Startup company

From 2015 onwards, the wave of small and medium-sized startups in Vietnam has been developing rapidly. This development is followed by government’s support in forming legal corridors, scheme to favour startup ecosystem and encourage science and technology organizations, research institute, technology incubator, etc. To be deemed as a startup, an individual or business must start their own business along with an innovative idea. Currently, startup is the legal term as recognized under the laws, especially on Law on Small and Medium Enterprises Assistance 2017.

 

For clarification, small and medium startups are small and medium enterprise (“SME”) established to implement its business ideas based on the utilization of intellectual property, technology and new business models and are able to grow rapidly. These enterprises are in the stage of getting a business up and running, attaches to science and technology or find out new business models, provide products and services to new market segmentation, growth rapidly and make a difference to domestic and foreign enterprises.

Directive 9/CT-TTg dated on February 18th, 2020 of the Prime Minister requires relevant ministries and agencies such as the Ministry of Planning and Investment, Science and Technology, etc. to implement solutions, remove barriers and resolve difficulties, issue policies to create favorable conditions for startups. These include the proposal to amend the Law on Investment in the direction of facilitating foreign investors to establish, contribute capital, purchase shares, or contributed capital of startup investment funds in Vietnam. Before establishing an economic organization, the foreign investor must have an investment project and carry out the procedures for issuance or amendment of the Investment Registration Certificate, except for the establishment of small and medium-sized startups and startup investment funds in accordance with the Law on Small and Medium Enterprises Assistance. Although the Law on Small and Medium Enterprises Assistance 2017 and guiding decrees have taken effect, it is not clear what procedures the foreign investors are required to do to set up a SME startup. It is necessary to wait for specific instructions for startup formation.

Moreover, according to the Law on Investment 2020, startup investment projects are included in the beneficiaries of investment incentives as recently added. Technology and intellectual property exploitation are two of subjects which are considered as startup projects. The technology sector, before the Law on Investment 2020 takes effect, has achieved a number of tax incentives for eligible enterprises, for example: enjoying enterprise income tax at rate of 10% for 15 year or tax exemption for four years, 50% reduction of taxable for the next nine years, not subject to value added tax. Furthermore, SME startups selected for SME support project are entitled to enjoy the following assistances: (i) consultation on intellectual property, intellectual property utilization and development; (ii) procedures for technical regulations and standards, quality measurement, testing and improvement of new products and business model; (iii) technology uses and transfers; (iv) training, information, trade promotion and commercialization; (v) use of technical facilities, incubators, and common working areas according to Decree No. 39/2018/ND-CP.

We are 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

Let ANT Lawyers help your business in Vietnam.

 

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Change of Child Raising Person after Divorce

When divorce, children raising issue is very important and is always considered by the parties. Typically, parents always want the best for their children. However, there are also cases that the person who is raising that child unable to provide comprehensive benefits for the child. Then the person who is not directly raise the child may request for caregiver to ensure human rights.

 

ANT Lawyers would advise to customers some of the content in the issue of stipulating caregiver and change of caregiver after divorce.

The nursing, take care, educating and parenting after divorce

After divorce, parents are still obliged to look after, take care, educating, parenting minors or adults who are disabled, lost their civil act capacity, inability to work and have no property to support themselves.

The person who is not directly raises children have to provide rearing support.

Husband and wife agree on the person who directly raise the children, the rights and obligations of each party after divorce to their children; if no agreement is reached, the Court decided to assign one party to directly raise children based on the interests of that children in all aspects; if the children is nine years old or older, the wishes of the children must be considered.

In principle, children under three years of age are directly raised by the mother, unless the parties agree otherwise.

Change the person who directly raises children after divorce

For the benefit of the children, at the request of one or both parties, the Court may decide to change the child directly raising people.

The change of child directly raising people after divorce is conducted in case the people who directly raise the child does not guarantee the rights of the child in all aspects. Moreover, if the child is nine years old or older, we have to take into consideration the aspirations of the child.

ANT Lawyers- Marriage and family dispute law firm in Vietnam has experience in civil and family matters to advice clients whom are interested for such legal service in Vietnam. We assist our clients in the process of reviewing agreements, procedures and concerned matters in civil and family.

 

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Child Adoption by Foreigners

Presently, there are many foreign people want to adopt a Vietnamese. Besides, the law of Vietnam also has strict regulations for child adoption by foreigners.

