Handling Violations of Competition Laws in Vietnam

Foreign brands are increasingly popular in the Vietnam market as Vietnam economy integrates into world economy.The openings of economy creates opportunities to attract foreign investment into Vietnam through establishment of companies. To continue to protect the fair competition, and interest of consumer, it is important that the Vietnam state authority ensures the business environment. Accordingly, violations related to competition will be handled in accordance with the law.

Acts of violation of competition under Vietnam laws are defined in Article 1 of Decree 71/2014 / ND-CP, including: violations of regulations on control of acts of restraint of competition; acts of violating regulations on acts of unfair competition; violations of other provisions of law on competition. According to the provisions of law, the above acts shall be subject to the forms of punishment and fine. The most common and most powerful impact on businesses and consumers are the violation of unfair competition.

In practice, there are a number of instances where unfair competition acts are associated with intellectual property rights violations, which have a significant impact on business activities of enterprises in the same field; violation of business secrets; activities of advertising that are prohibited i.e. make direct comparison against competitor, provide falsified or confused information to consumers…

If committed acts of unfair competition, the violator will be subject to fine level from VND 10,000,000 to VND 140,000,000. At the same time, additional measures and remedies will be applied, depending on the seriousness of the breach, such as the revocation of the enterprise registration certificate; deprivation of the right to use licenses or practice certificates; confiscation of material evidences and means used to commit the violation, including the confiscation of profits earned from the commission of the violation; to restructure the enterprise, rectify to the public…

From the management of state authority, the detection and handling of unfair competition acts create conditions for enterprises to have equal opportunities in the market economy. From the enterprise’s perspective, it is important to continuously review its business activities in Vietnam to ensure compliance to competition law by its lawyers.

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Foreigner Can Buy House in Vietnam

As investment in properties oversea is a big decision, it is suggested the investor consult with real estate lawyer in Vietnam to help checking the eligibility of the developer, the construction permits and other legal documents granted for the project. It is important to review the transaction documents in regard to deposit agreement, sales agreements and other agreements the developer might propose to ensure the protection of rights, to minimize risks and ensure compliance.

On November 25th, 2014, the National Assembly of the Socialist Republic of Vietnam has approved the Housing Act 2014. One of the most prominent new changes is that a foreigner is entitled to purchase a house in Vietnam.

Foreign objects (organization and foreign individual) can own houses in Vietnam are:

Overseas organizations and individuals investing in housing construction under projects in Vietnam according to the provisions of the Housing Law and related legal documents;

Enterprises with foreign investment capital, branch or representative offices of foreign enterprises, foreign investment funds and foreign bank branches are operating in Vietnam (hereinafter referred to as foreign organizations);

Foreign citizens are allowed to enter Vietnam.

Form of ownership housing foreigner in Vietnam:

Investment in housing construction under the project in Vietnam according to the provisions of the Housing Law and related legislation;

Purchasing, leasing, donation or inheritance of commercial housing includes apartments and individual houses in the investment projects of housing construction (Except for housing projects in the area of ensuring national defense and security as stipulated by the Government of Vietnam).

Condition, right and obligation of foreigner when buy house in Vietnam:

For individuals or organizations investing in housing construction under a project in Vietnam when seeking to own houses in Vietnam they must satisfy the following conditions:

Have an investment certificate

Have housing projects that are built in the project in accordance with the law on housing

For foreign organizations or enterprises with foreign investment capital, branch or representative offices of foreign enterprises, foreign investment funds and foreign bank branches operating in Vietnam, when seeking to buy a house in Vietnam they must satisfy the following conditions:

Have investment certificates or documents relating to the permit to operate in Vietnam (hereinafter referred to as investment certificate) issued by the competent State agencies of Vietnam.

For foreign individuals buying a house in Vietnam:

Allowed to enter Vietnam and are not entitled to the privileges and immunities of diplomatic and consular as stipulated by law.

