What is Statue of Limitation for Initiating Legal Action According to Arbitral Procedures?

Arbitration law always set the the limitation period for request of dispute resolution. This means that the law applies a specific period for parties to bring the dispute to the arbitration. According to law on arbitration 2010 (“LOA”), unless otherwise provided by specialized law, limitation period for initiating legal action according to arbitral procedures is two years from the time of infringement of lawful rights and interests.

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There is no regulation in arbitration law regarding consequence of expiration of limitation period, but Civil Code 2015 (“CC”) stipulates that: “if such time limits expire, the right to initiate such legal action shall be lost”. Arbitration council shall not resolve expired requests, which means council shall not judge which parties is right or wrong. Therefore, enterprise needs to request within the statutory time limits in order to be resolved. If not, the request shall not be considered although there was request and related fees. In addition, it should be noted that the Court only applies time limits regulation at the request of a party or the parties provided that such request is filed before the first trial court of first instance makes a judgment, a decision on settlement.

However, there has been cases of non-applicability of limitation periods. Specifically, a limitation period for initiating legal action for a civil case shall not apply in any of the following cases: (i) Request for the protection of personal rights not associated with property; (ii) Request for the protection of ownership rights, unless otherwise provided by Civil Code or relevant laws; (iii) Dispute over land use right as prescribed in the Law on land; (iv) Other cases as provided by law. For instance, dispute over reclaiming deposited property is under case of non-applicability of limitation periods. Specifically, deposited property still belongs to ownership of depositor although the property had been transferred to depositary and reclaiming property is a measure protecting the right of property ownership, while dispute over the protection of ownership rights is under case of non-applicability of limitation periods.

In practice, the time between the time period of filing a lawsuit and the time period of infringement of lawful rights and interests can be longer than two years if there is time periods excluded from limitation periods for initiating legal action or there is re-commencement of limitation period for initiating legal action.

The time period during which one of the following events occurs shall be excluded from limitation periods for initiating legal action: (i) An event of force majeure or other objective hindrance which renders the person with the right to initiate legal action for a civil case or make the request not able to do so within the limitation period; (ii) The person with the right to initiate legal action for a civil case or to make the request is a minor or a legally incapacitated person, a person with limited cognition and behavior control or a person with limited legal capacity, and does not yet have a representative; (iii) The representative of a minor or a legally incapacitated person, a person with limited cognition and behavior control or a person with limited legal capacity has not yet been replaced in case that the representative being natural person dies or the representative being juridical person ceases to exist or in case that the representative, for good reasons, cannot continue his/her representation.

The limitation period for initiating legal action shall re-commence in any of the following cases: (i) The obligor has acknowledged part or all of its obligations to the plaintiff; (ii) The obligor has acknowledged or fulfilled part of its obligations to the plaintiff; (iii) The parties have become reconciled. The limitation period for initiating legal action for a civil case shall re-commence from the date following the date on which the above event occurs. Having said that, it is important to consult with dispute lawyers in Vietnam for the effective dispute resolutions should dispute arise.

ANT Lawyers in an arbitration law firm in Vietnam, recognized by Legal500, IFLR1000. We are an exclusive Vietnam member of Prea Legal, the global law firm network covering more than 150 jurisdictions. The firm provides a range of legal services to multinational and domestic clients. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.      

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Divorce Procedures Involving Foreign Elements in Vietnam

How Divorce Procedures Involving Foreign Elements in Vietnam Are Regulated?

The procedure for divorce in Vietnam involving foreign elements is one of the complicated procedures. Therefore, when implementing this procedures, the parties need to pay attention to the related legal provisions to avoid problems when conducting the divorce procedure in Vietnam or involve family lawyers for assistance in preparing documents and filing petition, especially if there are potential dispute in custody or common assets, properties division.

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Divorce involving foreign elements means termination of the husband and wife relation under a court’s legally effective judgment or decision, in which at least one partner is a foreigner or an overseas Vietnamese or in which partners are Vietnamese citizens but the bases for terminating that relation are governed by a foreign law, or that relation arises abroad or the property related to that relation is located abroad, according to the interpretation on “divorce” and “Marriage and family relation involving foreign elements” of Law on Marriage and family 2014.

