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Issue 5, Volume 6, 2013
BANKING – TAX – FINANCE ........................................................................................ 2
1. New interest rate for investment credit loan, export credit loan of
the state ...................................................................................................................... 2
2. Scheme of handling bad debts of credit institutions system and
establishment of Vietnam Assets Management Company ......................................... 2
3. Decree 54 on investment credit and export credit ...................................................... 4
4. Loans for housing assistance ...................................................................................... 5
5. Clarifying the term “affiliate” under Circular 121/2012/TT-BTC ............................. 6
CORPORATE COMPLIANCE ......................................................................................... 7
6. Extending the statute of limitations for re-registration of
enterprises and business scope of non-reregistered enterprises. ................................. 7
7. Ministry’s guidelines on conditions for listing shares of companies
formed after the consolidation or merger ................................................................... 8
8. Licenses of telecommunication services .................................................................. 10
9. Lists of drugs and vaccines, biological products, microorganisms
and chemicals that used in veterinary treatment allowed for use and
distribution in Vietnam ............................................................................................ 11
10. Lottery business operation ....................................................................................... 12
LABOUR ......................................................................................................................... 13
11. Legal framework for labour outsourcing.................................................................. 13
12. New Decree detailing the new Labour Code on wages ............................................ 15
13. New guidelines on labour dispute settlement and strikes under the
labour code 2012 ...................................................................................................... 16
14. Guidance on the new Labour Code regarding working hours,
breaks, and occupational hygiene and safety ........................................................... 17
15. Government’s Decree 44/2013/ND-CP on labor contracts ...................................... 19
INFRASTRUCTURE ...................................................................................................... 20
16. Urban Design ........................................................................................................... 20
DISPUTE RESOLUTION ............................................................................................... 21
17. Determination of administrative decisions – subject to filing of
administrative lawsuit .............................................................................................. 21
FIRM NEWS ................................................................................................................... 23
1. LNT & Partners to be in charge of the Policy Roundup of the
Vietnam Investment Review .................................................................................... 23
2. LNT & Partners becomes an Outlook sponsor of the M&A
Vietnam Forum 2013 ............................................................................................... 23
3. LNT & Partners obtains ruling from the State Securities
Commission of Vietnam regarding corporate guarantees and
shareholder loans under Circular No. 121/2012/TT-BTC ........................................ 24
4. LNT & Partners is seeking a ruling from the Supreme Court
regarding interpretation of “administrative decisions” that are
subject to filing of an administrative lawsuit ........................................................... 24
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BANKING – TAX – FINANCE
1. New interest rate for investment credit loan, export credit loan of the
state
On the 04 June 2013, the Ministry of Finance
passed Circular no. 77/2013/TT-BTC imposing
new interest rate for investment credit loan, export
credit loan of the state and the difference of the
interest rate calculated for post-investment
support. Circular 77 effectively replaces Circular
no. 09/2013/TT-BTC and Circular 104/2012/TT-
BTC.
In details, the interest rate of State investment
credit loan in Vietnam dong is reduced from 12%
per year to 11.4% per year. The interest rate for
export credit loan also enjoyed a reduction,
dropping from 10.2%/year to 9.3%/year. The
difference of the interest rate calculated for post-
investment support for the loan project in Vietnam
dong remained 2.4%/year.
This Circular’s target is to remove or at least
reduce difficulties for business production. In fact,
during the economic crisis, many enterprises went
out of business along with several frozen project.
Clearly, the Ministry of Finance is seeking to
support the market, making Vietnam a more
desirable investment destination.
This Circular comes into effect from the date of issue.
2. Scheme of handling bad debts of credit institutions system and
establishment of Vietnam Assets Management Company
On 31 May 2013, the Prime Minister has approved
one of the most important schemes regarding the
banking, finance industries in the recent years.
Vietnam became increasingly concerned with bad
debts over the past few years. Such debt, along
with the world wide economic downturn, has
made significant impact on the country’s
economy. Decision 843/QD – TTg is a long
awaited decision that approved the scheme of
“handling bad debts of credit institutions system”
and Vietnam Assets Management Company
(VAMC) shall be established accordingly.
Handling bad debts of credit institutions system
The objective of the Scheme is clearly defined: to
expand credit grant at rational rates, to contribute
in removing difficulties for business production, to
promote economic growth and stabilize macro-
economy; improve the liquidation and increase the
safety, healthy and effective operation of credit
institutions, currency market.
This part of the scheme imposed several solutions
to handle bad debts and prevent limit the
increasing of bad debts in the future. Suggested
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solutions include: strict control and reduction on
operational expenses, transferring debts into
capital etc.
The Scheme made several detailed solutions on
mechanism and policy to various Ministries. The
State Bank of Vietnam was requested to conduct
investigation and closely supervise the
restructuring of bad debts by credit institutions.
Concurrently, local departments of Planning and
Investment is requested to accelerate disbursement
progress for projects with capital from the State
budget. The Ministry of Finance shall assume the
responsibility to encourage business development
by accelerating improvement of infrastructures
and facilities. Furthermore, a 50% reduction in
land rents shall be applicable to economic
organizations, households and individuals who
rented land from the State and the payable rents
(as prescribed in Decree 121/2010/ND-CP) were
doubled in comparison with the payable rate in
2010 (as prescribed in policies prior to Decree
121/2010/ND-CP). In case where land rents after
being reduced are still more than twice in
comparison with payable land rents of 2010, they
will be further reduced land rents till the level
equal to twice payable land rents in 2010.
Furthermore amendments and supplementing
regulations guiding on procedures for reduction of
land rents must be made in more simple way and
favourable direction for implementation.
