Guidance on Unilateral Divorce Procedure

Divorce is the termination of husband and wife relationship according to the court’s legally effective judgment or decision. Divorce procedures are prescribed in the Civil Procedure Code, Law on Marriage and Family, Law on Mediation at grassroots… There are two forms of divorce in Vietnam: divorce at the request of one party (unilateral divorce) and divorce by mutual consent.

For divorce at the request of one party, the Court shall handle divorce at the request of spouse if it has grounds to believe that a spouse commits domestic violence or seriously infringes upon the rights and obligations of the husband or wife, which seriously deteriorates the marriage and makes their common life no longer impossible and the marriage purposes unachievable. The goals of a marriage that are not achieved include unequal obligations and rights between husband and wife; no husband and wife friendship; husband and wife do not respect each other’s honor, dignity and reputation; do not respect the right to freedom of belief and each other; do not help, and facilitate each other to develop in all aspects. In addition, a husband has no right to request a divorce when his wife is pregnant, gives birth or is nursing an under-12-month child. This provision limits the husband’s right to request a divorce when the wife is pregnant or is raising children under 12 months of age and if the wife requests divorce, whether she is pregnant or raising children under 12 months of age, the court the court still accepts and resolves like other normal cases.

Documents to file divorce petition?

Documents required for unilateral divorce include: Unilateral divorce application form; Marriage certificate (original copy); Identity card of husband and wife (certified copy); Child’s birth certificate (if there are common children, certified copy); Household registration book (certified copy); Documents proving ownership of common property (if there is common property, certified copy).

In order to proceed with a unilateral divorce, the petitioner needs to file a lawsuit for divorce at the competent court. The Court where the defendant resides and works is competent court to settle according to the first-instance procedure disputes about marriage and family. Therefore, in the case of unilateral divorce, the Court where the competent jurisdiction is located is the place where the defendant resides and works. In case of foreigners being husband or wife, the provincial/municipal courts are competent courts to settle.

What is procedure of divorce petition?

Before accepting the divorce petition, the State and society encourage the mediation at the grassroots level when the husband and wife request the divorce with petition. Mediation is conducted in accordance with the Mediation at grassroots.

After receiving the unilateral divorce petition, the Chief Justice of the Court assigns the Judge to examine the application and relevant papers. In case of necessity, the plaintiff shall notify the applicant of additional papers and necessary information. If the dossier is complete and eligible to accept the case, the Court shall notify the plaintiff of the advance payment of court fees at the Civil Judgment Execution Bureau within 7 days and return it to the Court a receipt of court fee advances. The judge proceeds to accept the case upon receiving the receipt of payment of court fee advances and shall notify the plaintiff, the defendant and the persons with relevant rights and obligations regarding the acceptance of the case within 03 days. The defendant and the persons with relevant rights and obligations within 15 days from the date of receipt of the notice of acceptance have the right to make counter-claims to the plaintiffs’ requests.

After the petition has been accepted, the Court shall conduct conciliation according to the law on civil procedures. The judge assigned to solve the case conducts a meeting to check the handover, access, disclosure of evidence and mediation of divorce between the involved parties and analyze clearly the rights and obligations for the involved parties to reach an agreement on the resolution of the case. In case after mediation the husband and wife reunite, it is considered the plaintiff withdraws the petition, and the Court issues a decision to suspend their request. If they cannot reunite but reach an agreement on the divorce, property division and children custody, after 7 days from the date the Court makes the minutes of the mediation to the parties without changing their mind. The Court shall recognize the divorce agreement and issue a decision recognizing the agreement of the parties. In case of unsuccessful mediation, the Court shall issue a decision to bring the case to trial if it is not in the case of suspension of settlement as prescribed.

How court trial is opened for divorce petition case?

Within 01 month from the day on which the decision to bring the case to trial is issued, the Court must open a trial. In case of good reason, this time limit may be extended but for no more than 2 months. At the end of the trial, the result of unilateral divorce resolution will be decided by the civil judgment. In case of unilateral divorce, the settlement time may be longer, maybe from 04 to 06 months. In fact, due to possible child custody and property disputes, the time to resolve may be longer.

For cases with disputes over assets, apart from the court fee of VND 300,000, the involved parties must also bear court costs for the disputed properties, determined according to the value of the disputed properties according to the provisions.

