What Conditions to File Divorce Petition in Vietnam

Divorce means termination of the husband and wife relation under a court’s legally effective judgment or decision.

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What is the condition of divorce petition in Vietnam?

Condition of divorce petition in Vietnam

Firstly, we need to know about subjects being entitled to request divorce settlement. That is husband or wife or both having the right to request divorce settlement from a Court; a parent or other relatives has the right to request divorce settlement from a Court when the spouse is unable to perceive and control his/her acts due to a mental disease or another disease and is concurrently a victim of domestic violence caused by his/her spouse which seriously harms his/her life, health or spirit. 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.

The divorce is divided into two cases, those are divorce by mutual consent and divorce at one party’s request.

Conditions of divorce by mutual consent: if both wife and husband request a divorce and both parties are really willing to divorce and have agreed upon the property division, looking after, raising, care for and education of their children on the basis of ensuring the legitimate interests of the wife and children, the court shall settle the divorce a court shall recognize the divorce by mutual consent; if the spouses fail to reach agreement or have reached an agreement which fails to ensure the legitimate interests of the wife and children, the court shall settle the divorce.

Divorce at one party’s request: if a spouse requests a divorce and the conciliation at a court fails, the court shall permit the divorce if there are grounds to believe that a spouse commits domestic violence or seriously infringes of the rights and obligations of the husband or wife seriously deteriorates the marriage and makes their common life no longer impossible and the marriage purposes unachievable. When the spouse of a person who is declared missing by a court requests a divorce, the court shall permit the divorce. For a parent or other relatives’ request for a divorce mentioned above, a court shall permit the divorce if there are grounds to believe that the domestic violence committed by one spouse seriously harms the life, health or spirit of the other.

Domestic violence acts is one of the important factors mentioned in unilateral divorce. Domestic violence acts and “serious condition, common life no longer impossible and the marriage purposes unachievable” are defined in Vietnam laws.

For divorce involving foreign elements, an important condition is permanent residence. First of all, marriage and family relation involving foreign elements means the marriage and family relation in which at least one partner is a foreigner or an overseas Vietnamese or in which partners are Vietnamese citizens but the bases for establishing, changing or terminating that relation are governed by a foreign law, or that relation arises abroad or the property related to that relation is located abroad. Two foreigners shall be settled a divorce in Vietnamese court if both of them reside permanently in Vietnam. 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 could be applied.  However, it is suggested to consult with civil or dispute lawyers in civil matters in the court proceeding to best protect the rights and interest especially involving property division and child custody.

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Public Hearing of Investigating and Applying Anti-Dumping Measures on Polyester Filament Yarn (AD10 case)

On April 6 2020, Minister of Ministry of Trade and Industry signed the Decision 1079/QD-BCT in the case of investigating and applying anti-dumping measures on Polyester Filament Yarn originating in the People’s Republic of China, the Republic of India, the Republic of Indonesia and Malaysia (AD10 case).

Anti-dumping Law Firm in Vietnam

Pursuant to Article 70, Law on Foreign Trade Management 2017 and Article 13, Decree no. 10/2018/ND-CP stipulated the details of some articles of the Law on Foreign Trade Management on trade defense measures, the Investigation Authority is going to hold a public hearing for AD10 case.

Specifically, the hearing will take place online via Meeting room no. 904 – 23 Ngo Quyen, Hoan Kiem, Hanoi at 9am – 12pm, August 30^th, 2021, by Hanoi time. The spoken and written language used in the public hearing is Vietnamese. The related parties have the right to use other languages, however, translation from that language into Vietnamese is required. Information and documents other than Vietnamese provided by the related parties must be translated into Vietnamese. The related parties must ensure the truthfulness, accuracy and responsibility before the law for the translated content.

Deadline for submitting registration and consultation content will be before 5pm, August 23^rd, 2021 by Hanoi time.

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Legal matters concerning marriages and divorces in Vietnam

Vietnam family laws covers all legal matters concerning marriages and divorces, including marriage registration procedures, and divorce procedures, matters concerning separate or joint ownership assets and property, child custody, child support, and dispute on related matters.

Vietnam marriage laws have developed during the past 40 years and are still connected with changes in the thinking of the Vietnamese society and are thereby not exempt from future amendments that might appear simultaneously with the changes in Vietnam’s fast emerging society. The legal fundamental basis for marriages in Vietnam is the Marriage and Family Law.  Some of the main points that are included in this law’s mission are for contributing to build and protect the marriage and family regime as well as to protect legitimate rights and interests of family members. The essential legal provisions of the Vietnam marriage law requires and determines: a required marital age for male is at least 20 years and female 18 years; marriages must be voluntary, progressive, monogamous marriages in which husband and wife are equal; marriages between partners of different nationalities, religions etc. are respected and legally protected but marriages between married people, people without civil act capacity, between the same direct blood line or within three generations, between (former) adoptive parents and children or parents- and children-in-law and stepparents and stepchildren, are forbidden. Although the marriage between persons of the same sex is not forbidden any more but the State shall not recognize it.