VAMC
VAMC shall be established to be a 100% state-
owned enterprise, subject to the state management,
directs inspection and monitoring from the State
Bank of Vietnam. The Charter Capital of VAMC
is 500 billion VND and can be adjusted when
necessary.
VAMC is scheduled to start operations in the
second quarter of this year. It will issue special
bonds to buy debts from banks. The bonds will be
issued in Vietnam Dong with the term of 5 year at
maximum and the coupon rate of zero per cent.
The lenders can use such bonds as collateral to
borrow from central bank. Enterprises selling
debts to VAMC will be able to take out new loans
from banks.
The Asset Management Company shall buy the
bad debts with the following conditions:
a) The credit institution’s bad debts
including the ones in activities of credit granting,
purchase of corporate bonds, trusted purchase of
corporate bonds and trusted credit granting and
other activities as prescribed by the State Bank.
b) Bad debts with collateral;
c) Bad debts and collateral must be legal
with valid documents and papers;
d) Loan customer still exists;
e) The balance of bad loans or outstanding of
loan customer is not lower than the level
prescribed by the State Bank.
VAMC’s priority is to support loan customers. As
the owner of the loan, they can adjust the term of
debt payment term, time limit for debt payment in
conformity with production and business
conditions of loan customers. Other measures for
supporting loan customers include: adjusting
interest of purchased loan in conformity with
solvency of loan customers and market conditions
or reducing partly or exempting whole interest
amounts which are overdue for payment.
VAMC reserved the rights of the owner/secured
party with respect to loan customers, obligors to
pay debt and the securers with the aim to recover
debts and collateral such as: urging, requesting for
debt payment or suing the loan customers at court
or filing an application to request Court to
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implement procedures for bankruptcy as
prescribed by law and so forth.
The State aims to reduce the rate of bad debt in
credit institutions to below 3%. Any Credit
institutions with bad debts rate higher than 3%
shall either be inspected by the State Bank or be
requested to hire an independent audit company or
valuation company to reassess the quality and
value of its assets, equity capital, and charter
capital. Based on the result of inspection,
independent audit or valuation, the credit
institution shall sell bad debts to VAMC to ensure
a safe bad debt ratio, make provisions, and comply
with the adequacy ratios as prescribed by the State
bank; restructure itself according to a plan
approved by the State bank.
On the basis of result of valuation of asset and
inspection, the credit organizations may apply the
following measures:
Selling bad debts to the VAMC so that the rate of
bad debt/total outstanding debt does not exceed
3%
Credit institutions must set up adequate provision
for risks while ensuring to meet adequacy ratio
prescribed by the State Bank
Restructuring the credit institutions by plan
approved by the State Bank.
What to expect from the establishment of VAMC
is strongly debated over. Many economists believe
this solution shall only have positive effect in the
short run. After the term of the special bonds
(maximum of 5 years) unresolved loan must be
bought back by credit institutions. In other words,
credit institutions’ bad debt situation would remain
unchanged, or possibly turn worse with more debts
in hand; unless within five years the loan
customers can make payments to the debts.
3. Decree 54 on investment credit and export credit
On 22 May 2013, the Government has issued the
Decree 54/2013/ND-CP (“Decree 54” or the
“Decree”) to supplement the Decree 75/2011/ND-
CP on investment credit and export credit of the
State.
Firstly, the Decree widens the scope of borrowers,
accordingly the enterprises which needs loan to
buy livestock feed for export fisheries can apply
for export credit. The maximum loan amount for
such enterprises come up to 85% of the value of
the plan on buying livestock feed for export
fisheries, which has been approved by the Vietnam
Development Bank (VDB); however, each loan
does not exceed 15% of real charter capital of
VDB. Each loan term shall depend on the loan
recovery capability of each plan, which does not
exceed 12 months. The particular loan amount,
loan term of each plan shall be decided by the
General Director of VDB.
Secondly, the Decree also adds an article on
extending loan. If a project meets the following
conditions, the loan term shall be extended up to
(a) 15 years, if:
i. the project is on electricity
production, cement production,
steel production, clean water
supply, environment;
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ii. the project is classified in A, B
group; and
iii. the investor suffers from loss in
2011 and 2012, unable to balance
capital to return loan as in the
credit agreement with VDB.
(b) 36 months, if:
i. the borrower operation is exporting
vegetable, fishery;
ii. The borrower suffers from loss in
2011 and 2012, unable to balance
capital to return loan as in the
credit agreement with VDB.
Details on dossiers, procedures to extend loan term
and decision for extension of loan term of each
project will be provided or made by the VDB.
This Decree took effect from the date of issue.
4. Loans for housing assistance
On 15 May 2013, the State Bank of Vietnam
issued Circular No. 11/2013/TT-NHNN
stipulating provision of supporting loans for
housing (“Loans”) in order to implement the
Government’s Resolution No. 02/NQ-CP dated
January 07, 2013.
i. The Circular specifies list of the State-
owned banks allowed to provide Loans
as lenders, including:
ii. The Vietnam Bank For Agriculture
and Rural Development
(AGRIBANK);
iii. The Bank for Investment and
Development of Vietnam JSC (BIDV);
iv. The Vietnam Joint Stock Commercial
Bank for Industry and Trade
(VietinBank);
v. The Joint Stock Commercial Bank for
Foreign Trade of Vietnam
(Vietcombank); and
vi. The Mekong Housing Bank (MHB).
Pursuant to Circular 11, investors who invest in
social housing construction projects or have social
housing construction projects converted from
commercial housing projects (“Applicable
Projects”) must satisfy all following conditions in
order to be granted with Loans:
i. Being investors who own the
Applicable Projects as announced by
the Ministry of Construction in each
period;
ii. Having the minimum capital as
specified by the lender but not
exceeding than 30% of total
investment level of the Applicable
Project;
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iii. Making representation that the investor
has not received any supporting loans
from the bank to implement the
Applicable Project; and
iv. Loans must be used for paying unpaid
expenses of Applicable Projects
(excluded tax liabilities) which have
been arisen as from 7 January 2013.