It is important that the parties need to research and prepare for relevant documents and procedures in their case and consult with lawyers in civil, family and property division, child custody disputes in Vietnam before taking action.

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Mar 2020 Color steel sheet product importing into Vietnam Update on Cases SG05 and AD04

Relates to two cases which are application safeguard measure and applicationanti-dumping (AD) measure with respective case number of SG05 and AD04 which our anti competition lawyers at international trade practice of ANT Lawyers are following up.

Regarding application safeguard measure with case number of SG05, on May 31^st, 2017, Ministry of Industry and Trade promulgated Decision 1931/QD-BCT on application safeguard measure on color steel sheet product importing into Vietnam from many different countries/ territories.

On Sep 11^th, 2019, Ministry of Industry and Trade promulgated 03 Decision on exemption from application safeguard measure and application AD measure with total amount of 16.294,9 tons.

Pursuant to regulation of Circular 06/2018/TT-BCT, on Oct 07^th, 2019, Trade Remedies Authority of Vietnam (TRAV) posted a notice to receive the dossier requesting for exemption from application safeguard measure on high-quality color steel sheet product 2020.

On Dec 30^st, 2019, Ministry of Industry and Trade promulgated 18 Decision on exemption from application safeguard measure and application AD measure with total exempted amount of 82.019,7 tons for 2020.

Regarding application AD measure with case number of AD04, on Aug 02^nd, 2018, Ministry of Industry and Trade received dossier requesting to investigate on imposition AD measure on some flat-rolled alloy or non-alloy steel products, painted with varnish or coated with other types originating from People's Republic of China and Republic of Korea.

On Oct 15^th, 2018, Minister of Industry and Trade promulgated Decision no. 3877/ QD-BCT on investigating on imposition AD measure for some steel product mentioned above.

On Jun 18^th, 2019, Ministry of Industry and Trade promulgated Decision no. 1711/QD-BCT on application provisional AD measure on some color coated steel (commonly known as color steel sheet) originating from China and Korea. Accordingly, the rate of provisional AD duty imposed on enterprises importing color coated steel of China is from 3,45% to 34,27% and of Korea is from 4,48% to 19,25% (specific rate is shown in attached Decision).

After nearly 8 months of initial investigation and complying with regulations of World Organization Trade, Law on foreign trade management and relevant regulations, Ministry of Industry and Trade has cooperated with relevant units to consider and carefully evaluate the impacts of AD activities of imported goods on operation in domestic manufacturing, dumping level of manufacturing, exporting enterprises of China and Korea as well as consider, calculate impacts on manufacturing and consumers of color coated steel product.

The results show that safeguard measures in the form of tariff quotas are being applied, but there are signs of dumping with a high margin from the quantity of imported goods within the quota, from 3,45% to 34,27% and this will continue to threaten and cause considerable damage to domestic color coated steel manufacturing.

Dumping activities mentioned above continues to cause considerable pressure on performance indicator of domestic manufacturing, shown in criteria such as: manufacturing quantity, sales volume, revenue, profit, market share, inventory which fluctuate during the investigation period, especially in the period of the last 7 months of 2018 until now, these indicators show the clear downtrend: many domestic enterprises was at a loss, many production line must stop working and large amount of labor had to quit their job.

When deciding to apply provisional AD measure, Ministry of Industry and Trade considered relevant parties and relevant state authorities’ opinions as well as based on practice of many other member states of WTO. Accordingly, goods imported within the quota of safeguard measures shall be imposed provisional AD duty. Regarding goods imported outside the quota, comparation between provisional AD duty and outside quotas safeguard duty needs to be carried out and higher duty shall be imposed. This application is to eliminate status of double imposition on importers.

Besides, special color coated steel product which domestic manufacturing has not produced yet such as PCM product, VCM used to manufacture refrigeration engineering and electronic appliances, PVDP products used for thermal power plants, and other special products .... These are exempted from application scope of provisional AD measure. Under regulation, imported material to manufacture exported goods shall not be applied AD measure.

The rate of provisional AD duty fluctuateing from 3,45% to 34,27% and imposing on imported goods from China and Korea were issued in accordance with the regulations of World Organization Trade, Vietnamese laws and reflected true dumping activities of foreign manufacturer, exporter. Foreign manufacturer, exporter with correct product, quality and price being close to market rules are determined low dumping margin. Meanwhile, the low-quality floating dumping goods shall be prevented by higher provisional AD duty.