For foreign organizations or enterprises with foreign investment capital, branch or representative offices of foreign enterprises, foreign investment funds and foreign bank branches operating in Vietnam and individual foreigners seeking to buy a house in Vietnam, they can own a house in Vietnam when:

Buy, lease, donate, inherit and own, to not exceed 30% of the apartments in an apartment building; if the houses are individual houses including villas, semi-detached houses and located in an area with a population equivalent to ward-level administrative, the allowed units that foreigners are permitted to buy, lease, donate, inherit and own must not exceed two hundred and fifty houses;

For foreign individuals, they shall be entitled to own a house as agreed in the contract of sale, lease, donate or inherit housing but not exceeding a term of 50 years from the date of issuance of the certificate of ownership and it can be extended according to the provisions of the Government if required; the housing ownership period must also be specified in the certificate;

In the case of foreign individuals married to a citizen of Vietnam or married to a Vietnam citizen settled in a foreign country, they can own the houses for a long and stable term. They also have owner’s rights like a Vietnam citizen;

For foreign organizations, they shall be entitled to own a house as agreed in the contract of sale, lease, donate or inherit the house but not exceed the term specified in the certificate of ownership, including the extended time. The housing ownership period is calculated from the date of receipt of the certificate of ownership and specified in the certificate.

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Several Noted Points on Law Competition of 2018

Vietnam Law on Competition has been adopted and will be effective on July 1st, 2019. The competition law of 2018 has changed in comparison with the Law on Competition 2004. Theses changes are fundamental which enterprises should be aware of when entering into Vietnam through M&A activities. Competition lawyer in Vietnam should be consulted for update and development to avoid non-compliance.

Firstly, the Competition Law 2018 gave up regulations on the limit of acts of economic concentration. Accordingly, Article 30 prohibits an enterprise from conducting economic concentration that has the potential to cause significant adverse effects on competition in the Vietnamese market. Contrary to previous regulations, Competition Law 2004 prohibits economic concentration if the combined market share of enterprises participating in economic concentration accounted for more than 50% in the relevant market.

Secondly, the Competition Law 2018 under Article 112 provides clemency policy for enterprises violating competition regulations. Accordingly, enterprises which voluntarily declare to help the National Competition Committee detect, investigate and deal with prohibited competition restriction acts will be exempted or reduced penalties according to the leniency policy. The leniency policy is applicable to no more than three first enterprises applying for leniency to the National Competition Commission.

Thirdly, unlike the Competition Law 2004, the Competition Law 2018 specifies the maximum fine for violations of competition law. 

For organization:

- Violating regulations on the acts of economic concentration: a maximum fine of 5% of the total turnover of the business on the relevant market. 

- Violating regulations on unfair competition: a fine of up to VND 2 billion

- Violation of other regulations: up to 200 million VND.

For individual, the fine level is 50% of the organization’s level.

Fourth, on threshold of economic concentration.The Competition Law 2004 stipulated that for centrally-run enterprises with a market share of between 30% and 50% in the relevant market, the competition authority must notify the competition authority before conducting the economic concentration. At present, the Competition Law 2018 is not regulated specifically as above, but only the notification threshold of economic concentration is determined based on one of four criteria as following:

- Total assets on the Vietnamese market of enterprises participating in economic concentration;

-The total turnover in the Vietnamese market of enterprises participating in economic concentration;

- Transaction value of economic concentration;

- Market share in the relevant market of enterprises participating in economic concentration.

Finally, new regulation on the time limit for dealing with a breach of competition law. Previously, to solve and deal with cases of economic concentration violation, it is necessary to undertake a preliminary investigation and formal investigation. In particular, the preliminary investigation is 30 days; formal investigation is 60 days with unfair competition; 180 days with the agreement restriction competition, economic concentration. Competition Law 2018 no longer stipulates two phases of the above investigation, but only that the investigation period is 09 months for restricted competition; 90 days with economic concentration; 60 days with unfair competition cases.

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Process Service in Vietnam

Process service is the notification and delivery of court and the civil judgment agency’s documents to litigants in accordance with the law.

The process service is conducted using the following methods:

Grant, served and notify directly by post or by authorized third party;

Publicly listing;

Announcement on the mass media.