In addition to the aforementioned conditions, the
investors must fulfill the conditions as prescribed
in the Circular 07/2013/TT-BXD recently passed
by the Ministry of Construction dated 15 May
2013.
Interest rate of Loans which must not exceed (6%)
six percent will be reviewed annually by the State
Bank of Vietnam. Interest rate applied in 2013 will
be 6%. The applicable term of Loans will be (5)
five years.
Circular 11 comes into effect on June 01, 2013.
5. Clarifying the term “affiliate” under Circular 121/2012/TT-BTC
The recently passed Circular 121/2012/TT-BTC
on 26 July 2012 regarding corporate management
applicable to public companies has stirred
confusion among investors. The term, “affiliated
persons”, in section 3, Article 24 of the Circular is
often the source of this confusion: “…Public
companies must not grant loans or guarantees to
their shareholders and affiliated persons.” It was
unclear as to which “persons” are affiliated. In
other words, are such “affiliated persons”
affiliated to (i) public companies, and/or (ii)
shareholders of public companies? Can affiliated
companies of a public company obtain loans and
guarantees from these public companies?
The term “affiliated persons” or “affiliates” were
defined in the Law on Securities to include:
a) Fathers, adoptive fathers, mothers,
adoptive mothers, spouses, children,
adopted children or blood siblings of
individuals;
b) Organizations of which individuals are
staff members, directors or general
directors, or owners of over ten percent
of outstanding voting stocks;
c) Members of boards of directors or
boards of control, directors or general
directors, deputy directors or deputy
general directors, and other
management titles of such
organizations;
d) Persons who, in relations with others,
directly or indirectly control or are
controlled by the latter, or submit,
together with the latter, to the same
control;
e) Parent companies and affiliate
companies; or
f) Contractual relations in which one
party represents the other party.
However, according to an interpretation by the
State Securities Commission of Vietnam, this
clause should be understood that shareholders of
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public companies and affiliates of such
shareholders cannot obtain any loans or guarantees
from the public companies.
This means that affiliated companies of public
companies, provided that they are not affiliated to
any shareholder of such company, can obtain loans
and guarantee from their mother company.
CORPORATE COMPLIANCE
6. Extending the statute of limitations for re-registration of enterprises
and business scope of non-reregistered enterprises.
On the 20 June 2013, The National Assembly
passed Law no. 37/2013/QH13 amending and
supplementing Clause 2 of Article 170 of the Law
on Enterprises.
Originally, foreign-invested enterprises established
before the effective date of the Law on Enterprises
must either re-register within two years as from
the effective date of the Law on Enterprises or
otherwise carry on with business activities within
the business lines and the duration stipulated in the
investment licenses. In other words, if foreign-
invested enterprises fail to re-register within two
years from the date which the Law on Enterprises
takes effect, they must file for dissolution when
the durations stated in their investment licenses
expire.
Law no.37 demolished the two-year threshold.
Foreign-invested enterprises established prior to 1
July 2006, and expired operational duration as
prescribed in the investment licenses after 1 July
2006, have not filed for enterprise dissolution and
wish to continue operation, now can re-register
prior to 1 February 2014. In this case, the re-
registration takes effect on the expiry date of
operation stated in the investment licenses.
For foreign-invested enterprises which opted for
not making re-registration, they can now expand
their business lines according to the new law. As
long as such adjustments and supplements do not
change the operational duration stated in the
original investment certificate, re-registration is
unnecessary. Such adjustment and
supplementation of business lines shall comply
with the existing provisions of law at time of
adjustment and supplementation. In case that
expansions of business line lead to a change in
operational duration, those enterprises must re-
register before 1 February 2014.
Law no. 37 filled in the loop-hole of the Law on
Enterprises. Many foreign invested enterprises
now can continue their operation in Vietnam for
many years to come. However, we have to wait for
guiding Decrees on the new Law, as detailed
procedures for re-registration are to be provided
by the Government.
This Law takes effect on 01 August 2013
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7. Ministry’s guidelines on conditions for listing shares of companies
formed after the consolidation or merger
On 29 May 2013, the Ministry of Finance passed
Circular No. 73/2013/TT-BTC to provide
guidelines for listing shares of joint stock
companies formed after the consolidation or
merger.
In general, it is obviously to see that conditions for
securities listing at the Hochiminh Stock Exchange
(HOSE) and the Hanoi Stock Exchange (HNX)
under this Circular already provided under the
Government’s Decree No. 58/2012/ND-CP dated
20 July 2012. Accordingly, a joint stock company
applies for listing its securities must meet the
conditions as follows:
Conditions (1) At the time of listing,
having its paid-up charter capital of VND
120 billion or more (if listing at HOSE) or
the paid-up charter capital of VND 30
billion or more (if listing at HNX)
according to the company’s accounting
book;
Conditions (2) Having operated as a
joint stock company for at least 2 years (if
listing at HOSE) or for at least 1 year (if
listing at HNX) by the time of listing; the
rate of after-tax profit of return on equity
(ROE) of at least 5% in the latest year,
and being profitable in 2 consecutive
years preceding the year of listing; there is
no overdue debt for more than 1 year;
there is no accumulated loss by the year of
listing; complying with laws and
regulations on accounting and financial
reporting;
Conditions (3) Publicizing all debts
due to the company of members of the
Management Board, the Controlling
Board, Director or General Director,
Deputy Director or Deputy General
Director, Chief Accountant, major
shareholders and their related persons;
Conditions (4) At least 20% of its
voting shares owned by at least 300 minor
shareholders;
Conditions (5) The following persons
must undertake to hold 100% of their
shares for 6 months from the date of
listing, and 50% of their shares for the
next 6 months (excluding the State-owned
shares which are represented by them):
a) Shareholders whose ownership
represented by members of the
Management Board, Controlling
Board, Director (or General Director),
Deputy Director (or Deputy General
Director), and Chief Accountant of the
company; and
b) Major shareholders are related to
members of the Management Board,
Controlling Board, Director (or
General Director), Deputy Director
(or Deputy General Director), and
Chief Accountant of the company.