The parties when implementing this procedure need to ensure that s/he has the right to request a divorce as prescribed in Article 51 of the Law on Marriage and family 2014. Specifically, the subject of the divorce procedure must be the wife or the husband, or the legal guardian of s/he in the case s/he lost the civil act capacity. The husband has no right to request a divorce when his wife is pregnant, gives birth or is nursing an under-12-month child.

The divorce between a Vietnamese citizen and a foreigner or between two foreigners permanently residing in Vietnam shall be settled at a competent Vietnamese agency.  In case a partner being a Vietnamese citizen does not permanently reside in Vietnam at the time of request for divorce, the divorce shall be settled in accordance with the law of the country where the husband and wife permanently co-reside; if they do not have a place of permanent co-residence, the Vietnamese law shall apply.

The Court in Vietnam has the jurisdiction to settle the divorce request. More specifically, the People’s Court of province have the jurisdiction to settle the case in which involve parties or properties in foreign countries or which must be judicially entrusted to representative agencies of the Socialist Republic of Vietnam overseas or to foreign courts.

The Court will settle the case according to the procedure on code of civil in Vietnam. The time to settle the case will be based on the details of the case. The time limit for trial preparation is from 04 to 06 months from the date the Court accepts the case. The time to set up the court is from 01 to 02 months from the date on which the decision to bring the case to trial is issued. The marriage relationship will terminate from the date the Court has the valid divorce decision.

Besides, the dossier on divorce involving foreign elements including the documents related to marriage relationship, the identification and the documents related to the property, children according to the regulations on Law on Marriage and family 2014 and Code of Civil procedure 2015. In detail, the dossier includes the petition for divorce, the copy of Identification or other personal documents (Passport, Identification card); the copy of Household book, the original of Marriage certificate, in case the parties lost the original of Marriage certificate, the parties could provide the copy of Marriage certificate with the confirmation of competent authority and need to show this information in the petition for divorce, the copy of the birth certificate of the child/children (if having the common child/children); the copies of the documents on the ownership of the property (if increasing the dispute).

In addition, when submitting the dossier on requiring to settle the divorce case: (i) if the parties got married in Vietnam, then the spouse exits abroad (and s/he could not find the address of the spouse), s/he needs to have the confirmation of the competent authority that the spouse existed; (ii) if the parties got married under foreign law wish to divorce in Vietnam, they need to implement the procedure on legalization the Marriage certificate, other related documents, and note in the register book of Department of Justice, then submit the divorce petition. In the case the parties did not implement the procedure on note in the register book but they still wish to divorce in Vietnam, they need to show the reason why they did not make the marriage note.

The person whom submit the divorce petition will submit the dossier to the People’s Court of Province where one of the parties are residing in Vietnam. The Court will check the dossier, if valid, the Court will issue the notification on paying the court fee. After the court fee is paid, the Court will accept the divorce case and issue the notification on acceptance the case to Procuracy, and defendant (the involved parties). Many Courts in Vietnam require the parties to implement the reconciliation step.

It is suggested to involve divorce dispute lawyers in Vietnam if the case of divorce would turns out to be complicated when there are disputes on custody and assets or property division.

      

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How Probation is Regulated in Vietnam Labour Code?

How Probation is Regulated in Vietnam Labour Code?

Probation is an agreement between an employee and an employer on a probationary job in a certain period of time in accordance with the provisions of law. Before entering into a labor contract, the employer and the employee should go through a probationary period to determine the long-term cooperation and attachment between the parties. The probation should comply with the provisions of the Labor Code and relevant guiding documents. The Labor Code 2019 comes into force as of January 1^st, 2020, a number of new regulations accordingly are issued in connection to the probation, which each company should review the matter with its labour dispute lawyers in Vietnam for compliance.

