BUSINESS LINES THAT NEED SUBLICENSE

In the process of establishing, businesses need to conduct the declaration of registered business lines as prescribed by law. For ordinary professions, businesses only need to encode the professions according to the encoding system in accordance with the law.

However, for some conditional business lines, in addition to the declaration in accordance with regulations, enterprises have to fully satisfy the prescribed conditions such as legal capital or business licenses (sublicense).

Moreover, enterprises need to pay attention to some lines of business that require sublicense during the business registration process, which includes:

No	Business line	Name of sublicense	Licensing authority
01	Travel service business	International travel business license	Vietnam National Administration of Tourism
		Domestic travel business license	Department of Culture, Sport and Tourism
02	Hotel business	Decision recognizing the star rating for tourism accommodation facilities	Department of Culture, Sport and Tourism
03	Printing service	Printing operation license	Department of Information and Communication – Department of Publication, Printing and Publishing
04	Real estate business: lease for foreigner	Certificate of fire safety	Chamber/Department of Fire Protection, Province/City Police
		Certificate of social security	District Police
05	Security service business	Certificate of social security	City Police (PC 13)
06	Real estate trading floor	Real estate trading floor operating announcement	Department of Construction
07	Bottled drinking water production	Certificate of food safety	Department of Health or District Department of Health
		Certificate of product standard announcement
08	Food production	Certificate of food safety	Department of Health
		Certificate of product standard
09	Restaurant, eateries and coffee shop business	Certificate of food safety	Department of Health
	Restaurant business	Fire safety inspection record	District Police
10	Informatics/Language Center	Informatics/Language Center Operating License	Department of Education
11	Veterinary medicament business	Certificates of satisfaction of business condition	City Veterinary Department
12	Veterinary medicament production	Veterinary medicament production license	Department of Veterinary
13	Preschool	Preschool Establishment License	Department of Education

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HOW FOREIGN INVESTORS COULD HANDLE INTELLECTUAL PROPERTY DISPUTE IN VIETNAM

Foreign investor could handle intellectual property disputes in Vietnam through negotiation and mediation, arbitration or litigation depending on various factors.

Intellectual property rights is the rights of organizations, individuals to the intellectual property, includingcopyrights and related rights, industrial property rights, including trademark, patent, and industrial design and rights to the plant varieties. Under Vietnam intellectual property law, owners are granted certain exclusive right to the intangible assets. Intellectual property infringement occurs whenever the rights of any type of intellectual property are violated. The intellectual property disputes arise directly from all types of intellectual property as mentioned or commercial transactions and extraction process regarding to types of intellectual property such as license agreement, intellectual property transferring agreement.  Disputes could be settled by different methods, depending on the subjective wills of parties. The parties have right to choose any methods that they deem ideal to protect their interests.

Nowadays, international practice allows parties to choose one of two ways to settle their disputes, including dispute settlement mechanism without litigation (negotiation and mediation) and dispute settlement mechanism with litigation (civil litigation and arbitration). Typically, when disputes occur, parties often choose simplest methods before using other ones. The simplest methods are negotiation and mediation.

Negotiation is a procedure whereby parties work together and reach the solution by expressing their own point of views to the dispute. This method is used for small, non-complex disputes so that parties could be easy to reach a consensus about dispute settlement. Though this method is simple, it is hard for parties to shake their hands together and come to consensus. It is simply because each party always need advantages come to them. Besides, for example, if parties reach the consensus in settling dispute, there is no mechanism to ensure enforcement of dispute solution.

Mediation, different from negotiation, the participation of third party is requested by parties. However, the same thing between negotiation and mediation is that parties are sole those holding right to decide what solutions are applied to settle dispute. Despite the third party only act as intermediary, the mission of third party is really important. The third party helps to connect dispute parties and avoid stronger conflict between them. With experience and skills, they make opportunity for parties exchange information, help them express their standpoints, promote flexible solutions and suggest solution suitable for both of them. Of course, a methodswhich the third party proposes is solely recognized as a reference. In mediation, the information security is highly ensured. Parties are not forced to reveal any information that they want to keep as a secret. Besides, mediation helps parties minimize fees due to simple procedure. Moreover, mediation allows opportunity for parties to work together and reach settlement and typically, parties still keep their business relationship. Last but not least, parties can mediate in any period of dispute settling process. Mediation can be chosen as the first step to come to dispute settling process after each side’s endeavor.

After no result of both side’s endeavor, parties can choose one of the dispute settlement mechanism with litigation to settle dispute. Generally, the proceeding of civil litigation is more complex than the arbitration proceeding. In case one side needs a decision from court so as to end infringement, civil litigation is top priority. In the remaining case, arbitration is a choice with advantages. Arbitration is solely conducted when parties reach consensus that arbitration is a form of dispute resolution. Arbitration agreement must be a term of the core contract or an independent agreement.