Conditions (6) Duly registering for
listing as prescribed.
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However, the Circular 73 provides how to apply
such above conditions with respect to companies
formed in the case of consolidating or merging
(the “incorporated company”). In particular:
Circumstance (1) In the case of
consolidating 2 listing companies or more
The incorporated company must meet the
conditions (1), (3), (4), (5), and (6) as above. It is
required to apply for the listing registration within
3 months from the date of its business registration
certificate.
Circumstance (2) In the case of
consolidating 2 companies or more, in
which there are at least 1 listing company
and at least 1 non-listing company:
The incorporated company must meet the
conditions (1), (3), (4), (5), and (6) as above.
In addition, the non-listing companies must
meet the condition (2) as above. The
incorporated company is required to apply for
the listing registration within 3 months from
the date of its business registration certificate.
Circumstance (3) In the case of
consolidating 2 companies or more which
are all non-listing companies:
The incorporated company must meet all
conditions from (1) to (6) as above.
Circumstance (4) In the case of merging
companies in which the absorbed
companies and surviving companies are all
listing companies:
The incorporated company must proceed to amend
the listing registration.
Circumstance (5) In the case that the
surviving company is listing company and
the absorbed company is non-listing
company:
The incorporated company will be allowed to
register the supplemental listing with respect to the
exchange shares of the absorbed company when:
i. The absorbed company meets the
Condition (2) as above; or
ii. If the absorbed company cannot meet
the Condition (2), it must have the
ROE rate of at least 5% according to
the audited annual consolidated
financial statement or the audited
semi-annual consolidated financial
statement (to be prepared after the date
of merger) of the incorporated
company, or the positive ROE rate
according to the audited annual
consolidated financial statement (to be
prepared after the date of merger) and
larger than the ROE rate of the
surviving company according to its
audited financial statement in the latest
year; or
iii. If the absorbed company and the ROE
rate of the incorporated company do
not meet the (i) and (ii), then the
additional shares to be issued in
proportion to the absorbed company’s
capital will merely be listed after 1
year from the date of business
registration certificate of the
incorporated company.
Circumstance (6) In the case that the
surviving company is non-listing company:
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The incorporated company must meet all
conditions from (1) to (6) as above.
Moreover, the Circular 73 provides set of dossiers,
and also templates of application dossiers for
listing registration of incorporated companies, but
detailed procedures will be provided by the HOSE
and HNX.
This Circular comes into effect from 15 July 2013.
8. Licenses of telecommunication services
On 13 May 2013, the Ministry of Information and
Communications promulgated Circular No.
12/2013/TT-BTTTT (“Circular 12”) providing
instructions on license of telecommunication
services.
Pursuant to Circular 12, enterprises providing
telecommunication services (“Provider”) must
have (i) a license for establishing a public
telecommunication network (“Establishment
License”) and/or (ii) a license for providing
telecommunication services (“Service License”).
Particularly, Service License is required for all
Providers; meanwhile, Establishment License is
required only to those who provide services with
network infrastructure. Dossiers for issuing the
Establishment License and Service License can be
consolidated such that these two licenses can be
obtained at once.
The Circular stipulates various requirements
regarding financial capacity, organization, human
resource, technique, business method, and
infrastructure safety to obtain Establishment
License and Service License.
In the course of business, Providers must amend
the Service License due to:
(i) change in the their names;
(ii) change in the scale of the terrestrial
public telecommunications network
within the area or country;
(iii) supplement new telecommunication
services to the Service License,
whereby the competent authority to
license these services is the authority
that issued the existing license; and
(iv) Suspend licensed telecommunications
service.
Notwithstanding, the following changes must be
notified to the Vietnam Telecommunication
Authority without amending Service License:
(i) Change in the address of providers;
(ii) Change in the legal representative of
providers;
(iii) Change in the charter capital or
investment capital providing that these
changes comply with the requirements
on legal capital; and
(iv) Change in the contribution ratios
between investors, providing that the
requirements of foreign investment
and requirements of ownership
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prescribed by applicable laws are still
fulfilled.
Provider is required to obtain a new Service
License due to:
(i) a change in the investors of the
Providers;
(ii) a division, separation, consolidation,
merger or transformation of the
Provider;
(iii) a change in the scale of the network
within a province, area, or country;
(iv) a change in demand for
telecommunication numbers or radio
frequencies, whereby the feasibility of
the distribution of telecommunication
numbers and radio frequencies must be
determined accordingly; and
(v) The supplement of new
telecommunication services to the
Service License, and the competent
authority to license these services is
not the authority that issued the
existing license.
Providers who had obtained a license for
establishing a public telecommunications network
and providing telecommunications services or the
license for providing telecommunications services
before the effective date of Decree No.
25/2011/ND-CP must apply to replace these
licenses with the Establishment License or the
Service License.
Circular 12 comes into effect from 1 July 2013.
9. Lists of drugs and vaccines, biological products, microorganisms and
chemicals that used in veterinary treatment allowed for use and
distribution in Vietnam
On 31 May 2013, the Ministry of Agriculture and
Rural Development promulgated Circular No.