 

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Regarding the circumstances which are permitted to enter into a probationary contract, this contract is not applicable to the labor term which is below 01 month.  The Labor Code 2012 does not require that the probationary provision must be stipulated in the labor contract. Accordingly, an employer and an employee may negotiate on the probation, the rights and responsibilities of the parties during the probation period. The parties may conclude a probation contract if there is an agreement on the probation. If the probation work meets the requirements, the employer shall conclude an employment contract with the employee. From these provisions, it can be understood that the employee and the employer should make a separate probationary contract. The labor contract should be signed when the probation is completed and the employee meets the recruitment requirements of the employer. According to the latest provisions in the Labor Code 2019, the employer and the employee may agree on the probation stated in the labor contract or a separate probationary contract. If the probationary provision is stipulated in the labor contract, the employer shall continue performing the existing labor contract at the end of the probationary period once the employee satisfies the requirements. Otherwise, a new labor contract shall be entered into.

The Labor Code determined the restriction of the probation period based on the nature and complexity of the job. The probationary period previously was limited to no more than 60 days for jobs requiring a college or higher professional qualification. Currently, the probationary period is permitted to extend up to 180 days for the executives. The executives play an important role in business and operation of the enterprises, including owner of a sole proprietorship, a partner of a partnership company, chairperson or member of the Board of Member, President of a company, President or member of the Board of Directors, Director/General Director, or holder of another managerial position prescribed in the company’s charter (applicable to the enterprise with no state capital)

Another amendment to the cancellation of the probationary contract, the Labor Code 2019 removed the limitation of the right to cancel. Accordingly, during the probationary period, each party has the right to cancel the probationary contract or labor contract entered into without prior notice and compensation. On the contrary, the employee and the employer may cancel the probation if the probationary job does not meet the requirements that the parties have agreed upon under the Labor Code 2012

Probationary periods are primarily designed to test out whether both employer and employee to match each other at the start of an employment relationship. The enterprises as employers need to have a clear understanding of the principles of entering into a labor contract as well as a probationary contract to avoid potential dispute in Vietnam.

ANT Lawyers is a law firm in Vietnam, recognized by Legal500, IFLR1000. We are an exclusive Vietnam member of Prea Legal, the global law firm network covering more than 150 jurisdictions. The firm provides a range of legal services to multinational and domestic clients.       

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How to Apply Exemption from Anti-dumping Measures for Polyester Long Fiber Products

On October 19^th, 2021 the Trade Remedies Authority of Vietnam issued Announcement No. 23/TB-PVTM on receiving application for exemption from application of trade remedies for a number of polyester long fiber products (Case No. AD10).

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On October 13^th, 2021, the Minister of Industry and Trade issued Decision No.2302/QD-BCT on applying the official anti-dumping measures on long fiber products made from polyester originating from the People’s Republic of China, the Republic of India, the Republic of Indonesia (Case No. AD10).

For the basis for considering the exemption request (with restrictions on the volume, quantity of exempted goods, exempted purpose) of the above products, the Trade Protection Department requests the relevant parties that application of trade remedies for a number of polyester long fiber products, contact the Trade Protection Department and provide information:

The scope of the information:

(i) The company’s ability to manufacture and supply the products requested for exemption from the domestic company. If it has been manufactured or supplied, please provide detailed information on design capacity, contract and sales invoice of each group of products requested for exemption;

(ii) Opinions and views on the exemption for each of the above product groups.

The products under comments:

First product:

Product: Synthetic filament yarn (combined nylon and polyester yarn) having details as follow:

-Physical characteristics: The yarn cross-section is not uniform due to the fact that it is composed of two different fibers.

-Composition: Combination of polyamide fiber (nylon fiber) (10-30%) and polyester fiber (70-90%).

-Yarn size: 160D/72F; 320D/144F; 75D/36F

-Manufacturing process: Melt polyester yarn at 2600C and polyamide yarn (nylon yarn) at 2200C and then let these two yarns flow through a combination system to form a long yarn composed of polyamide yarn and polyester interlaced yarn interlaced with each other.

