International Law Firm in Vietnam

ANT Lawyers is Vietnam exclusive member of Prae Legal, an international law firm network, providing full ranges of legal services

Prae Legal Network provides clients with access to global legal resources through its vast network of well-established 242 law offices in trade centers in 129 countries.

Our respectable and influential professionals are experienced in all fields of law. We are ready to provide legal solutions to companies and people all around the world for their legal needs. We can help when you would do business transactions in the most challenging parts of the world.

Prae Legal provides comprehensive legal expertise in almost all major practice and industry areas. We have general and subject specific legal expertise that could be applied to different needs of each industry. An industry will be interested in legal developments affecting its own business and legal environment.

International Law firm in Vietnam

Together with global law firm partners, ANT Lawyers has the capability to provide in depth legal assistance in the following practice areas:

 

Together with global law firm partners, ANT Lawyers has the capability to provide in depth legal assistance in the following practice areas:

·        Agricultural & Agribusiness

·        Antitrust, Competition and Trade Group

·        Automotive

·        Aviation

·        Banking and Financial Services

·        Business Crimes and Compliance

·        Capital Markets

·        Construction and Infrastructure

·        Corporate Organizations and Securities

·        Employee Benefits and Pensions

·        Employment and Labor Law

·        Energy and Natural Resources

·        Environmental

·        Government Affairs

·        Health Care Industries

·        Immigration

·        Insolvency, Bankruptcy and Restructuring

·        Insurance and Reinsurance

·        Intellectual Property

·        Life Sciences

·        Litigation, Arbitration and Dispute Resolution

·        Media, Entertainment and Sports

·        Mergers and Acquisitions

·        Private Equity

·        Project Finance

·        Real Estate

·        Tax

·        Technology, Outsourcing and Privacy

·        Telecommunications

·        Products Liability and Toxic Tort

·        Trademarks, Copyrights, Trade Secrets and Unfair Competition

·        Product Liability and Product Safety

·        Cross-Border Transactions

·        E-Commerce & Technology

·        Product Liability and Product Safety

 

ANT Lawyers – a Law firm inVietnam 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 serive request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

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Investigation of Imposing Anti-dumping and Countervailing Measure to some sugar cane products from Thailand (AD13)

On September 21^st 2020, Minister of Ministry of Industry and Trade signed the Decision No. 2466/QD-BCT regarding the Investigation ofimposing Anti-dumping and Countervailing measure to some sugar cane products from Thailand. Related parties may by themselves or authorize to experienced law firm in Vietnam on international trade to work with Trade Remedies Authority of Vietnam (TRAV) to cooperate and response.

1.Background

On August 08, 2020, Trade Remedies of authority of Vietnam (TRAV), Ministry of Industry and Trade received the dossiers on requesting the anti-dumping measure to some sugar cane from Thailand. The requester is 6 Companies representing for domestic industry being (i) Son La Sugar Joint Stock Company; (ii) Son Duong Sugar and Sugarcane Joint Stock Company; (iii) KCP Viet Nam Industries Limited; (iv) Can Tho sugar Joint stock Company; (v) The 333 Sugar Joint Stock Company; (vi) Soc Trang Sugar Corporation.

The requester provided the reasonable bases for calculation of dumping margin and acts of countervailing originated from Thailand. The requester provided the reasonable information to prove the significant damage of domestic industry. The requester’s dossier proved the existence of causal relationship between imported products and the significant damage of domestic industry.

Hence, TRAV determined dossier of the requester satisfied the law of anti-dumping, countervailing and petition of Minister of Ministry of Industry and Trade.

2.Investigation’s details

i) Products under investigation

Product’s name: Sugar cane

Scientific name: Sacarose sugar (sucrose)

Common name: include but not limited to sanding sugar, sugar cane, crystal sugar, raw sugar, white sugar, refined sugar.

Sugar cane products are classified under the following HS code: 1701.1300, 1701.1400, 1701.9910.