First is the adoption of specific child by foreigners. The Adoption Act 2010 defined that the Vietnamese residing abroad and foreigners permanently residing overseas are allowed to adopt specific child in the following cases:

 

Adoption Lawyers in Vietnam

As stepfather or stepmother of the adopted person;

As uncle or aunt of the adopted person;

Has adopted children who are siblings of the children that are adopting;

Adopt children with disabilities, HIV / AIDS or other fatal diseases;

As foreigners who are working and studying in Vietnam for at least 01 years.

In which the 4th case is a special case that are encouraged by the State with simpler procedures than other cases.

The order and procedures for adoption of child will be conducted as follows:

The profile of child adopting people includes:

+ Application for adoption by name;

+ A copy of the passport or replacing document that have the same value;

+ The written permission for child adoption in Vietnam;

+ The psychological and family investigation;

+ Documents certifying health status;

+ Documents certifying income and assets;

+ Judicial record;

+ Documents certifying marital status;

+ Documents evidencing eligible for child adoption by name.

+ In case of specific child adoption for children over 5 years old and two or more siblings, the record must clearly state the psychological preparation plan for children, preparing conditions for children to integrate into the new family, culture and society environments.

The above documents are issued and certified by the competent authority where the child adopting people permanently reside. To be certified by the State of Vietnam, it should be certified through the procedure of consular legalization.

The profile of children to be adopted includes:

+ Birth certificate

+ Certification of health issued by the district or higher health authorities;

+ Two full body and looking straight images, which was taken within 06 months

+ Documents about the noteworthy characteristics, preferences and habits of children.

These papers are issued by nurturing organizations or natural parents / guardians of children.

Profiles of the child adopting person and the child being adopted are submitted directly at the Bureau for adoption. The case that cannot submit the profile directly at the Bureau for adoption, the child adopting person have to authorize by written document their relatives residing in Vietnam to submit the profile at the Bureau for adoption or send the profile through post office in the form of guarantees.

In the procedure of adoption of specific children with disabilities, HIV / AIDS or suffering from serious diseases, Vietnam law allows the free implementation of procedures to find alternative families and introduce children for adoption. The meaning of this is to shorten the procedure, creating condition for these children to be adopted and nurtured in an enabling environment.

After receipt of the application for adoption, Bureau of adoption will check and appraisal the profile to determine that the child adopting people was certified by the competent authorities of the country where he or she resides that he or she satisfy the eligibility for child adoption under the laws of that country and under the laws of Vietnam.

Towards the child to be adopted, after receiving profile from natural parents or guardians of the child, Bureau for adoption has the responsibility to inspect children’s record, conduct consultation with the natural father / mother or the guardians of child about the child adoption for foreigner during 07 working days.

Within 07 working days from the expiration date of changing opinion about the child adoption for foreigner of the natural parents or guardians of children, if children are eligible to be adopted by foreigner, who are entitled to adoption by name, Bureau for adoption will report the Department of Justice, Department of Justice will certify by document that the children eligible for adoption by foreigner. Finally, Department of Justice submits to the Provincial People’s Committee decided to allow the foreigner to adopt the children.

Second is the adoption of child not by name with foreign element. The adoption of child not by name with foreign element is the cases when Vietnamese residing abroad, foreigners reside in the country in which that country is a member of international treaties on child adoption with Vietnam and adopt Vietnamese children; Vietnam citizens residing in Vietnam adopt foreign children; foreigners permanently residing in Vietnam adopt Vietnamese children.

For the adoption case that not by name, the order and procedures will include:

+ The profile of people that want to adopt children should be submitting to the Bureau for adoption through the adoption agencies of that country that are licensed to operate in Vietnam. If that country does not have adoption agencies licensed to operate in Vietnam, the adoption profile should be submitting to the Bureau for adoption through diplomatic representative offices or consular office of that country in Vietnam.

+ The profile of children being adopted will be submitted by natural parents or guardians of the children at the Bureau for adoption.

+ The Bureau for adoption receives, inspect and evaluate profile of the child adopting people and children being adopted.