Firstly, cost for arbitration is typically cheaper than traditional litigation. Attorney’s fees and expense are minimized in arbitration because arbitration is generally concluded in far less time than cases at court. Secondly, length of dispute settling time in arbitration is shorter than litigation in court because of simple procedure. Court cases generally require more counsel time and, thus, more expenses for preparation and trial than is needed in arbitration. Thirdly, settling dispute by arbitration is effective because of its flexibility. In arbitration, parties have right to choose form of arbitration (Ad hoc or permanent). Moreover, parties can schedule hearings and deadlines to meet their objectives and convenience. This flexibility allows parties save money, time and partially promote dispute settling process to be faster. Fourthly, arbitration is a secret proceeding. The decision is public, but the trial is close. This feature of arbitration is a big advantage for dispute involving trade secret or patent. Lastly, arbitration council’s decision is final. It means that contrary to decision of court, most of arbitration council’s decisions cannot be appealed. Chance for canceling arbitration’s decisions is not much, primarily because of basic mistakes about procedures.

Dispute settling method in arbitration is suitable for most of intellectual property disputes because this method meets the featured requirements of intellectual property dispute (multinational, information security, complexity). Mediation and arbitration can combine together in settling dispute. Firstly, dispute is settled by mediation. Then, in case if parties do not reach settlement in mediation, dispute will be settled by arbitration council. The advantage of this combination is that it promotes parties propose goodwill engagement in mediation and after that, will create more advantages for dispute resolution in arbitration.

To summarize, when facing a dispute relating to intellectual property right, foreign investor can handle out dispute through judging exactly about scale of dispute, financial capability, dispute settling time, level of information security because intellectual property is worthy assets that can impact development as well as existence of enterprises.

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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.

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CRIMINAL RECORD GRANTING FOR FOREIGNER

In order to be granted the work permit for foreigner, completing the immigration or reside procedures in a country, foreigners who are or have been residing in Vietnam must apply for a criminal record for the time that they residing in Vietnam.

Foreigners who are or have been temporarily residing in Vietnam have the right to request the Department of Justice of the province or city where they are residing or the National Centre for Criminal Record to issue the criminal record, in order to confirm that people have or do not have criminal records while residing in Vietnam. The person requesting for criminal record card can authorize another person on their behalf to complete procedures to obtain the criminal record.

ANT Lawyers can assist clients to apply for: Criminal record card no 1 and Criminal record card no 2

Individual when requesting for criminal record issuance have to provide the following documents:

• For Vietnamese:

– A written declaration requesting for the issuance of criminal record;

– Certified copy of identity card, passport, family record book, temporary residence book, temporary residence card, permanent resident card in Vietnam (should present the original for comparison);

– Confirmation of permanent residence in Vietnam before leaving the country (applies to Vietnamese who are living in foreign countries).

• For Foreigner:

– A written declaration requesting for the issuance of criminal record;

– Copy of the passport and visa that are still valid;

– Confirmation of temporary residence in Vietnam.

Implementation time: 3-7 working days.

Please contact ANT Lawyers for advice.

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HOW FOREIGNERS COULD MARRY VIETNAMESE WIFE

When a foreigner marrying a Vietnamese, this is cross cultural marriage with challenges and complexity in relationships which could be legally difficult.  The Vietnam laws on Marriage and Family on marriage and family relations involving foreign elements provide legal grounds to avoid false marriages to gain citizenship or conduct human trafficking.

The following should be taken into consideration when a foreigner marrying a Vietnamese. However due to the complexity, it is suggested family lawyers in Vietam to be consulted to ensure the correct processes and procedures are carried out in timely manner:

1.Marriage consultation:

If marriage registration between a foreigner and a Vietnamese belongs one of the following cases, Vietnamese citizen must be consulted by the provincial Marriage Consultancy Center: i) the age gap between two partners is 20 years or more; ii) this is the third marriage of the foreign partner, or the foreign partner has gone through a divorce with a Vietnamese citizen; iii) the partners do not completely understand about the families and backgrounds of each other; about the languages, traditions, customs, cultures, and laws on marriage and families of each other’s country.

After being advised on marriage consultation, Vietnamese citizen will be issued a certificate by Marriage Consultancy Center (hereafter referred to as Certificate) which is part of the application dossier.

When the Vietnamese citizens is fluent in a foreign language or foreigner is fluent in Vietnamese, and  the interviews at the Justice Department show that both sides have an good understanding of family circumstances, personal situation, and the understanding of language, customs, traditions, culture, laws on marriage and family in each country, the Certificate will not be needed.

2.Submission for marriage registration

One of two parties would submit directly to provincial Department of Justice of province where the Vietnamese citizen applicant resides.  A dossier of marriage registration is prepared including the following papers of each party:

a) The marriage registration declaration (standard form);

b) The papers of marriage status of each party:

Vietnamese shall provide the written certification of marital status issued by the People’s Committee where he/she resides.