28/2013/TT-BNNPTNT published list of drugs
and vaccines, biological products,
microorganisms, and chemicals used in veterinary
treatment that are allowed for use and distribution
in Vietnam. Under this circular, the list is
classified into categories for products to be (i)
produced domestically, (ii) repackaged, and (iii)
imported from various countries.
The list is created based on registration of
enterprises according to details of each product. In
the case of change in composition, formula,
pharmaceuticals, way of taking drugs,
manufacturing method or process resulting in
change of product quality, such products must be
re-registered with the Department of Animal
Health, Department of Aquaculture in accordance
with the Ordinance of Veterinary Medicine
no.18/2004/PL-UBTVQH11 dated 29 April 2004
and Decree 33/2005/ND-CP dated 15 March 2005.
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This Circular replaces the following circulars:
a. Circular 31/2011/TT-BNNPTNT dated
21 April 2011 of the Ministry of
Agriculture and Rural Development;
b. Circular 32/2011/TT-BNNPTNT dated
21 April 2011 of the Ministry of
Agriculture and Rural Development;
c. Circular 77/2011/TT-BNNPTNT dated
4 November 2011 of the Ministry of
Agriculture and Rural Development;
d. Circular 15/2012/TT-BNNPTNT dated
30 March 2012 of the Ministry of
Agriculture and Rural Development;
and
e. Circular 58/2012/TT-BNNPTNT dated
7 November 2012 of the Ministry of
Agriculture and Rural Development.
The Circular 08 comes into effect as of 15 July 2013.
10. Lottery business operation
On 04 June 2013, the Ministry of Finance issued
Circular 75/2013/TT-BTC detailing on lottery
business operation, which replaces Circular
65/2007/TT-BTC dated 18 June 2007.
Organizations issuing lottery tickets shall be
entitled to issue 3 kinds of lottery products
including conventional lottery (5-digit or 6-digit
ticket), bingo lottery and instant result lottery. For
each kind, lottery tickets shall comply with the par
values permitted to publish. The lottery tickets
shall only be distributed to customers directly or
through lottery agents. Other ways of distributing
lottery tickets are prohibited, including selling via
telephone (landline or mobile), electrical devices,
internet and other communication means.
Pursuant to this Circular, lottery agents can be
operated by individuals or organizations bounding
by written agreement with lottery companies.
Particularly, agent of a lottery company being an
organization must be:
(i) Being economic organization that are
duly established and operate in
Vietnam;
(ii) Having no contributed capital from
Chairmen, General Managers or
Managers, Deputy General Managers
or Deputy Managers, Chief
Accountants or staff taking in charge
of accounting matters, Controllers,
heads and deputy heads of operational
departments of such lottery company
or other lottery companies based in the
same geographical area;
(iii) Having no contributed capital from
spouses, fathers, adoptive fathers,
mothers, adoptive mothers, children,
adoptive children, siblings or adoptive
siblings of Chairmen, General
Managers or Managers, Deputy
General Managers or Deputy
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Managers, Chief Accountants or staff
taking in charge of accounting matters,
Controllers, heads and deputy heads of
operational departments of such lottery
company or other lottery companies
based in the same geographical area;
(iv) Complying with requirements on
payment representation in accordance
with laws on secured transactions in
order to ensure its payment liability for
such lottery company;
(v) Making commitments to fully comply
with regulations passed by such lottery
company.
Payments for lottery tickets must be fully paid to
lottery companies by agents when:
(i) Agents receives lottery tickets; or
(ii) Within a time limit as follows,
provided that agents are required to
make secured transactions with lottery
companies in accordance with laws on
secured transactions:
With respect to conventional
lottery or bingo lottery: within the
21 days from the date of issue;
With respect to instant lottery:
once a month or more than once a
month, agents must make
payments of all tickets sold in such
period.
Furthermore, the promotional activities are
prohibited, including:
(i) Reducing the sale price of lottery
tickets;
(ii) Giving lottery tickets free of charge;
(iii) Giving gifts in kinds, in cash or being
vouchers/coupons so that giving
benefits to customers;
(iv) Increasing value of prizes more than
the value prescribed by the State in
rules of participation in winning prizes
and rate of paying prizes;
(v) Selling lottery tickets alongside reward
programs; and
(vi) Other ways of promotion.
This circular will become effective from 01 October, 2013.
LABOUR
11. Legal framework for labour outsourcing
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On 22 May 2013, the Government promulgated
Decree No. 55/2013/ND-CP (“Decree”),
stipulating license for labour outsourcing and
conditions for operating this service.
In reality, demand of labor outsourcing
commenced a long time ago. However, the Labor
Code 2007 did not have any regulations for this
operation. Until the National Assembly approved
the Labor Code 2012, enterprises are allowed to
provide this kind of service, provided that the
following conditions must be met:
1) Service provider must have VND 2
million as legal capital during its
operation
This condition is proved by (i) Documents
evidencing the capital contribution of the
owners (i.e. minutes of capital contribution of
the founding members with respect to joint
stock company or multiple members limited
liability company; decision of capital
allocation of owner of single member limited
liability company, investment capital register
of owner of private enterprise or single
member limited liability company in which it
owner being individual); and (ii) a
confirmation letter issued by the commercial
bank to which the provider transfers
contributed capital in the case of contribution
in cash, or a valid certificate on contributed
assets to be issued by an organization based in
Vietnam which is licensed to carry out price
valuation in the case of contribution in assets.
In the event that the provider is established by
a joint venture between local party and foreign
party, the foreign party must be specialized in
labour outsourcing business from 5 years and
more, possess its capital and total assets
valued at VND 10 billion or more, and be
certified by an authority of home country that
it has not committed any violations against the
laws of home country or other related
countries.