The Ministry of Industry and Trade may amend and supplement the list of HS codes of the product under investigation to be in accordance with the description of the product under investigation and other changes (if any).

ii) Originated of products under investigation: Thailand

iii) Period of investigation (POI)

-Period of investigation to determine the anti-dumping and countervailing action: from July 1^st 2019 to June 30^th 2020

-Period of investigation to determine the damage of domestic industry:

The first year: from July 1^st 2017 to June 30^th 2018

The second year: from July 1^st 2017 to June 30^th 2019

The third year: from July 1^st 2017 to June 30^th 2020

iv) Duty Levels Proposed by Requester:

The anti-dumping duty which is requested by the requester is 37,9%.

3.Register as related parties

Pursuant to Article 6 of Circular No. 37/2019/TT-BCT, organizations and individuals stipulated in Article 74 of Law on foreign trade management may register as related parties in this case with TRAV in order to access to publicly circulated information during the investigation process, send comments, information and evidence related to the investigation content within sixty (60) working days from the day on which the decision on investigation takes effect via post or email.

In order to ensure rights and interests, the investigating authority recommend that organizations and individuals which produce, import or use products under investigation register as related parties to carry out the right to access information, provide information and express opinions during the investigation process.

4.Investigation Questionnaire

Within 15 days after the issuance of the investigation decision of the Minister of Industry and Trade, the Investigating Authority shall send the investigation questionnaire to the Related Parties, including:

-The applicant requests for application of Anti-dumping and Countervailing measures;

-Other domestic manufacturers which Investigating Authority knows;

-Parties requesting for application investigation of anti-dumping and countervailing measures which Investigating Authority knows;

-Importers of products under investigation;

-Diplomatic authorities of the country where the origin of products under investigation;

-Other related

5.Cooperating in the investigation process

Any related party refuses to participate in the case or does not provide necessary evidences or significantly ​obstructs the completion of the investigation, the investigation conclusion regarding such relevant party shall be based on available information.

Any related party provides false or misleading evidences, such evidences shall not be reviewed and investigation conclusion regarding such relevant party shall be based on available information.

TRAV recommends that related party participate and cooperate fully in the process in order to ensure legitimate rights and interests and avoid potential disputes.

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What Need to Know About Dispute between Foreign Investor and Host State?

 

In the globalization and international integration in general as well as economic integration in particular, foreign investment including foreign direct investment (FDI) and indirect foreign investment in countries ảe increasing significant. This trend also comes along with the growth of international investment dispute between foreign investor and host state (or related state agencies). This dispute is often complex with huge amount of compensation demanded by the investor.

Subjects of this dispute include foreign investor (plaintiff) and host state or related state agencies (defendant). In particular, Vietnam laws stipulate that foreign investor means an individual holding a foreign nationality or an organization established under foreign laws an making business investment in Vietnam. The second subject is state, a “special” subject because this subject is the beneficiary of “jurisdictional immunity”. Specifically, jurisdictional immunity is a right of a state which do not be judged by any international or national jurisdiction without the consent of such state.

This dispute shall relate to the investment of foreign investor in host state according to regulation of (i) investment law of host state; (ii) treaty of promotion and protection of investment (bilateral investment treaty - BIT) or investment chapter in bilateral/regional trade agreements; or (iii) contract relating to investment of foreign investor and competent state agencies. 

To promote foreign investment and to protect investors, countries around the world as well as Vietnam have signed and will sign bilateral agreements on promotion and protection of investment (BIT), agreement between countries on promotion and protection of investment (international investment agreement – IIA), free trade agreement (FTA) having investment chapter. Accordingly, investor holding the nationality of a signatory to investment agreement (chapter) is entitled to have full protection and security, fair and equitable treatment, non-discrimination, no expropriation... of investment according to regulation of such investment agreement (chapter) in host state. Besides, to ensure that dispute between foreign investor and host state will be fairly and properly settled and to prevent the case of refering to jurisdictional immunity to avoid being sued, there are provisions on dispute settlement mechanisms between foreign investor and host state in most of these agreements.