On Sep 11^th, 2019, Ministry of Industry and Trade promulgated 03 Decision on exemption from application safeguard measure and application AD measure with total amount of 16.294,9 tons.

On Oct 24^th, 2019, Ministry of Industry and Trade promulgated Decision no. 3198/QD-BCT on imposition of AD duty on color steel sheet originating from China and Korea.

On Nov 07^th, 2019 TRAV posted a notice to receive the dossier requesting for exemption from application AD measure on high-quality color steel sheet 2020.

On Dec 30^th, 2019, Ministry of Industry and Trade promulgated 18 Decision on exemption from application safeguard measure and application AD measure with total exempted amount of 82.019,7 tons for 2020.

On Mar 10^th, 2020, Ministry of Industry and Trade posted a notice to receive and guide the submission of the Dossier requesting for exemption from application AD measure and safeguard measure. Enterprise shall submit the Dossier requesting for exemption at public service Portal by website  https://dichvucong.moit.gov.vn or send to Trade Remedies Authority of Vietnam before 5pm on April 15^th, 2020. It should be noted that enterprises which were exempted for 2020 shall not submit the Dossier requesting for exemption in 2020 according to this notice. If the amount of exemption is going to end, above enterprises shall submit the Dossier supplementing for exemption according to Article 16.4 of Circular 37/2019/TT-BCT.

Our international trade lawyers in Vietnam at ANT Lawyers will continue to follow up with development and update client.

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Importants Matters to Consider in M&A Contract

Before carrying out merger or acquisition (M&A), enterprises need to research carefully regulations of law to protect their rights and interests. Regulations on each aspect of M&A activities are referred to in various legal documents such as Law on Enterprises, Commercial Law, Competition law, Law on Investment, Civil Code …

When carrying out M&A, enterprises should also pay attention to some basic terms in the contract. The M&A lawyers should be referred to for effective process and minimizing risks of the transaction. Definition, this term is used to define words, phrase used many times or unified understanding between the parties or abbreviations.

Entity, the parties should specify the parties’ information such as: corporate names, address of headquarter, name, position of legal representative, identity card number (or passport number) of legal representative, corporate tax code, … according to enterprise registration certificate or investment registration certificate. When entering into contract, the parties can contact and ask partners to provide copies of enterprise registration certificate or investment registration certificate to ensure correct information and authority to sign.

M&A conditions in M&A contract. Conditions for M&A are conditions agreed by two parties to carry out M&A. M&A is carried out only when these conditions have been met. These conditions include conditions agreed by General Meeting of Shareholders, Board of Directors, the company owner; Conditions of announcing company status, financial obligations, business activities …, announcing to relevant third parties; Conditions of business activities, company activities; Conditions of people, personnel.

Declaration and commitment of both parties on the status of enterprises, contract need to have term of affirmation and commitment of seller about corporate debt. This will limit disputes and risks for the buyer.

Determination of assets and financial obligations in M&A contract. This determination includes time of determination, entity, related costs, methods for disposal of assets.

Transfer of rights and obligations in M&A contract. The time of transfer, the time of enjoying rights and generating obligations, the conditions for transfer, the mode for transfer, the transfer procedures and the papers, documents needed to transfer, includes: transfer of ownership rights, economic rights; transfer of effective contract; Arising benefits enjoyed by merged company; Tax obligations, insurance obligations, wages for employees and debt repayment obligations.

Methods and time of payment, parties need to specify methods for payment and specific duration of payment with amount of each installment payment. In order to ensure safety, the parties should request a competent reputable organization to provide intermediary financial services. This third party will stand out to ensure the parties of the contract to comply correctly and legally with the agreement.

Conditions, time limit, procedure of M&A, the buyer needs to specify attached conditions and specific time in process of M&A to let the seller perform obligations of transfer of asset, stocks, shares under regulations of contract. Procedures include procedures under law and other procedures under company’s charter.

Legal rights and obligations, parties need to detail obligations in previous period, during and after contract performance as well as the specific time of termination.

Time limit of contract performance, parties need to specify the time of taking effect and termination, or arising grounds which result in the termination of the contract.

Term of dispute resolution, dispute may be brought to the competent Court or Commercial Arbitration for settlement.