With the 1st and 2nd methods, previously, the court clerk, expert at the civil enforcement agency or even judges and executors served on their own. Or, these agencies can also send a letter by post; send the documents that need to be served to ask police precinct, ward people’s committee or neighborhood steering committee to serve instead.

With the 3rd method, the serve is done through such media as radio, television, newspaper, radio

Finally, because of the significance and importance of the serve, law regulates that the person who obliged to serve the procedural documents, if do not done correctly their responsibilities then depending on the nature and seriousness of the violation, he/she must be disciplined, administratively sanctioned or prosecuted for criminal liability; if causing damage, he/she have to pay compensation in accordance with law.

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

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

Civil cryptographic products and services are:

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

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

Trading in civil cryptographic products and services requires:

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

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

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

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

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

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

e/ Having an appropriate business plan.

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

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

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

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What Documents Required to File Petition by Arbitration in Vietnam?

According to Article 30 of Vietnam Laws on Commercial Arbitration, petitions and enclosed documents for initiating dispute by arbitration in Vietnam will be submitted as following instructions:

When a dispute is settled at an arbitration center, the plaintiff shall file a petition at the arbitration center as agreed. When a dispute is settled by ad hoc arbitration, the plaintiff shall make a petition and send it to the defendant.

The petition contains the following details:

1.Date of its making;

2.Names and addresses of the parties; names and addresses of witnesses, if any;

3.Summary of the circumstances of the dispute:

4.Grounds and evidence for initiating the lawsuit, if any:

5.Specific requirements of the plaintiff and the value of the dispute:

6.Name and address of the person whom the plaintiff selects as arbitrator or requests to be designated as arbitrator.

Enclosed with the petition shall be the arbitration agreement and the originals or copies of relevant documents.

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What Documents and Evidence Should be Required to Arrest or Release Ship from Arrest?

According to Article 134 of Vietnam Law on Maritime, the requester needs to provide documents and evidence attached with a written request for arrest of ships or a written request for release of ships from arrest. 

Upon filing a request for arrest or release of ships, the person requesting such arrest must file a written request for arrest of ships or a written request for release of ships from arrest, enclosing documents and evidence stating that such request or release of ships is sound and legitimate.

Where documents about and evidence for a request for arrest or release of ships from arrest are all written in a foreign language, a Vietnamese translation copy must be submitted and legally authenticated in accordance with Vietnamese legislation. With respect to documents and papers created, issued and certified by a foreign competent authority in accordance with such foreign country's laws, the consular legalization is required, except when this consular legalization process is exempted in uniformity with international agreements to which the Socialist Republic of Vietnam is a party.

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H1 foreign investments in property exceed 2017

HCMC - Foreign direct investment (FDI) capital pledged for Vietnam’s property market in the year’s first half witnessed a big surge and was higher than total pledged capital of the entire year of 2017, according to national investment data.

Data of the Ministry of Planning and Investment’s Foreign Investment Agency shows that the property sector attracted the second highest registered FDI capital in January-June with over US$5.5 billion, or over 27% of total registered capital in the period. Meanwhile, last year recorded only US$3.05 billion pledged for the sector, equivalent to some 8.5%.

Among large-scale property investments is the smart town project worth more than US$4 billion in Hanoi’s outlying district of Dong Anh. Developed by a Japanese investor, it is the most capital-intensive FDI project in the six-month period.

Another big investment is the Lotte Mall Hanoi project by a South Korean investor. This US$600-million project is a complex comprising shopping mall, hotel, office space and apartment functions.

Amata Vietnam earlier got licensed to construct an industrial city in the northern province of Quang Ninh. The 714-hectare project is an expansion to the north by the company after successfully developing Amata City Bien Hoa in the southern province of Dong Nai, which has attracted 165 investors from over 20 countries and territories.

Commenting on the property market in the year’s first half, deputy managing director of Savills Vietnam Troy Griffiths said that the stable macro-economic development has given a boost to the domestic market and FDI attraction. Foreign investors have still showed interests in Vietnam’s property market.

Besides direct investments, foreign indirect investments have increased via mergers and acquisitions (M&A) and stake purchases at domestic businesses or developed projects.

