and economical use of energy, diversification of energy sources and increasing application of new and eco-friendly technologies," Thanh added.

Under the revised Power Development Plan VII, power stations in the country are expected to generate a total of 60,000 MW by 2020. Of these, coal-fired stations would make the largest proportion of 42.7 percent, followed by hydropower (30.1 percent), gas-fired plants (14.9 percent) and renewable energy sources (9.9 percent).

By 2030, the total capacity would soar to 129,500 MW, with coal and gas-fired plants accounting for 42.6 percent and 14.7 percent respectively, similar to the figures set for 2020. But the ratio of renewable energy sources is set to double to 21 percent by then.

Source: evnexpress

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Insurance business requirements are streamlined

On November 7, 2018, the Government promulgated the Decree No. 151/2018/ND-CP on revision of investment and business requirements under the state management, especially in the insurance business sector.

The Decree revises certain noticeable contents as follows:

- Requirements for grant of the license for establishment of the insurance enterprise or the insurance brokerage enterprise:

The requirement under which the organization contributing capital to establishment of an enterprise must not have the accrued loss till the date of submission is abolished.

- Requirements for establishment of an insurance joint-stock company:

+ Have at least 2 shareholders that meet requirements set forth in clause 1 of Article 7 and own at least 20% of total share of the company (the previous requirement prescribes 2 founding shareholders).

+ Repeal the requirement: Within duration of 03 years from the date of issue of the license, founding shareholders must own at least 50% of ordinary shares of the company of which sale is authorized.

For more details, see the Decree No. 151/2018/ND-CP (in force from November 7, 2018).

Source: Thuvienphapluatvn

To Set up business in Vietnam, please contact our lawyers for advice via email ant@antlawyers.vn or call our office at (+84) 24 730 86 529

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Vietnam Ratifies the Comprehensive and Progressive Agreement for Trans-Pacific Partnership

Vietnam has recently ratified the Comprehensive and Progressive Agreement for Trans-Pacific Partnership – CPTPP (before Trans-Pacific Strategic Economic Partnership Agreement – TPP. This Agreement was signed on 08 March 2018 in Santiago, Chile including 11 countries New Zealand, Canada, Japan, Mexico, Singapore, Brunei, Chile, Malaysia, Peru, Australia and Vietnam.

TPP was initially expected to form a largest free trade area in the world with the participation of the United States of America (USA). Nonetheless, the President of USA – Mr. Donald Trump – withdrew USA from TPP, and the remaining members have to re-negotiate and establish CPTPP as a result. Eleven countries participating in the CPTP have total GDP of USD 10,000 billion equivalent to 13.5% of global GDP.

CPTPP will contribute to boost the export of goods to major markets such as Japan, Australia, Canada and Mexico as well as attract foreign investment into the sectors that Vietnam needs to be developed. Further, this participation has established trade relations with the countries which have never signed a free trade agreement with Vietnam before such as Canada, Mexico or Peru. One of the commitments of CPTPP, the members of CPTPP agree to eliminate import duties on almost all products within 7 years, and Vietnam is flexible up to 10 years. Joining CPTPP, Vietnam not only commits to open up markets, remove tariff barriers, continue to open and facilitate trade, but also continues to show the transparency of the State management on market’s development. The business lines being benefited directly and strongly from CPTPP are garment, textile, footwear, food manufacturing, drink, confectionaries, tobacco, …which is expected to receive investment from oversea through setting up company, factory, and business joint venture in Vietnam.

Further, CPTPP regulates the new legal issues being labour, environment, government procurement, Intellectual Property, state enterprises, …The CPTPP essentially retains the provisions of the TPP Agreement, but with the USA withdrawal, it allows Member States to reserve a number of articles to ensure the balance in the new situation.

In conclusion, Vietnamese enterprises should firstly keep up the commitments of CPTPP in order to seek up the favorable policy trends and to prepare the plans to build competitiveness and enhance the prestige on brand and product quality.

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Abolishing regulations on cosmetics management

The Government has promulgated the Decree No. 155/2018/ND-CP on amendments and supplements to certain regulations regarding investment and business requirements under the state management of the Ministry of Health.

The Decree abolishes regulations set forth in the Circular No. 06/2011/TT-BYT on cosmetics management as follows:

- Removing the duplicate copy of the Certificate of Business Registration of an organization or individual responsible to launch cosmetic products into the market from the application requirements for announcement of cosmetic products. 

- Removing the following documents from the application requirements for the certificate of conformance to ASEAN Cosmetic Good Manufacturing Practices:

+ Duplicate copy of the Business Registration Certificate or the Investment License.

+ Training program and assessment report of the “Cosmetic Good Manufacturing Practices” training internally held by a cosmetic business. 

+ List of cosmetic products in process or in the process planning.

Additionally, the Decree No. 155 abolishes certain regulations on cosmetic manufacturing requirements prescribed in the Decree No. 93/2016/ND-CP dated July 1, 2016.

The Decree No. 155/2018/ND-CP will take effect on November 12, 2018.