Term of fines against violations is also necessary to pay attention. This is a type of sanctions made by the parties but this must be suitable for the regulations of law.

Force majeure clause. Force majeure is a legal event arising out of subjective will of the parties. These cases make one or both parties unable to perform or perform improperly their obligations. When breaching the contract due to a force majeure event, the law would not force to take responsibility for the asset.

Besides, merger contract should have term of transfer of stock, term of employee utilization plan after merger and acquisition.

ANT Lawyers is a law firm in Vietnam located in the business centers of Hanoi, Danang, Ho Chi Minh city. We provide convenient access to our clients. Please contact us to book your time in advance to let us provide our best services.

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Transfer of Trademark Application in Vietnam

After filing of the application for a trademark registration, applicants might wish to transfer theirs application to others. There are lots of reasons for this but most of them derives from practical business activities and development needs of market, and society. For instance, two subjects transfer the application to each other for profit purpose; individuals want to set up an enterprise in the future and register a trademark as individuals and then transfer the application to the legal person to get early the priority date; at the moment, individuals are unqualified to be applying in applicants’ s name then individuals have others to do in application, in the appropriate time, and when the individuals are qualified according to statutory, they would implement the procedure of transfer the application.

Trademark in Vietnam

Transfer of application for a mark registration is implemented on voluntary basis between the parties or decision of the competent authority and shall be presented in the form of a written contract. However, owner of application is only allowed to transfer application at the following times: before National Office of Intellectual Property of Vietnam makes a decision on refusing to accept the application, decision on issuing or refusing to issue protection titles. If one of the parties in contract transfers application for transfer registration after the time mentioned above, that application shall not be accepted.

Necessary documents when implementing the procedure of transfer of application for a trademark registration include:

-Transfer contract: Contract must show name and address of transferor and transferee; the number of transfered applications or sufficient information to determine that application;

-        -Declaration for registration of transfer;

-        -Power of attorney (if authorized to industrial property agent i.e. ANT Lawyers).

According to regulations, duration of examining application for transfer registration is 2 months from the date of submission the application. However, this duration can be faster or slower, depending on the workload of National Office of Intellectual Property at the time the application is examined.

If the Client would like to know more about information and to be consulted about matters relating to transfer of application for a mark registration, please contact Intellectual Property department of ANT Lawyers, the trademark attorney in Vietnam.

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Four Steps of Patent Application Processing Procedures

After submitting patent application at National Office of Intellectual Property in Vietnam (NOIP), the applicant will concern on how their application will be processed.

Specifically, patent application will be gone through the following phases: receipt of application; formality examination of application; substantive (ex-officio) examination of application; grant of or refusal to grant protection titles; official registration and publication of decisions on the grant of protection titles.

Vietnam patent

Firstly, receipt of patent application:

When receiving the application in this first phase, the NOIP will check and prepare with the documents listed in the declaration to consider whether to receive the dossiers. In case of sufficient dossiers according to the law, the receiving officer shall receive the dossiers and stamp the submitting date in the dossiers and send back a declaration to the applicant. In case of insufficient dossiers, the NOIP shall decline to receive the dossiers.

Secondly, formality examination of patent application:

The purpose of formality examination is for examination of observance of regulations on formalities applicable to applications, serving as a basis for concluding whether applications are valid or invalid. If the application is valid, it will be proceeded to the next step, otherwise, it will be denied. The formality is considered related to the language in the application, application presentation, word size; the declaration must ensure the compulsory information and be uniformed; regarding the documents required to have the confirmation of competent authority then those documents must have that seal. Besides, the NOIP also check the filing date and priority date (if any). If there are any errors in the dossiers, the NOIP will send a notification to applicant of intention to refuse the valid application and set a period so as the applicant can correct the errors. In case applicant does not reply to the notification, the NOIP will issue the refusal notification of the application; if the application is valid, the NOIP will issue the acceptance notification of the valid application.

Thirdly, publication of valid application:

After being accepted the validity, the NOIP will publish the valid application on Industrial Gazette in the nineteenth month from the date of priority or the filing date in case the application has no date of priority or within two months after it is accepted as a valid application, whichever is later. If the patent application is under the Patent Cooperation Treaty, it shall be published within two months from the date it is accepted as a valid application and entering the national phase. Regarding the application which request for earlier publication, it shall be published within two months from the date the NOIP receives that request or the date it is accepted as a valid application, whichever is later.