2) Further, service provider is required
to maintain a deposit of VND 2
million
Service providers must maintain in its bank
account a deposit of VND 2 million during
operation of labour outsourcing service. They
will be granted with a certificate upon the full
remittance of deposit.
The deposit will be used to pay remuneration
or compensation to the outsourced employees
in the case that service provider breaches
labour contract entered into with such
employees or legal rights and interests of
employees are violated as prescribed in Article
20 of the Decree.
3) Offices and head of service provider
The Decree provides that location of service
provider such as head office, branches, and
representative offices must be stable for at
least 02 years. In addition, head of service
provider must be specialized in labour
outsourcing from 3 years and more. In the
period of 3 consecutive years before the
application for labour outsourcing service,
they must not work as heads of enterprises
whose business registration certificates were
withdrawn or they did not commit again acts
of forging dossiers applying for grant, re-grant
of Enterprise registration certificate, dossiers
applying for grant, re-grant or extension of
license for the labor leasing operation.
4) List of works to be allowed for
outsourcing
At present, enterprises are merely allowed to
outsource employees with respect to jobs
15
listed in this Decree. The list will be reviewed
by the Ministry of Labour, Invalids and Social
Affairs for the Prime Minister’s approval later.
There are also some restrictions imposed to
outsourcing activities. Accordingly, service
provider must not outsource each employee to a
client more than 12 months. In addition, this
service is prohibited between service provider and
its affiliate (i.e. Mother Company, subsidiary, or
within economic group).
This Decree takes effect on 15 July 2013.
12. New Decree detailing the new Labour Code on wages
On 14 May 2013, the Government promulgated
Decree No. 49/2013/ND-CP (“Decree”) providing
functions, tasks and organizational structure of the
National Wage Council as prescribed in Article
92(2), and principles for formulation of wage
scales, payroll and labor norms as prescribed in
Article 93(1) of the Labor Code. This Decree
repeals the Decree No. 114/2002/ND-CP dated 31
December 2002, and the Decree No.
205/2004/ND-CP dated 14 December 2004.
The multiple of the wage scale is the different
coefficient of the wage level for work or title
requiring the highest technical qualifications as
compared to the work or title requiring the lowest
technical qualifications, the number of grades of
the wage scale and payroll depends on the
complexity of the management and work or title
requirements. The gap between two consecutive
wage grades must at least 5%.
The starting salary of each work or title in the
wage scale and payroll will be decided by the
enterprises on the basis of the complexity of work
or title corresponding to the qualifications, skills,
duties, and experience to implement work or title,
in which:
(i) The lowest wage level of the simplest
work or title in normal labor
conditions shall be not lower than the
region-based minimum wage level
prescribed by the Government;
(ii) The lowest wage level of the work or
title requiring laborers to have to be
received vocational training (including
laborers trained by enterprises
themselves) must be at least 7% higher
than the region-based minimum wage
levels prescribed by the Government;
(iii) The wage level of work or title with
the heavy, hazardous and dangerous
labor conditions must be at least 5%
higher; work or title with the special
heavy, hazardous and dangerous labor
conditions must be at least 7% higher
than the wage level of work or title
having the equivalent complexity but
working in normal labor conditions.
This Decree takes effect on 1 July 2013.
However, its provisions will be applied as from 1 May 2013.
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13. New guidelines on labour dispute settlement and strikes under the
labour code 2012
On 10 May 2013, the Government promulgated
Decree 46/2013/ND-CP guiding a number of
articles of the Labour Code regarding labour
disputes (“Decree 46”). Decree 46 provides
standards and competences to appoint labour
conciliators; postponement and suspensions of
strikes, and resolution to rights and benefits of
labor collectives in such cases.
According to Decree 46, a labour conciliator is
appointed by the President of the provincial
People’s Committee based on the labour
conciliator’s self-registration or the introduction of
the Division of Labours, Invalids, and Social
Affairs or trade unions at district level. In
accordance with Article 4 of Decree 46, a labour
conciliator must satisfy the following
requirements:
(i) Being Vietnamese citizens, having full
legal capacity for civil acts, good
health and ethics;
(ii) Not being prosecuted for criminal
liability or serving sentence;
(iii) Having knowledge about labour law
and related laws; and
(iv) Having 3 years of experience working
in areas relating to labour and having
skills in conciliation of labour disputes.
During the process of labour conciliation, the
labour conciliator shall be entitled to the same
allowance as those of jurors participating in court.
Furthermore, Decree 46 also provides regulations
regarding postponement and suspension of strikes.
In particularly, the President of the provincial
People’s Committee will issue a decision to
postpone the strike which has been scheduled by
the Trade Union Executive Committee or suspend
the strikes which are happening in certain cases
provided in Article 8 of Decree 46.
During the period of the strike postponement or
suspension, the labour arbitration council will still
conduct the labour conciliation in accordance with
the Labour Code. In the event that the conciliation
is unsuccessful or the time limit for postponing or
suspending the strike expires, the Trade Union
Executive Committee may continue the strike
upon a 5-day prior notice to the employer, the
provincial Department of Labours, Invalids, and
Social Affairs and provincial trade union.
In addition to Decree 46, Decree 41/2013/ND-CP
issued by the Government on 8 May 2013
stipulates the implementation of Article 220 of the
Labour Code on the list of enterprises and
organizations using laborers which may not go on
strike and the settlement of requests of labour
collectives with respect to such employers
(“Decree 41”).