Through investment agreement (chapter), the host state abandons its right of jurisdictional immunity to be sued and judged at competent jurisdiction. If the host state violates and harms the foreign investor, such country shall compensate according to judgement of that jurisdiction. Jurisdictions being competent to resolve disputes between foreign investor and host state may be arbitration, court of the host state; international arbitration; or other jurisdictions by agreement between the parties. 

Behaviours which state violates commitment on investment protection may be very broad, including: (i) expropriation such as: requisition or nationalization without compensation; “indirect” requisition or “according to regulation” without reasonable compensation; (ii) no fair and equitable treatment; (iii) no full protection and security; (iv) there is discrimination such as violation of most favoured nation and national treatment; (v) and/or other violations such as: legal obligation/commitment, right of withdrawing investment and interest, compensation due to war or riot.

Dispute resolution process between foreign investor and host state usually takes place with three stages, including (i) conflict management stage means carrying out resolving complaints and consultation, mediation; (ii) dispute resolution stage; and (iii) implementation stage. In above process, consulting with international dispute lawyers in Vietnam to for resolution of international investment disputes is a very important and necessary.

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 serive request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

 

 

 

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What are the Process of Investigation of Imposing Trade Remedies?

Trade remedies are trade policy tool that allow governments to take remedial action against imports which are causing or threatening to cause material injury to a domestic industry. This is considered as a tool for maintaning the international trade order in a way of fairness and sound for countries when participating in free trade agreements. As Vietnam has entered a number of important free trade agreements, especially recent EU Vietnam Free Trade Agreement, it is important to understand the process of investigation of imposing trade remedies and how an international trade law firm could help representing clients in taking part in the procedures including anti-dumping, countervailing duty and safeguarding investigation of state authorities.

How a trade remedy case is processed?

Firstly, an organizations or individual representing a domestic industry may submit a request for applying the measure if it is found that the domestic industry is injured caused by dumping on imports, import subsidies or a surge in imports.

Secondly, after having the notification of lawful dossiers from Investigating authority, Minister of Industry and Trade would base on the proposal of Investigating authority to make decision of whether to start the investigation or not.

Thirdly, in the event of Minister of Industry and Trade decides to proceed the case, Investigating authority will issue the Questionnaire within 15 days from the date of issuing the investigating decision. However, in some cases, before sending the Questionnaire to parties, Investigating authority may send the quantity and value Questionnaire to select the sample to limit the scope of investigation.

The investigation to impose the anti-dumping measure, countervailing measure is within 12 months from the date of having the investigating decision, this duration may be extended but the total of the case does not exceed 18 months. However, the investigation period of imposing safeguard measure must be completed within 9 months, this duration may be extended but the total of the case does not exceed 12 months.

During the investigation period, Investigating authority will give an opportunity to interested parties for the consultation, specifically: (i) when having the consultation request from interested parties (ii) Before the final determination of investigation is disclosed, the investigating authority can organize the public consultation in manner that interested parties can present information and opinion related to the case.

However, Minister of Industry and Trade shall decide to terminate the investigation in the following cases:

·        The applicant voluntarily withdraws the application;

·        The preliminary determination of the investigating authority shows that there is no injury or threat of injury to the domestic industry or material retardation of establishment of the domestic industry;

·        The final determination of the investigating authority obtains one of the following contents:

The product under consideration imported to Vietnam is not dumped, subsidized or imported excessively;

There is no injury to the domestic industry;

There is no objective evidence of the existence of a causal link between the dumping on imports, import subsidies and the surge of imports and the injury or threat of injury to domestic industry or the material retardation of the establishment of the domestic industry;

·        The investigating authority reaches an agreement with the competent authority of the country which is accused of granting subsidies to its products imported to Vietnam on removing the abovementioned subsidies.

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 international trade attorney at Hanoi Office and Ho Chi Minh City of ANT Lawyers could be of help.

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How Payment by Documentary Credit in International Commerce Works?