Furthermore, marriage or remarriages must be registered with the competent State bodies (registration offices) where either of the marriage partners resides. Vietnamese citizens living abroad shall refer to overseas Vietnamese diplomatic missions or consulates for services.  Unless otherwise provided by law, the provisions of the Marriage and Family law also are also applicable for foreigners involved in Vietnamese marriages.  In case a treaty to which the Socialist Republic of Vietnam is a contracting party contains provisions different from those of this Law, the provisions of such treaty prevail.

The registration procedures might differ in some points for foreigners because of the documents required from their home countries.  Papers issued, granted or certified by competent foreign agencies for use in the settlement of cases and matters of marriage and family shall be notarized, legalized, except cases eligible for exemption from consular legalization under treaties to which the Socialist Republic of Vietnam is a contracting party or on the principle of reciprocity. Foreigners must demonstrate that they are eligible for marriage in compliance with the law of their home countries. According to the Vietnam Marriage and Family law, foreigners enjoy the same rights and obligations like Vietnamese and Vietnam provides protection for the legitimate rights and interests of Vietnamese living abroad in marriage and family relations in accordance with the law.  In the case of a marriage between a foreigner and a Vietnamese, each one must abide by the legislation of his/her country on the marriage conditions. The law also bans marriages whereby foreigners take advantages related to human trafficking, sexually abuse against women.

The law on marriage and family has brought a positive change to the role of the family in Vietnamese society and the traditional values ​​of marriage and family. These legal provisions have contributed to the protection and perfection of a progressive marriage and family regime by creating legal standards that keep pace with the times but also respect long-standing traditional values ​​of Vietnam. However, Vietnam still lacks complex mechanisms to deal with all those involved and another problem is that some clauses are overlapping and are not clear enough to address outstanding issues such as: cohabitation system such as husband and wife, separated or surrogacy. Prenuptial agreements, premarital agreements or similar marriage contracts are not recognized in Vietnam. However, agreements on joint assets, or division of assets during marriage are recognized but certain procedures have to be followed.

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How Mediation and Labor Arbitration Councils Work in Settlement of Labor Disputes in Vietnam?

During and after the Covid-19 pandemic, the financial health of enterprises have been negatively impacted leading to management’s decision to reduce cost through termination of labour contract with employee. The illegal termination of labour contract could lead to disputes between employer and employee which sometime would cost the employer more than it gains. It is important for the employer to engage with labour lawyers to consult before taking the decision to consider factors that would involve. After disputes arise, mediator or labour arbitration councils could be used for resolving disputes.

Arbitration Law Firm in Vietnam

Individual labor disputes shall be settled through mediation by labor mediators before being brought to the Labor arbitration council or the Court, except for the following labor disputes which mediation is not mandatory: disputes over disciplining under dismissal or unilateral termination of employment contracts; disputes over damages and allowances upon termination of employment contracts; disputes between a domestic worker and his/her employer; disputes over social insurance in accordance with social insurance laws, disputes over health insurance in accordance with health insurance laws, disputes over unemployment insurance in accordance with employment laws; disputes over insurance for occupational accidents and occupational disease in accordance with occupational safety and hygiene laws; disputes over damages between an employee and enterprises, organization that dispatches the employee to work overseas under a contract; disputes between the outsourcing employee and the employer using outsourcing employee.

The mediator shall complete the mediation process within 05 working days from the receipt of the request from the requesting parties or the authority. Both disputing parties must be present at the mediation meeting. The disputing parties may authorize another person to attend the mediation meeting.

In case the two parties reach an agreement, the labor mediator shall make a written record of successful mediation which bears the signatures of the disputing parties and the labor mediator. In case the two parties do not reach an agreement, the labor mediator shall recommend a mediation option for the disputing parties to consider. Where the two parties do not agree with the recommended mediation option or where one of the disputing parties is absent for the second time without a valid reason after having been legitimately summoned, the labor mediator shall make a record of unsuccessful mediation which bears the signatures of the present disputing parties and the labor mediator.

The disputing parties shall be entitled to request the settlement from Labor arbitration councils in the following cases: a disputing party fails to perform the agreements specified in the record of successful mediation; mediation is not mandatory; the labor mediator fails to initiate the mediation by the deadline; the mediation is unsuccessful.