-Synthetic filament yarn holding the HS code: 5402.33.00, 5402.46.00, 5402.47.00

Second product:

Product: Synthetic Filament yarn used to produce zippers, includes 03 specific yarn groups as follows: HSY yarn, HTY yarn and HSD yarn having details as follow:

-Physical characteristics:

Shrinkage rate: HTY, HSY yarn: 16% at boiled and 5.5% at dried; HSD yarn: 12% at boiled and 11% at dried

-Yarn size:

100D: PF HTY T1 INA 6K; PF HTY T1 INA-2 6K;

150D: 150/48*2 GPOASY (recycle); DTY 150D/48F/2 SDR (recycle); PF HSY T1 INA; PF HTY T1 INA

250D: PF HTY TL INA; PF HTY TL INA-2;

300D: PTY SD T1 ABR; PTY SD T1 MBR; PTY SD T1 MBR HSD; PTY SD T1 MBR2 HSD; PF HTY T1 INA; PF HTY T1 INA-2

450D: PTY SD TL MBR;

500D: PF HTY T1 INA; PF HSY T1 INA; PF HSY T1 INA-2; PF HTY T1 INA-2

The period of comment:

The information will be sent to Trade Protection Department before December 20^th, 2021.

If Client needs any more information or request for legal advice or potential dispute regarding trade remedies measures including, anti-dumping, countervailing duty and safeguard measures or international trade dispute matters, our competition, anti-dumping, and countervailing duty lawyers in Vietnam of International trade and tax practice at ANT Lawyers, a law firm in Vietnam always follow up anti-dumping cases and its development to update clients on regular basis.

      

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Extend the Response Time to Apply Anti-dumping Measures on H-shaped Steel Products From China

On October 29th, 2021, Department of Trade Remedies issued the Investigation Questionnaire on the review and application of anti-dumping measures on H-shaped steel products originated from China for the relevant parties in the case ER01.AD03.

 

Extend the Response Time to Apply Anti-dumping Measures on H-shaped Steel Products From China

For facilitating conditions for relevant parties to fully cooperate in the case, the Investigating Authority extends the time to response the questionnaire for relevant parties. After the extension period, if the Investigating Authority does not receive timely responses from the relevant parties or the information provided is incorrect or incomplete, the Investigating Authority will use information and documents provided by related parties, the information and documents collected by the Investigating Authority or available information and documents for calculation and evaluation according to the regulation of Law on Foreign trade management.

The relevant parties must respond to the Investigation Authority before 17:00 December 20th, 2021 (Hanoi time).

The information, data provided in the Questionnaire of the Investigation Authority and the right to access the information of the case during the investigating term will be implemented in the regulations of the laws.

If Client needs any more information or request for legal advice or potential dispute regarding trade remedies measures including, anti-dumping, countervailing duty and safeguard measures or international trade dispute matters, our competition, anti-dumping, and countervailing duty lawyers in Vietnam of International trade and tax practice at ANT Lawyers, a law firm in Vietnam always follow up anti-dumping cases and its development to update clients on regular basis.       

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Plan to Simplify Regulations on Telecom, Gaming, Internet Service

In the process of economic integration and development, in order to create favorable conditions for business and service sectors under the management of the Ministry of Information and Communications, Vietnam has approved the plan to reduce and simplify regulations a number of regulations under its control.

Plan to Simplify Regulations on Telecom, Gaming, Internet Service

Accordingly, Decision No. 1994/QD-TTg agreed to reduce and simplify regulations related to business lines: Provision of pay radio and television services; Provide G1, G2, G3, G4 video games online; Newspapers; Telecommunications service business; publisher’s activities; Business in printing services, except for packaging printing; Publishing services business; Postal services; Information Technology; Science and technology; Domain name registration and maintenance services; Internet; Network information security products and services in Vietnam.  It is important for the company operating in the areas of concern to consult with telecom, internet business, media lawyers to follow up with specific changes in law in Vietnam.

These are industries with fast-growing trends and have a strong impact on other industries as well as on the overall economic development. Therefore, the facilitation and restriction of procedures will contribute to attracting foreign investment and creating development motivation for businesses, quickly catching up with the rapid changes of services, improving the quality of services and improving the quality of services information and communication products.

Accordingly, on procedures for granting certificates of eligibility to provide public electronic game services, for the application components “Plan for the location of the computer room of the public video game service point suitable according to the prescribed area” and “Pay the fee for the issuance of the Certificate of eligibility to operate the point of supply providing public video game services” were abolished. Especially, it is subject to change immediately after the time of licensing. Therefore, the information of the location of the machine room option at the time of consideration for licensing is of little significance. Besides, the Decision also mentions supplementing the form of implementing administrative procedures on electronic means (changing the form of paper copies into electronic ones) to be flexible and ensure consistency with the Enterprise Law 2020 in the implementation for businesses.