Documentary Credit (also known as letter of credit or bankers commercial credit, or letter of undertaking) is one of the payment instruments that institutions providing non-cash payment services (banks, foreign bank branches, etc.) deal with to make a valid payment transaction at the request of the account holder. Documentary credit is the most commonly used for payment of international sales of goods.

Banking and Finance Law Firm in Vietnam

The supply of international payment services by institutions providing non-cash payment services shall be conducted in accordance with regulations of the law on foreign exchange management, treaties to which Vietnam is a member and commercial practices (including international commercial practices provided by the International Chamber of Commerce; and other commercial practices which are not contrary to the Vietnamese laws) which agreed upon by the parties.

According to UCP 600, credit means any arrangement, however named or described, that is irrevocable and thereby constitutes a definite undertaking of the issuing bank to honour a complying presentation.  Documentary credit is an independent and separate transaction from the sales and other contracts on which it may be based. The Issuing Banks and Advising Banks are in no way concerned with or bound by contract between the Applicant (purchaser) and the Beneficiary (seller), even if any reference whatsoever to it is included in the credit. Banks deal with documents only. Goods, services or performance to which the documents may relate are not under scope of handling of the Banks. When the issuing bank determines that a presentation of documents is complying, payment shall be made.

The independence between the documentary credit and the sales contract ensures that the seller definitely receives payment if complying presentation, however, does not protect the interests of the purchaser when there is any dispute about the quality of the delivered goods or any other dispute after delivery. When the seller presents complying documents, the issuing bank is obliged to make payment without any doubt whetherf the goods have actually been delivered according to the specifications as specified in the contract. At the same time, the cancellation or termination of contract does not affect the effectiveness of documentary credit, payment still is made if presentation is complying.

International payment instruments play an important role in commercial transactions between parties residing in different countries. Each payment method reflects the way of receiving and paying for goods amount between the buyer and the seller. The parties participating in international commerce transaction need to understand the characteristics of each payment instrument to protect their rights and obligations, and avoid disputes in international sales of goods, or disputes infinancial service using letter of credit or other forms, disputes in performance of contract and should involve lawyers in early stage if possible to avoid mishap.

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 serive request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

Let ANT Lawyers help your business in Vietnam.

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What Impact of Force Majeure and Basic Change of Circumstances for Contractual Relations During Covid 19 Pandemic?

Whether purpose contract has been achieved or not does not only depend on compliance with contract but also is controlled by conditions, objective circumstances. In the current pandemic situation, which regulations do participants in contract need to pay attention to?

According to Vietnam laws, event shall be regarded as force majeure if it meets three conditions: (i) objective factors; (ii) not able to be foreseen; (iii) not able to be remedied by all possible necessary and admissible measures being taken. It should be noted that epidemic is regarded as event of force majeure if there is factor of “not able to be remedied”. Covid-19 pandemic, in legal aspect, initially was not a force majeure event. Only when it broke out and the Government issued Directive on nationwide social dítancing, it appears that this pandemic become force majeure event. Specifically, according to request of Directive, all operation must stop, and this request seems to make Covid 19 epidemic meeting enough three mentioned conditions. Legal consequences of force majeure event is that if there is loss, and the obliger shall not take responsibility.

However, in the current pandemic situation, not all contractal relations will apply above principle. When force majeure event occurs, factor in performance of contract must be considered. This is fundamental difference between definition of “force majeure event” and “basic change of circumstances”. Specifically, the contract will not be performed in force majeure event and will be performed with many considerable changes compared to initial estimate in basic change of circumstances. According to the laws, the change of circumstances shall be deemed basic when it meets all following conditions: (i) The circumstances change due to objective reasons occurred after the conclusion of the contract; (ii) At the time of concluding the contract, the parties could not foresee a change in circumstances; (iii) The circumstances change such greatly that if the parties know in advance, the contract has not been concluded or are concluded, but with completely different content; (iv) The continuation of the contract without the change in the contract would cause serious damage to one party; (v) The party having interests adversely affected has adopted all the necessary measures in its ability, in accordance with the nature of the contract, can not prevent or minimize the extent of effect.