Fourthly, substantive examination of patent application;

The purpose of substantive examination is to assess the protect ability of objects stated in those applications under the protection conditions and corresponding protection coverage. Be noted that during the substantive examination process to the application having the priority, the NOIP may use the searching information result and corresponding substantive examination result of the application submitted abroad. However, the applicant could actively provide the following documents for substantive examination: (i) searching information result and corresponding substantive examination result of the application submitted abroad (ii) the copy of protection title on the basis of similar application submitted abroad (iii) the documents related to technical art of the subject mentioned in the application which provided by oversea competent authority and other documents. The content of substantive examination is to assess the corresponding of the subject in the application to each protection claim. After finishing the substantive examination period, the NOIP will issue one of the following notifications:

-The subject in the application does not satisfy the protected conditions or satisfies the protection conditions and remains some errors. Then, the NOIP will issue a notification of intention of refusal to grant protection title and set a period for applicant to have opinion and correct the errors. If the applicant replies to the notification and the NOIP considers to be suitable, then NOIP then issues the intention of granting protection title and set a period for application to submit the granting fee.

-If the subject in the application satisfies the protected conditions, the NOIP then issues the intention of granting protection title and set a period for application to submit the granting fee.

In both the above cases, if the applicant submits the granting fee, publication of granting decision fee; registration protection title fee and first year remaining validity fee, applicant will then be granted the patent registration certificate. Every year, applicant will have to submit the remaining validity fee, otherwise, the protection title will be invalid.  It is suggested that patent attorney in Vietnam will be assigned to follow up with the authority for effective management of IP properties.

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Condition, Procedures and Period of Patent Registration in Vietnam

Before applying the patent registration, applicant needs to find out the matters related to conditions, procedures and period from the time of submission the application until granting the protection title when registering a patent to avoid the cases that National Office of Intellectual Property in Vietnam (NOIP) may issue the notification on denying examination due to not meeting criterias or non compatible dossiers.

Register invention in Vietnam

According to Law on Intellectual Property in Vietnam, a patent needs to satisfy 03 following criterias to be protected:

-An invention shall be deemed novel if it has not yet been publicly disclosed by use or by means of a written description or any other form either inside or outside Vietnam before the filing date or the priority date, as applicable, of the invention registration application.

-An invention shall be deemed not yet publicly disclosed if it is known to only a limited number of persons who are obliged to keep it secret.

-An invention shall not be deemed to have lost its novelty if it is published in the following cases, provided that the invention registration application is filed within six (6) months from the date of publication:

1.It is published by another person without permission from the person having the right to register it;

2.It is published in the form of a scientific presentation by the person having the right to register it;

3.It is displayed at a national exhibition of Vietnam or at an official or officially recognized international exhibition by the person having the right to register it.

-An invention shall be deemed to be of an inventive nature if, based on technical solutions already publicly disclosed by use or by means of a written description or any other form either inside or outside Vietnam prior to the filing date or the priority date as applicable of the application for registration of the invention, the invention constitutes inventive progress and cannot be easily created by a person with average knowledge in the art;

-An invention shall be deemed to be susceptible of industrial application if it is possible to realize mass manufacture or production of products or repeated application of the process which is the subject matter of the invention, and to achieve stable results.

For registration procedurds, after the application was filing, it will go through 02 phases of examination:

-The application will be examined formality from 1-3 months. If the application meets the formality criteria according to the law, NOIP will issue the decision on accepting the formality of the application. Then, it will be published on Industrial Property Official Gazette within 02 months from the date of issuing the above decision.

-Then, when having the request, the application will go through a substantial examination within 12-16 months. If meeting the protection criteria as mentioned above, NOIP will issue the Patent to applicant.

However, the actual examining period will be shorter or longer than as regulated.

In case of authorizing ANT Lawyers as IP agent in Vietnam, the client needs to provide the following documents:

-Name and address of the applicant;

-Name and address of inventor(s);

-POA to ANT Lawyers;

-Specification, Figures and Claims of the patent;

-Priority documents (if any);

-Other related documents.

ANT Lawyers - A Law firm in Vietnam is supported by a team of experienced patent, trademark, design attorneys with qualification and skills handling full range of legal services relating to intellectual property rights in Vietnam.  We have specialized in the preparation and registration of patents, trademarks and designs for our clients.

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