Compared to the case of adoption by name with children with disabilities, HIV / AIDS or other serious diseases, the case of adoption not by name, the Department of Justice has to implement the procedure to find alternative family and introduce children for adoption. The meaning of these two procedures is to encourage local Vietnamese permanent residing in Vietnam to adopt Vietnamese children, enabling Vietnamese children to live, learn and develop in their own homeland. Only when the above procedure to find alternative family and introduce children for adoption have finished without any local people want to adopt that children, the Department of Justice will consider deciding for the children to be adopted by foreigner.

The notice period to find alternative family is regulated as 60 days, during this period, if any Vietnamese wants to adopt children, they should contact the Commune People’s Committee where children resides to consider and settle the adoption. If time runs out 60 days, the Department of Justice has to prepare a list of children who need to find alternative families and submit to the Ministry of Justice.

On the other hand, within 30 days after receiving profile from foreigner that want to adopt Vietnamese children, the Department of Justice has to review and introduce children to be adopted on the basis of children with no domestic adoption. After introducing children to be adopted, the Department of Justice reported the Provincial People’s Committee for comments.

The case that the Provincial People’s Committee disagrees, they have to send a written document stating the reasons and submit to the Department of Justice. On the other hand, the case that the Provincial People’s Committee agrees, within 07 working days, the Provincial People’s Committee decided for children for abroad adoption.

We are 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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How to Obtain Construction Practicing Licenses in Vietnam?

The Construction Practicing License (practicing license) shall be issued to any Vietnamese citizens, overseas Vietnamese or foreigners who legally carry out construction activities in Vietnam in order to hold certain positions or operate their own construction business as prescribed in the amended Law on Construction 2020.

 

Holders of titles and individuals practicing construction activities who are required to possess practicing licenses as prescribed in Law on Construction include construction investment project managers, construction planning design managers, construction survey managers, construction design or design verification managers, construction supervision consultants, and managers in charge of formulating, verifying and managing construction investment costs. Any foreigner who obtained a practicing certificate issued by a foreign authority or organization and has practiced construction in Vietnam for less than 06 months shall be permitted to practise construction activities. If he or she has practised construction in Vietnam for at least 06 months, he or she is required to change the construction practicing license.

A foreigner shall be issued with the practicing license if he or she: has full legal capacity as prescribed by law and obtains a residence permit or work permit in Vietnam; has qualifications and experience relevant to requirements of the practicing certificate; passes the test in the field that is covered by the practice license applied for.

Practicing licenses shall be classified into Rank-I, Rank-II and Rank-III. In particular, a Rank-I practicing license is granted to the individual who gains a bachelor’s degree in appropriate major and at least 07 years’ experience relevant to requirements of that practicing license; a Rank-II practicing license is granted to the individual who gains a bachelor’s degree in appropriate major and at least 04 years’ experience relevant to requirements of that practicing license; a Rank-III practicing license is granted to the individual who has appropriate qualifications and at least 02 years’ experience relevant to requirements of that practicing license with respect to the holder of the undergraduate degree and at least 03 years’ experience with respect to the holder of the associate degree or intermediate diploma.

The competence authority in Vietnam to grant practice licenses: the construction-specialized agencies directly under the Ministry of Construction shall grant Rank-I practicing licenses; The Department of Construction issues Rank-II, Rank-III practicing license and recognized socio-professional organizations grant Rank-II, Rank-III practicing license to individuals who are their members and members.

An application for issuance of the construction practicing license for the first time includes: An application form enclosed with the applicant’s 02 color 4 x 6 cm and white background pictures which are taken within the last 06 months; Qualification(s) granted by a legal training institution in accordance with the type or rank of the certificate applied for; Decisions on task assignment (responsibility assignment) issued by an organization to an individual or written confirmation of completed typical tasks provided by the legal representative of the investor, in case the individual runs his/her own construction business, a contract and record on commissioning of listed typical tasks are required; Legal residence-related documents or work permit issued by a Vietnam competent authority, applicable to foreigners. The above documents must be notarized, legalized, authenticated then translated with certified true copies into Vietnamese or included in a file that contains color photos of originals or copies presented together with the originals for comparison. Besides, satisfactory test result in case the test is done before the date of submission of the application for the practicing license.

For application of the practicing license, the applicant shall submit an application form for issuance of the practicing license, electronically or by post or in person, to the issuing authority. From the date on which the satisfactory application is received, the issuing authority shall issue the construction practicing license within 20 days in the case of issuance of the license for the first time. In the case the application is unsatisfactory, the issuing authority shall notify the applicant in writing once within 05 days from the date on which the application is received.