Source: Thuvienphapluatvn

To set-up business in Vietnam, Please contact our lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529

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Decree: Amending certain decrees on investment and business requirements, and administrative procedures in the information and communications sector

Amendments to and abrogation of certain articles of the Government’s Decree No. 195/2013/ND-CP dated November 21, 2013 on elaboration and implementation of the Law on publishing

1. Clause 1 Article 7 is amended as follows:

a) Point a Clause 1 is amended as follows:

“a) The application for the license for establishment of representative office shall be made in Vietnamese (if a foreign language document is submitted, it must be translated into Vietnamese and legally notarized) and submitted to the Ministry of Information and Communications. The application includes: The application form for the license; the written certification granted by a foreign competent authority certifying that the publishing house or the publication distribution company (the applicant) lawfully operates in the country where its head office is located; the certified copies or the copies presented with their originals for verification purpose of bachelor’s degree or academic qualifications of higher level, the criminal record and the family register or documents proving the lawful residence in Vietnam of the head of the representative office, issued by competent authorities of Vietnam;"

b) Point b Clause 1 is amended as follows:

“b) Within 20 business days from the receipt of a complete application, the Ministry of Information and Communications shall issue the license for establishment of the representative office to the applicant; in case of refusal, a written response in which reasons for such refusal are indicated must be given to the applicant.

If an application submitted through the Internet or postal service is incomplete or contains incorrect forms of documents, within 03 business days from the receipt of the application, the Ministry of Information and Communications (the Agency of Publication, Print and Release) shall inform and instruct the applicant to modify the application either by telephone, email or fax.

A license for establishment of representative office is valid for 05 years from the date of issue and may be extended provided that each extension shall not exceed 05 years.”

2. Point c Clause 2 Article 7 is amended as follows:

“c) Within 07 business days from the receipt of a complete application, the Ministry of Information and Communications shall re-issue or extend the license for establishment of the representative office; in case of refusal to re-issue or extend the license, a written response in which reasons for such refusal are indicated must be given to the applicant.”

3. Point a Clause 1 Article 8 is amended as follows:

“a) It must have a head office of adequate area meeting relevant regulations on standards of working offices;”

4. Clause 1 Article 9 is amended as follows:

a) Point a Clause 1 is amended as follows:

“a) Before appointing the general director (or director) or the editor-in-chief of a publishing house, the agency in charge of managing such publishing house must submit an application for approval from the Ministry of Information and Communications. The application includes: The application form for approval of the personnel appointment; the resume of the to-be-appointed person; the certified copy or the copy presented with its original for verification purpose of the bachelor’s degree or higher of the to-be-appointed person;”

b) Point c Clause 1 is amended as follows:

“c) Within 15 business days from the receipt of a complete application, the Ministry of Information and Communications shall give or refuse to give a written approval for the appointment, dismissal or discharge of the general director (or director) or the editor-in-chief of a publishing house.”

5. Point b Clause 2 Article 13 is amended as follows:

“b) With respect to documents proving production space: The certified copy or the copy presented with its original for verification purpose of the certificate of land use rights or the contract or any documents proving the land allocation or lease of land, premises or workshop."

6. Clause 2 and Clause 3 Article 14 are amended as follows:

a) Point b Clause 2 is amended as follows:

“b) Within 20 business days from the receipt of a complete application, the Ministry of Information and Communications shall issue the license to import publications to the applicant; in case of refusal, a written response in which reasons for such refusal are indicated must be given to the applicant.”

b) Point b Clause 3 is amended as follows:

“b) Within 07 business days from the receipt of a complete application, the Ministry of Information and Communications shall re-issue the license to import publications to the applicant; in case of refusal to re-issue the license, a written response in which reasons for such refusal are indicated must be given to the applicant.”

7. Article 17 is amended as follows:

a) Point a Clause 1 is amended as follows:

“a) It must have a server located in Vietnam;”

b) Clause 2 is amended as follows:

“2. Requirements regarding technicians in charge of operating and managing the publishing and distribution of e-publications are laid down in Point a Clause 1 and Point a Clause 2 Article 45 of the Law on publishing. To be specific:

They must complete training courses in Information Technology.”

c) Point b Clause 3 is amended as follows:

“b) Technical measures must be adopted to prevent unauthorized access via the Internet;”

8. Point b Clause 2 Article 18 is amended as follows:

“b) Within 15 business days from the receipt of the documentation of registration of e-publication publishing or distribution, the Ministry of Information and Communications shall examine the implementation of the Scheme and give a written certification of registration of e-publication publishing or distribution to the applicant; in case of refusal, a written response in which reasons for refusal are indicated must be given to the applicant;”

9. The following regulations of the Government’s Decree No. 195/2013/ND-CP dated November 21, 2013 on elaboration and implementation of the Law on publishing shall be abrogated:

a) Point c Clause 1 Article 6;

b) Clause 3 Article 8;

c) Points b, c, e Clause 1 Article 17;

d) Point a Clause 3 Article 17;

dd) Clause 5 Article 17.

Source: Thuvienphapluatvn

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