Foreigner shall provide the documentary evidence on marital status of foreigners  issued by a competent agency of the country of which the applicant is a citizen.  In cases where foreign laws do not prescribe the certification of marriage status, it can be replaced by the certification of oath taken by the applicant that he or she concurrently has no wife or husband, in accordance with the laws of those countries; the written certificate of marriage eligibility issued by a competent agency of the country of which the applicant is a citizen (unless laws of this country do not regulate about this document); for foreigners who have already been divorced with Vietnamese citizens at foreign competent agencies, they must submit the written confirmation that the divorce which carried out abroad have been recorded in civil status book as prescribed by law of Vietnam.

c) The medical examination from a Vietnamese or foreign competent health organization, certifying that such person does not suffer from mental diseases or other diseases which make a person incapable to aware or control his/her acts;

d) Copies of personal papers, such as identity card or passport, passport or papers of substitute value such as travel document or residence card;

e) Copies of the household registration book, the temporary residence book (for Vietnamese citizens living in the country); permanent residence card, temporary residence card or temporary residence certificate (for foreigners residing temporarily or permanently in Vietnam).

f) Certificate of Marriage Consultancy Center on marriage to a foreigner that Vietnamese citizens have been given advice for marriage in compulsory cases mentioned above.

All documents provide by parties have to have valuation within 6 months to the date when the dossier is received.

3. Interviews for marriage registration to a foreigner in Vietnam

Within 15 days as from the date of receiving the complete and valid dossiers as well as fees, the provincial Department of Justice shall have the responsibilities to implement the direct interview at head office for both marriage partners in order to check, clarify personal matter, voluntary marriage and extent of understanding each other of both marriage partners.

If the interview result shows that two parties fail to understand status of each other, the provincial Department of Justice shall make an appointment for re-interview; the next interview shall be performed 30 days after the preceding interview.

In cases there are issues which need to be verified, the provincial Department of Justice dshall carry out necessary procedures to verify.

4. Certificate of marriage registration in Vietnam

After interviewing both marriage partners, studying and verifying the marriage registration dossiers, opinions of police agencies (if any), the provincial Department of Justice shall report result and propose settlement of marriage registration to submit to provincial People’s Committees for decision, enclosed with 01 set of marriage registration dossier.

Within 05 working days, after receiving the written submission of the provincial justice department together with the marriage registration dossier, the chairman of the provincial People’s Committee shall sign in the certificate of marriage and return dossier to the provincial Department of Justice for holding the ceremony for marriage registration.

In case refusal for marriage registration, provincial People’s Committees shall have a document clearly stating reasons thereof and send it to the provincial Department of Justice in order to notify both marriage partners.

5. Ceremonies for marriage registration in Vietnam

Within 05 working days, after the Chairman of the provincial People’s Committee signs the marriage certificate, the provincial Department of Justice shall hold ceremony for marriage registration.

The marriage registration ceremony shall be solemnly organized at the office of the provincial Department of Justice. When the marriage registration ceremony is held, both marriage partners must be present. The representative of the provincial Department of Justice shall preside over the ceremony, requesting both parties to state their final intention on voluntary marriage. If they agree to marry each other, the representative of the Department of Justice shall record the marriage in the marriage registers, requesting each party to sign on the marriage certificate, the marriage register and hand over the original marriage certificate to the husbands and wives, each with one certificate.

The marriage certificate shall be valid from the date the marriage registration ceremony is organized as provided. The grant of copies of the marriage certificate from the original registers shall be implemented by the provincial Department of Justice at the requests of the wives or husbands

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DISPUTE SETTLEMENT IN INTERNATIONAL TRADE

In international trade, when drafting international contracts, the parties usually focus on the terms of payment and expense but little attention to terms of dispute settlement. Thus, the parties should be aware that the disagreements and disputes can arise at any time. Therefore, in the process of concluding an international economic agreement, the parties should note the provisions on the selection methods of dispute settlement if a dispute occurs. Currently, there are 4 dispute resolution methods in international trade as follows: negotiation, mediation, commercial arbitration and court.

• Negotiation

Negotiation is a settlement method which is usually applied in international dispute settlement. In particular, the parties discuss together, struggle, compromise and agree to settle the dispute. The result of the negotiation is that the dispute could be resolve or not. Negotiation is conducted in two ways: The two parties directly meet each other to discuss and deal or one party submit complaint to the other party and the other party answers the complaint.

• Mediation

Mediation is the method of resolving dispute between the parties through the role of a third party. Mediation can be accomplished by two ways: One is that the parties agree with each other about mediation, the mediator will be designated and conduct the mediation without following any rules of mediation. The second way is that the parties agree to conduct the mediation under rules of a professional organization or one specific arbitration institution, such as mediation rules of the International Chamber of Commerce (ICC).

• Commercial arbitration.

Arbitration is a method of dispute settlement arising in trade activities that are agreed between the parties and carried out according to the order and proceedings. Presently, there are kinds of arbitration such as: ad hoc arbitration and permanent arbitration.

• Court.

The 3 dispute settlement methods above are voluntary in nature. They are different from the dispute settlement in accordance with judicial procedures at court. The settlement of dispute by court is to resolve dispute through the activities of the State tribunals. Therefore, litigants in the dispute are often considered as a final solution to protect their legitimate interests. Especially, when there is a conflict, the parties will choose the form of trade negotiation or mediation rather than commercial arbitration or court.

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