The practicing license of a foreign individual, its effective period shall be determined according to the period specified in the work permit or temporary resident card issued by a competent authority but not exceed 05 years.

The above are provisions on the process of granting construction practicing licenses for foreign individuals working in Vietnam under the amended Law on Construction 2020. The amended Law on Construction 2020 takes effect from January 1, 2021.

ANT Lawyers, a law firm in Vietnam with offices in Hanoi, Da Nang, Ho Chi Minh city could assist clients with application process.

 

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What Are the Conditions for Initiating an Anti-dumping Case?

Anti-dumping measures as trade remedies are imposed to protect the domestic market against the unfair penetration and competition from foreign goods. GATT requires member countries to reduce tariffs as well as other non-tariff trade barriers on goods in general and to impose trade remedies in accordance with statutory conditions and procedures in particular.

 

What Are the Conditions for Initiating an Anti-dumping Case

The investigating authority must verify the satisfied conditions under regulations of the anti-dumping law and requests the Minister of Industry and Trade to issue a decision on the initiation of investigations. In order to comply with GATT and ADA, an anti-dumping investigation are initiated if (i) there is obvious evidence that import of dumped goods causes or threatens material injury to an established industry or materially retards the establishment of a domestic industry and (ii) organizations or individuals representing the domestic industry submit an application for the anti-dumping measures.

How to determine dumping actions and its consequences?

The dumping action is one of the conditions required as imposing anti-dumping measures.  A product is to be considered as being dumped (i.e. introduced into the commerce of another country at less than its normal value) if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country. Besides, the anti-dumping measure shall not be imposed on a product whose dumping margin is not more than 2% of its export price.

The investigating authority must determine whether the domestic established industry is materially injured or threatened material injury or establishment of a domestic industry is materially retarded or not. The investigating authority of the importing country shall be liable for proving these factors based on specific evidences.

A causal link between the dumped imports and the alleged injury is required. The dumping of goods imported into Vietnam causes or threatens material injury to an established industry or materially retards the establishment of a domestic industry. Factors other than dumping of goods imported into Vietnam such as trade restriction policy, development of technology, export capacity and productivity of domestic manufacturing industry, etc., will not be considered as effect caused by the dumping of goods.

Whom could request for imposing anti-dumping measures?

Investigation is conducted upon request of imposing anti-dumping measures by organizations or individuals representing the domestic industry. Organizations or individuals are deemed as representation of domestic industry if: The total production of like products produced by the applicant(s) and domestic producers supporting the application is greater than those produced by domestic producers that opposite to the application; and the total production of like products produced by the applicant(s) and domestic producers supporting the application accounts for at least 25% of total production of like products produced by the domestic industry.

Upon receiving a sufficient dossier as prescribed by the laws, the investigating authority shall conduct the dossier appraisal within a certain time limit and recommend the Minister of Industry and Trade to decide whether the investigation is initiated or not.

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.

In order to seek further advice, please contact us at ant@antlawyers.vn or call + 84 912 817 823.  ANT Lawyers, your law firm in Vietnam.

 

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How Copyright Related Rights Are Regulated?

 

How Copyright Related Rights Are Regulated?

Copyright related rights (hereinafter referred to as related rights) means rights of an organization or individual to performances, audio and visual fixation, and broadcasts and satellite signals carrying coded programmers. Related rights shall arise at the moment of the above subject matters are fixed or displayed without causing loss or damage to copyright. Principally, related rights are protected by state agency even without the registration. However, the related right owner still may perform the registration procedures for being granted of copyright related right certificate by state agency. The copyright related rights registration could also be assisted by IP attorney in Vietnam.

Copyright in Vietnam

Which individuals/organizations are eligible for protection of related rights?

The three following subjects are entitled for being protected copyright related rights (i) actors and actresses, singers, instrumentalists, dancers and other persons who perform literary and artistic works (hereinafter all referred to as performers); (ii) organizations and individuals who own performances; (iii) organizations and individuals who fix for the first time the sounds and images of performances or other sounds and images (hereinafter all referred to as producers of audio and visual fixation); (iv) organizations which initiate and carry out broadcasting (hereinafter referred to as broadcasting organizations).