The decision also abolishes administrative procedures for granting licenses to provide G1, G2, G3, G4 video game services online. According to the plan, many procedures with G1 online game service will be abolished such as: licensing procedures; license re-issuance; license renewal or procedures for amending and supplementing the license to provide G1 video game services on the internet… This is a meaningful abolition decision for the practice of licensing video games. Because, it is challenging for state agencies to request enterprises to apply for permits and report every time they change their business plans, affecting the autonomy of enterprises as well as creating huge inadequacies in terms of business administrative procedures.

In addition, business conditions: “The publisher’s office has an appropriate area, meets the provisions of the law on standards and norms for using the office” has been simplified to ” having an office that meets the provisions of law on standards and norms for using the office”. This change is reasonable, because the criterion of suitable area has no basis for explanation. Moreover, the area of​​the publisher’s headquarters is not related to the management of the State. With the new regulations, publishers can be autonomous in choosing the right area, ensuring space for business activities. At the same time, the Decision also combines two administrative procedures including re-issuance and renewal of licenses for printing and publishing publications into one administrative procedure, limiting cumbersome procedures, saving time and costs for businesses.

In addition, in the field of publication distribution service business, the Decision simplifies the process of granting certificates of registration for publishing and publishing electronic publications in the direction of only performing the verification process determining the project of publishing and distributing electronic publications. Therefore, if the project is eligible and accepted, the enterprise will be granted a certificate of operation registration immediately.

According to the simplified version of the Decision, the Postal Business Registration Certificate and the Postal Investment Certificate in Vietnam will be merged into the Business Registration Certificate.

Therefore, the introduction of Decision No. 1994/QD-TTg has reduced and simplified procedures; help the process of preparing documents quickly; save time for organizations and individuals when carrying out administrative procedures and minimize the cost of administrative compliance.

ANT Lawyers – A Law Firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.         

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Renew expired visas for foreighers during the Covid-19 period

Visa is a certificate issued by a competent Vietnamese state agency, allowing foreigners to enter Vietnam for immigration for a certain period of time depending on specific case. To be granted a visa, a foreigner must meet the conditions specified in the Law on Entry, Exit, Transit and Residence of Foreigners in Vietnam 2014, such as: having a passport or valid international travel document, being invited or sponsored by agencies, organizations and individuals in Vietnam unless otherwise provided for by law and not in the cases where entry is not allowed. In some special cases, to be granted a visa, foreigners will have to present documents proving the purpose of entry. When the visa is about to expire, foreigners can apply for a new visa for immigration into Vietnam.

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In order to be issued a new visa, the foreigners need to prepare the following documents: application form for visa issuance; papers on the foreigners need to fully guarantee (if any); valid passport, other necessary proofs related to the purpose of entry and residence. After fully preparing the above documents, the foreigner shall submit the application at working offices of the Immigration Department – the Ministry of Public Security. The immigration officer receiving the dossier will check the dossier. If it is complete and valid, then he or she will receive the application and hand over the receipt, schedule a date to return the results. If the dossier is not valid, the dossier-receiving officer shall guide the submitter to supplement the dossier for completeness.

The result would be available within 05 days from the date of receipt of complete dossiers.  The person who comes to receive the result shall present the receipt, identity card or passport to the officer to check and compare, pay the fee and sign for receipt.

However, during the period of complicated developments of the Covid-19 epidemic, the Prime Minister and leaders of the Ministry of Public Security issued instructions on the implementation of “automatic extension of temporary residence” for foreigners affected by the Covid-19 epidemic. Accordingly, foreigners entering under the visa exemption category, entering with an electronic visa or a tourist visa from March 1, 2020 until now, will continue to have their temporary residence extended until the end of August 31, 2021 and can leave the country within the above time limit without having to carry out procedures for extension of temporary residence.

In case a foreigner who entered the country before March 1, 2020 if he/she can prove that he is trapped due to Covid-19, being certified by the diplomatic mission or has a written confirmation from the competent authority of Vietnam about the isolation and treatment of Covid-19 or other force majeure reasons, is also considered to apply “automatic extension of temporary residence” until the end of August 31, 2021.

ANT Lawyers – A Law Firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.        

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