M&A activities have been quite busy in the past time. Notably, Japan’s Nomura Real Estate has acquired a 24% stake in Sunwah Tower, a 22-level office building located right in the heart of HCMC. This is the first grade-A office building in Vietnam that Nomura has invested in.

Vingroup’s Vinhomes last April signed a deal with Singaporean investment fund GIC Private Limited, under which the latter will invest US$1.3 billion via acquisition of Vinhomes shares and provision of a debt-like instrument to implement projects.

The central bank’s measures to restrict property lending, control bad debts and maintain credit growth have made domestic investors seek other capital sources, including via M&A.

Meanwhile, in the eyes of foreign investors, the domestic property sector still holds potential for growth. High profitability has kept Vietnam appealing to investors in comparison to regional rivals.

According industry experts, this year may see a new record of M&A transactions in the property sector. This investment model is getting more popular when combining strengths of parties involved, which are financial capabilities and experience of foreign investors and domestic enterprises’ understanding of investment procedures and ownership of large land sites.

Su Ngoc Khuong, head of investment at Savills Vietnam, noted that investment and M&A activities are mainly carried out by investors from Asian countries, particularly Singapore, South Korea, Malaysia, Japan, Hong Kong and China.

Source: The Saigon Times

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

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

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

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

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

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

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What are Prohibited Acts in Marine Operations in Vietnam?

According to Article 12 of Vietnam Maritime Law, the acts prohibited in marine operations in Vietnam are grouped in activities that negatively impact national security, people, traffic, environment, in particular:

Harm or pose threatened harms to national sovereignty and security.

Carry people, goods, baggage, weapons, radioactive substances, hazardous discarded substances and narcotics in contravention of laws.

Intentionally create obstacles which can pose dangers or obstructions to marine traffic.

Use and operate ships which have not been registered or inspected or exceed the validity duration of registration and inspection; use counterfeit registration and inspection.

Refuse to participate in marine search and rescue activities if practical conditions permit.

Cause environmental pollution.

Infringe upon life, health, honor and dignity of persons aboard ships; embezzle and intentionally damage or ruin property aboard ships; take flight after causing any shipwreck.

Cause the public disorder, impede or react against implementation of duties of law enforcers on board ships and at seaports.

Destroy, damage, disassemble or steal components, parts, raw materials, building materials and equipment of marine construction works.

Damage, destroy and intentionally move or reduce the efficacy of marine signaling systems.

Explode bombs or other explosive materials within the boundaries of a seaport, port water area or navigational channel without authorization granted by competent authorities.

Illegally build and operate seaports and other structures within the planned boundaries of approved seaports, navigational channels and within the protective enclosure of marine structures.

Develop construction projects which may reduce or eliminate effects of marine structures.

Commit abuse of title, position and authority to contravene regulations on port authority; abet and screen persons who commit violations against maritime laws from any punitive measures.

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When Arbitration Could Settle a Dispute in Vietnam?

Under the Law on Commercial Arbitration effective Jan 1st, 2011, and other guidance, in principle, arbitration could only be used in disputes among parties which arise from commercial activities, disputes among parties at least one of whom conducts commercial activities, and other disputes among parties which are stipulated by law to be settled by arbitration in Vietnam. Lawyer should be consulted for arbitration from drafting arbitration agreement to resolving the arisen dispute.

Arbitral tribunals are entitled to resolve the disputes mentioned above if the concerned parties have a valid arbitration agreement agreed, before or after the dispute arise.

When the court is requested to resolve one of the disputes of the above types which a valid arbitration agreement exists, the court shall examine documents enclosed with the petition to determine and if the court finds that the dispute is under an arbitration agreement and such arbitration agreement is valid the court shall issue a decision to terminate the adjudication, return the petition and documents.

The dispute shall be handled by the court though it is under an arbitration agreement, unless otherwise agreed by the parties concerned or prescribed by law: the court issues a decision to annul the arbitral award or the decision made by the arbitral tribunal; or there is a decision to suspend the arbitral tribunal or arbitration center from resolving disputes; or the arbitration agreement is not viable.

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