The specific subject matters of copyright related rights which are protected under the law of Vietnam are:

Firstly, performance shall be protected if they fall into one of the following categories (i) it is made by Vietnamese citizens in Vietnam or abroad; (ii) it is made by foreigners in Vietnam; (iii) it is formed on audio and visual fixation; (iv) it has not yet been formed on audio and visual fixation but have already been broadcast (v) it is protected pursuant to an international treaty of which the Socialist Republic of Vietnam is a member.

Secondly, audio and visual fixation shall be protected if it falls into one of the following categories (i) it belongs to audio and visual fixation producers bearing Vietnamese nationality; (ii) it belongs to audio and visual fixation producers protected pursuant to an international treaty of which the Socialist Republic of Vietnam is a member.

Thirdly, broadcasts and satellite signals carrying coded programmers shall be protected if they fall into one of the following categories (i) they belong to broadcasting organizations bearing Vietnamese nationality (ii) they belong to broadcasting organizations protected pursuant to an international treaty of which the Socialist Republic of Vietnam is a member.

It is necessary to take note that the above subject matters are only be protected in the condition that they are not prejudicial to copyright.

If Client needs any more information or request for legal advice regarding copyright related right or other matters of intellectual property, IP attorney in Vietnam at ANT Lawyers could assist.

 

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How to Use Published Works Without Permission or Pay Royalties, Remuneration?

According to regulation of current Law on intellectual property, copyright means rights of an organization or individual to works created or owned by such organization or individual. Copyright to a work includes moral rights and property rights. If other organization or individual wishes to exploit, use a part or the whole of works, they shall ask permission, pay the owner of copyright for royalties, remuneration according to both parties’ agreement or regulation of law. However, there are still cases of using works without having permission and/orwithout paying the author or owner of copyright for royalties, remuneration.

Cases of using published works without having permission, without paying for royalties, remuneration include:

 

Copyright in Vietnam

-Making one copy for scientific research or personal teaching purposes.

-Reasonable quoting from a work in order to comment on or illustrate one’s own works, without misrepresenting the author’s views;

-Quoting from a work in order to write an article published in a newspaper or to use in periodical publications, in a radio or television broadcast or in a documentary, without misrepresenting the author’s views;

-Quoting from a work in order to teach in school or university without misrepresenting the author’s views and not for commercial purposes;

-Copying of a work in order to archive in library and research purposes;

-Performing a stage work or other art work in cultural meetings, communication or mobilization activities without collecting fees in any form;

-Directly audio-visual recording of a performance in order to report current news or to teach;

-Photographing or televising shaping work, architectural, photographic, or applied art work displayed at a public place in order to present images of such work;

-Translating a work into braille or other languages for the blind;

-Importing copies of another’s work for personal use.

However, it should be noted that organization or individual using, exploiting works in above cases must meet the conditions: not causing damage to the normal exploit of works, not causing damage to copyright and owner of copyright; must provide information of  the author and the source and origin of the work. In addition, due to specific characteristics of of various types of works such as architectural works, shaping works and computer programs, cases of (i) making one copy for scientific research or personal teaching purposes and (ii) copying of a work in order to archive in library and research purposes, shall have permission and pay author or owner of copyright for royalties, remuneration according to both parties’ agreement or regulation of law.

Cases of using published works without having permission but paying for royalties, remuneration include:

-A broadcasting organization which uses a published work to make a broadcast which is sponsored, contains an advertisement or which collects fees in any form shall not be required to ask permission but must pay the owner of copyright for royalties or remuneration from using time. Level of royalties, remuneration or other material benefits and payment methods are agreed by parties; If the agreement can not be reached, it shall follow regulation of Government or shall file a petition to Court according to regulation of law;

-A broadcasting organization which uses a published work to make a broadcast which is not sponsored, no advertisement or which do not collect fees in any form shall not be required to ask permission but must pay the owner of copyright for royalties or remuneration from using time according to regulation Government;

Similarly, the use of a work in these two cases must neither affect the normal use of such works nor cause prejudice to the rights of the author or copyright holder, and must provide information being the author’s name and the source and origin of the work. Besides, in case of using published work without having to seek permission but royalties or remuneration must be paid shall not be applied to cinematographic works.

If the client needs any other information, requires for further legal advice, or dispute with others on IP matters, our Vietnam IP attorney, copyright lawyers in Vietnam at ANT Lawyers, we will be available for service.

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

 

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