Particularly, employers using laborers which may
not go on strike comprise enterprises, agencies and
organizations employing laborers as prescribed by
the labour law and operating in sectors and fields
that are essential to the national economy under
which strikes may threaten security, national
defense, health and public order, including:
Power production with large capacity, electronic
transmission and moderation of the national
electrical system;
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(i) Oil and gas exploration and
extraction; production and provision
of gas;
(ii) Assurance of aviation safety,
maritime safety;
(iii) Provision of telecommunication
system infrastructure; postal services
for state agencies;
(iv) Provision of clean water, drainage
and environmental hygiene in central-
affiliated cities; and
(v) Direct services for national security
and defense.
However, the employer must immediately remedy
its violation and execute any obligations upon the
request made by the Trade Union Executive
Committee relating to the employees’ rights. If the
request is in relation to the employees’ interest, the
settlement of such request will be implemented as
follows:
The employer must hold a meeting for collective
negotiation between the employer and the Trade
Union Executive Committee with the participation
of labour conciliators.
If the collective negotiation is unsuccessful, either
party will be entitled to request labour conciliation
by the Labour Arbitration Council.
If a party does not successfully implement the
minutes of conciliation or the conciliation by the
Labour Arbitration Council is not successful,
either party may propose the Department of
Labour, Invalids and Social Affairs to report to the
President of the People’s Committee for final
settlement.
Decree 46 shall take effect from 1 July 2013 and Decree 41 shall take effect from 23 June 2013.
14. Guidance on the new Labour Code regarding working hours, breaks,
and occupational hygiene and safety
Following the enactment of the new Labour Code,
on 10 May 2013, the Government issued detailed
guidelines regarding working hours, rest breaks at
work, and occupational safety and hygiene under
Decree no. 45/2013/ND-CP. This Decree repeals
Decree 195/CP dated 31 December 1994, Decree
109/2002/ND-CP dated 27 December 2002 on
working hours and rest breaks, Decree 06/CP
dated 20 January 1995, and Decree 110/2002/ND-
CP dated 27 December 2002 on occupational
hygiene and safety.
Working hours
The new Decree provides similar provisions that
those under the repealed decrees regarding periods
included in paid working hours. However, paid
working hours will now further include two
periods: (i) time for meeting or training of part-
time union cadres at the request of the superior
trade union, and (ii) shortened working hours of at
least 1 hour per day for elderly employees in the
last year before their retirement.
In addition, Article 5 of the Decree provides in
detail that the rest time of 30 minutes during an 8-
hour shift (in normal conditions) or during a 6-
hour shift (in special cases) is included in the
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normal working hours (i.e., not working hours at
night time or overtime).
Overtime
It is easier and simpler when employers are not
required to obtain consent from the relevant
Ministries or People’s Committee to extend
overtime working hours from 200 hours to 300
hours (as stipulated in the repealed decrees).
Instead, by a notice served to the provincial
Department of Labour, Invalids, and Social
Affairs, enterprises involved in the following cases
may arrange their employees to work overtime
from 200 hours to 300 hours per year:
(i) Production or export processing of
textiles, garments, leather, shoes,
agricultural, forestry and fishery
products;
(ii) Production or provision of electricity,
telecommunication service, oil
refinery, water supply and sewerage;
and
(iii) Other urgent cases in which works
cannot be delayed.
Occupational safety and hygiene
One of the highlights in this new Decree is the
provisions regarding the engagement of elderly
employees in heavy, hazardous and dangerous
works. In particular, employers are allowed to
employ elderly employees for such works if the
following conditions are fully satisfied:
(i) The employees have considerable
experience and skills with at least 15
years of seniority, and have been
accredited with vocational
qualifications or recognized as
craftsmen under Vietnamese law;
(ii) The employees have good health in
accordance with the health standards
prescribed by the Ministry of Health;
(iii) The employment is on an irregular
basis with each employment term not
exceeding 5 years in total;
(iv) Medical checks are given at least twice
a year;
(v) The employer must assign at least 1
co-worker who is not an elderly
employee;
(vi) Positions of heavy, hazardous and
dangerous works, and particular
conditions will be specified later by
the Ministries.
Furthermore, the Decree also establishes a
legal framework for enterprises providing
technical inspection services related to
occupational safety. These enterprises will
assess and verify whether an inspected object
is safe in accordance with the relevant
19
technical standards and regulations.
Accordingly, any devices, equipment or other
materials on which strict requirements for
occupational safety are imposed must be assessed
and verified initially and periodically by such
enterprises before use. However, an operating
license for this kind of enterprise will be granted
by various authorities including the Ministry of
Industry and Trade, the Ministry of Transport, the
Ministry of Science and Technology, the Ministry
of Construction, the Ministry of Information and
Communications, the Ministry of National
Defense, and the Ministry of Labour, Invalids, and
Social Affairs depending on the type of devices,
equipment or materials on which the inspection
enterprise will carry out the inspection.
This Decree comes into effect from 1 July 2013
15. Government’s Decree 44/2013/ND-CP on labor contracts
On 10 May 2013, the Government issued Decree
No. 44/2013/ND-CP detailing the implementation
of a number of articles of the current Labor Code
regarding labor contracts (the “Decree”).
According to the Decree, when an employee enters
into labor contracts with more than one employer
and both of them are subject to compulsory social
insurance and unemployment insurance, the
employee and the employer of the first contract
shall be responsible for participation in
compulsory social insurance and unemployment
insurance. Meanwhile the parties to the contract
with the highest salary shall be responsible for
participating in compulsory health insurance.
Employers of remaining contracts must pay the
amounts equal to premiums of these compulsory
insurances belong to their responsibilities to the
employee together with the salary.
If employees suffer occupational accidents or
occupational diseases during the course of work
under labor contracts with employers who do not
participate in the compulsory social insurance and
health insurance for employees, those employers
shall be responsible for:
(i) paying expenses for first-aid until the
employees are treated to a stable
condition;
(ii) paying full salary under the labor
contract for the treatment period;
(iii) paying compensation or allowance to
the employees depending on the extent
of their reduced working capacity; and
(iv) notifying in writing the other
employers about the health status of
the employees concerned.