In the case of basic circumstances change, the affected party may request the other party to the re-negotiate the contract in a reasonable period of time. If the parties can not reach an agreement on amending the contract within a reasonable period of time, any of the parties may request a court or arbitration to terminate the contract at a specific time or amend the contract to balance the lawful rights and interests of the parties due to basic change of circumstances. The court may only decide to amend the contract in the event that the termination of the contract would cause greater damage than the cost to perform the contract if it is modified. In the process of negotiating on amendments and termination of the contract and the court or arbitration handling the case, the parties must continue to perform its obligations under the contract, unless otherwise agreed.

In the current pandemic situation, many places are still allowed to operate normally but there must be careful prevention measures. But these prevention measures are the cost that enterprise has to cover which is not small. Therefore, the contract can still be performed but one party has to suffer huge losses compared to initial estimate. In this case, the law allows parties to re-negotiate. If parties can not reach any agreement, such case shall be brought to the court or arbitration to be solved. There are two possibilities: firstly amending the contract to balance the parties’ rights, secondly terminating the contract at a specific time if the contract can not be amended.  And it is important to consult with dispute lawyers for possible options before taking the matters further to protect best interests in the transaction.

ANT Lawyers - a Lawfirm 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 serive request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

Let ANT Lawyers help your business in Vietnam.

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What are Trade Remedies in Vietnam?

When participating in the process of international economic integration, every country voluntarily cut off the trade barriers for goods to easily circulate among each other. However, in the legal framework of World Trade Organization (WTO), the countries are allowed to impose trade remedies if satisfying certain conditions. Vietnam has officially become a member of WTO since July 11 2007 and the imposing of these trade remedies are regulated in Law on foreign trade management 2018.

 

According to Law on foreign trade management 2018, trade remedies includes anti-dumping measure, countervailing measure and safeguard measure. Specifically, (i) Anti-dumping measure imposed on imports into Vietnam is a measure imposed on products that are dumped when being imported to Vietnam, which causes material injury or threaten to cause material injury to domestic industry or retard the establishment of the domestic industry; (ii) Countervailing measure imposed on imports into Vietnam is a measure imposed on products that are subsidized when being imported to Vietnam, which causes the material injury or threat of material injury to the domestic industry or retards the establishment of the domestic industry; (iii) Safeguard measure imposed on foreign products imported into Vietnam is measure imposed on increased imports of particular products to Vietnam, which causes the serious injury or threat of serious injury to the domestic industry.

 

The domestic industry mentioned above refers to the producers as a whole of the like products within the territory of Vietnam or those whose collective output of the like products constitutes a major proportion of domestic production of those products. Besides, the injury to domestic industry shall be determined on each level: (i) Material injury to domestic industry; (ii) threat of material injury to domestic industry; (iii) material retardation of establishment of a domestic industry; (iv)serious injury to domestic industry; (v) threat of serious injury to domestic industry.

 

Due to the imposing of these remedies directly affecting to foreign producer/exporter as well as domestic industry, thus, it is required to comply to six following rules when imposing these remedies:

 

Firstly, impose measures within the reasonable scope and level for a certain period of time to protect domestic industry, prevent or limit the injury to it;

 

Secondly, only impose measures after the investigation is carried out transparently and fairly in accordance with regulations of law and based on determinations of the investigation;

 

Thirdly, decisions on the investigation and the imposition of trade remedies shall be published;

 

Fourthly, if the duty rate of an official trade remedy is higher than those of a provisional trade remedy, the difference of duty will not be collected;

 

Fifthly, if the duty rate of an official trade remedy is lower than those of the provisional trade remedy, the difference of duty will be returned;

 

Sixthly, if the Minister of Industry and Trade does not impose an official trade remedy, the duty of provisional trade remedy that has been collected or the amount for ensuring the payment of temporary trade remedy duties shall be returned.

 

If Client needs any more information or request for legal advice regarding trade remedies measures including: anti-dumping, counterveiling duty and safeguard measures or international trade dispute matters, our international trade lawyers at ANT Lawyers could be of help.

 

 

 

 

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