After the Labor arbitration council has been requested to settle a dispute, the parties must not simultaneously request the Court to settle the same dispute.  If within 07 working days from the receipt of the request, an arbitral tribunal is not established; or within 30 working days from the establishment of the arbitral tribunal, it fails to issue a decision on the settlement of the labor dispute, parties shall be entitled to request the settlement from the Court. In case a disputing party fails to comply with the decision of the arbitral tribunal, the parties are entitled to bring the case to Court.

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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.

Anti-dumping Law Firm in Vietnam

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.

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How Licensing of Trademark Works?

 

Licensing of industrial property subject in general or of trademark in specific is regulated in Intellectual Property law. Accordingly, in trademark licensing, the owner (licensor) grants permission to another (licensee) to use that trademark on mutually agreed terms and conditions. The must be established in written form to avoid dispute in trademark licensing in Vietnam.

Trademark licensing in Vietnam

Accordingly, licensing of trademark includes the following types: exclusive contract, non-exclusive contract; sub-license contract.

Firstly, exclusive contract means a contract under which, within the licensing scope and term, the licensee shall have the exclusive right to use the licensed trademark while the licensor may neither enter into any trademark license contract with any third party nor, without permission from the licensee, use such trademark.

Secondly, non-exclusive contract means a contract under which, within the licensing scope and term, the licensor shall still have the right to use the trademark and to enter into a non-exclusive trademark license contract with others.

Thirdly, trademark sub-license contract means a contract under which the licensor is a licensee of the right to use such trademark pursuant to another contract.

In any type of the contracts, it is required to have the following contents: full names and addresses of the licensor and of the licensee; grounds for licensing; contract type; licensing scope including limitations on use right and territorial limitations; contract term; licensing price; rights and obligations of the licensor and of the licensee.

Besides the above contents, the parties also need to take note on the validity of this contract. Different from assignment contract of trademark when it is required to register at National office of Intellectual Property of Vietnam to take effect, the licensing contract of trademark does not required this kind of registration for taking effect. Licensing contract shall automatically be terminated upon the termination of the licensor’s trademark right.

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Trademark consultant in Vietnam

 

Trademarks are an important part of client company’s competitive edge. ANT Lawyers IP practice helps you protect these valuable intellectual assets, through trademark registration, oppositions, and other trademark protection resolutions in Vietnam.

Trademark consultant in Vietnam

In particular, ANT Lawyers IP practice offers client services as following:

-Trademark Availability Searches

-Trademark Watch Service

-Trademark Filings & Trademark Registration in Vietnam

-Renewals

-Recordals of Amendments, Assignments, Merger Agreements, Licences

-Filing Opposition & Responses

Our trademark attorneys in Vietnam will process client’s trademark registration by carrying out the following steps:

-Providing our clients with cost estimates for searching and filing applications

-Conducting comprehensive clearance searches including analysis about registration of the required trademarks and providing advice on the most appropriate and cost-effective method to obtain a clearance

-Preparing and filing trademark applications, including obtaining appropriate legalization of documents and translations (if applicable)

-Responding to objections raised by Registrars and potential third party oppositions

-Negotiating settlement agreements when necessary to overcome prior marks

-Obtaining a Certificate of Trademark Registration once your trademark is approved

-Recording changes in name and address of proprietor, assignments, licenses and renewals of trademarks

-Providing solutions for trademark protection in Vietnam.

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Dispute Resolution in Vietnam Through Arbitration

 

Dispute resolution methods are litigation, negotiation, mediation and arbitration. Handing disputes requires litigation dispute law firm in Vietnam with dispute lawyers in Vietnam having experience and knowledge to provide resolutions to complex cross-border issues, commercial and civil disputes.

Arbitration Law Firm in Vietnam 

In the current business environment, most business agreements could contain a clause stipulating that disputes arisen must be resolved in arbitration.  For a dispute to be referred to arbitration, there must be a valid arbitration agreement in writing, either as an arbitration clause within a contract or a separate agreement.  If the agreement is included within the context of a contract, the arbitration clause is considered independent, and any modification, extension, or termination of the contract does not affect the validity of the arbitration clause. Vietnamese law allows for a written arbitration agreement to take the form in any written form, so long as the writing clearly indicates the parties’ intent to resolve any dispute via arbitration. If a dispute falls within the scope of a valid arbitration agreement, but a party attempts to initiate court proceedings, the residing court does not have jurisdiction over the matter, and must drop the case. Moreover, an arbitration agreement does not have to stipulate specific dispute matters and/or the arbitration organization authorized to resolve disputes without supplemental agreement.  Even if there is a valid arbitration agreement, Vietnamese Arbitration Law stipulates that in order for a dispute to go to arbitration, it must also fit into one of three categories:

(1) disputes arising from “commercial activities”;

(2) disputes where at least one party is engaged in commercial activities;

(3) other disputes where the law stipulates that arbitration is a permissible means of resolution.

In category (1), the term “commercial activity” is defined in Commercial Law No. 36-2005-QH11 (31 December 2005) as “activity for profit-making purposes comprising the purchase and sale of goods, provision of services, investment, commercial enhancement, and other activities for profit-making purposes.”  The types of disputes that often fall into the second category are noncommercial disputes, such as civil disputes, where at least one party to the dispute is engaged in commercial activities. However, this category does not apply in disputes between a good/service provider and a consumer. In this case, the law allows the party to choose between litigation and arbitration. Even the agreement includes a standard arbitration clause in the supply of goods or services contract, the dispute may not be arbitrated without the consumer’s consent. The final category of disputes permissible for arbitration gives legislators discretion to expand or maintain the types of disputes resolved through arbitration.  An example of a category (3) dispute is a dispute arising from investment activities governed by the Law on Investment.

Arbitration has become an extremely popular method of dispute resolution, as many businesses prefer it over the high costs of litigation.

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Register industrial design in Vietnam

 

Register industrial design in Vietnam is necessary for individual and organization.

Industrial design is the outward appearance of a product embodied in three-dimensional configuration, lines, colors or a combination of such elements. An impressed appearance shall increase the value of products, the attraction to customers and the distinction from other same products. In fact, however, appearances of products can be copied easily if there no legal protection and prior prevention. Filling industrial design in National Office of Intellectual Property shall guarantee that your product appearance is protected from violation of others.

Register industrial design in Vietnam

With highly professional staff and great experience in IP aspect in Vietnam, ANT Lawyers would like to offer you Industrial Design Filing service as follow:

ANT Lawyers service in Industry Design

Our services in this area include:

a. Evaluate the possibility of registration and use of Industrial Design;

b. Search for information on the registration and use of Industrial design;

c. File application and proceed with the legal procedures on the registration of Industrial design;

d. Advise and proceed with the legal procedures on the record of assignment of Industrial Design application;

e. Advise and proceed with the legal procedures on the record of amendment of Industrial Design application such as: name and address of the applicant;

f. Advise and proceed with the legal procedures on the amendment of the Industrial Design Certificate on the basis of transferring of ownership, merging companies; record of change of name and address of the Certificate holder;

g. Advise on the renewal of validity of the exclusive Industrial Design Certificate.

h. License and Assignment;

i. Opposition against proceedings;

j. Appeal; cancellation; invalidation;

 

How to file Industrial Design in Vietnam?

Required documents:

i. Original Power of Attorney from the Applicant(s);

The POA must be signed by an applicant or duly authorized representative on behalf of the Applicant (no further notarization or legalization is required);

The POA is required at the time of filing, please therefore arrange to have and provide us with scan copy via fax or email first and original one can be followed within one [01] month later.

ii. Full name and address of applicant(s);

iii. Full name, address and nationality of designer(s);

iv. Drawing of design;

The drawings of design must show clearly 7 views (separately in jpeg. format is preferable): perspective view, front view, rear view, right view, left view, top view, bottom view, at a same scale; and the minimum resolution is 300DPI.

v. Original certified true copy of priority document (if any);

vi. Salient novelty features description in which showing the using purpose or Lorcano classification of design, if any.

Time and procedures:

The ID application will be examined by National Office of Intellectual Property of Viet Nam (NOIP) with ID Examination Procedure as below:

i. Formality examination: Under Intellectual Property Law of Vietnam, the above application will be examined as to form within one [01] month as from the filing date or date entering the national phase. If the ID application meets the requirements as to form, the NOIP will issue a decision of formality acceptance and then the application will be further processed.

ii. The Substantive Examination: The above application will be examined as to substance within 12 months.

• Notification of the Substantive Examination Results.

• The Decision of Refusal or Request to pay fee.

• Issuing the ID of Invention

Note: The deadline for filing design application in Vietnam on the basis of claiming priority right under Paris convention is 6 months counted from the earliest priority date;

iii. The total time from filing to registration in straightforward case is 12-14 months. However, in practice, this duration can be extended further 3-6 months;

ID Term and Maintenance:

A registered industrial design is given an initial protection period of 5 years from the date of filing and is extended for two further consecutive terms of 5 years each. The maximum protection period is 15 years.

Hope this helps!

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