In the treatment duration, employers are not
entitled to unilaterally terminate the labor
contracts with employees suffering occupational
accidents, occupational illness, except case
specified in Article 38.1(b) of the Labor Code.
The Decree will take effect on 01 July 2013.
20
INFRASTRUCTURE
16. Urban Design
From 27 June 2013, both foreign and domestic
organizations and individuals engaging in
activities of urban design in Vietnam are required
to comply with Circular 06/2013/TT-BXH,
which has been issued by the Ministry of
Construction on 13 May 2013.
This Circular provides guidelines on the urban
design in the general planning, subdivision
planning, detailed planning, and separate urban
design schemes.
Urban designs in general planning schemes aim
to determine architectural and urban landscape
areas, as well as spatial organizations.
Specifically, the design will determine the (i)
existing inner city, (ii) tentative areas for new
development, (iii) areas of natural and artificial
landscape, (iv) areas for preservation, and (v)
particular areas. Accordingly, each area will have
its urban image and architectural space oriented on
the basis of its nature and development objective.
The design also includes spatial organization of
downtowns, urban gateways, main spatial axes,
major squares, urban focal points, trees and water
surfaces.
For subdivision planning scheme, the urban
designs will determine maximum criteria for
setbacks and landscape of the downtown along
main roads, open spaces, and urban focal points.
Meanwhile, urban designs in detailed planning
schemes will specify details regarding (i) focal
points in the planned areas, (ii) height of
construction works, (iii) setbacks of construction
works on each street and intersection, (iv) the
mainstream of shapes, colours, and architectural
form of the architectural works, and (v) system of
trees, water surfaces and squares.
Under the Circular, there are certain requirements
on producing separate urban designs schemes for
street blocks and neighbourhoods:
a) The design will stipulate tasks and the
design scheme for approval by the
provincial Departments of
Construction or the Departments of
Planning and Architecture (for Hanoi
and Ho Chi Minh City);
b) Organizations or individuals engaging
in urban design activities must have
full capacity in accordance with
Decree 37/2010/ND-CP dated 7 April
2010;
c) The managing architect of the separate
urban design scheme is required to
have experience in designing
architecture for construction works and
preservation of heritages and relics (in
areas having heritages, relics, or other
ancient architectural works).
In addition to provisions regarding the contents of
each type of design, the Circular also stipulates the
following conditions:
1) The description must fully include the
aforementioned contents of the design
21
as required by the Circular, and be in
consistent with the drawings;
2) The drawings and models must comply
with rates 1/5000, 1/2000, 1/1000,
1/500, 1/200 provided by the Circular
for each type of design.
This Circular comes into effect from 27 June 2013.
DISPUTE RESOLUTION
17. Determination of administrative decisions – subject to filing of
administrative lawsuit
The Law on Complaints (effective from 1 July
2012) and the Law on Administrative
Proceedings (effective from 1 July 2011)
recognize the citizen’s rights of filing a claim or
lawsuit against State authorities for
administrative decisions. Particularly:
a) Making administrative claim:
maximum of 2 stages, in which:
(i) First stage: the claim will be
brought to the authority that
issued the initial decision (e.g.,
sanctioning decision) (the
“Initial Decision”). Outcome:
the claimant will receive the
first settlement decision (the
“1st Settlement Decision”),
and
(ii) Second stage: the claimant will
make a claim to the superior of
the authority issuing the 1st
Settlement Decision. Outcome:
the claimant will receive the
second settlement decision (the
“2nd Settlement Decision”).
b) Pursuing administrative lawsuit at
Courts in accordance with laws on
administrative proceeding.
Notwithstanding the above, there are
discrepancies with regard to interpreting
administrative decisions, especially Settlement
Decisions between laws on administrative
claims and laws on administrative proceedings.
Article 40 of the Law on Complaints provides
that contents of the 2nd Settlement Decision
have a “conclusion that the claim is true wholly
or partly, or wholly false”. Particularly:
In the event that the claim is wholly or partly
true: the 2nd Settlement Decision will demand
the authority issuing the Initial Decision to
amend or annul such Initial Decision partly or
completely; or
In the event that the claim is completely false:
the 2nd Settlement Decision will request the
claimant, and other person having relevant rights
22
and obligations to fully implement the Initial
Decision.
Therefore, in no cases may the 2nd Settlement
Decision amend or supplement the contents of
the 1st Settlement Decision.
However, pursuant to Resolution No. 02/2011
providing guidelines for the Law on
Administrative Proceedings passed by the
Judges’ Council, an “administrative decision”
has the following features:
a) Formality: a decision in writing or
another similar formality (e.g. notice,
dispatch, and so forth);
b) Issuing authority: the State
authorities or officers of such
authorities;
c) Scope of application: applicable to
one or a number of specific subjects;
d) Content: on a specific issue related to
administrative management of the
State by which the claimant assumes
that his/her legal rights and interest
are violated, including:
(i) Administrative decision to
resolve or settle specific issues
related to administrative
management of State;
(ii) Administrative decision which
is made after the claim and to
amend, supplement, repeal,
annul partly or completely the
administrative decision as
stated in item (i) above.
Such conflict between the Law on Complaints
and Resolution No. 02 creates an adverse impact
on the citizenship rights of filing an
administrative lawsuit as follows:
According to the interpretation of Resolution
No. 02, only the Initial Decision and the
Settlement Decision amending, supplementing
and repealing the Initial Decision is considered a
subject of an administrative lawsuit. This
understanding will lead to two consequences:
a) Consequence 1:
In accordance with the claim procedure in
Article 7 of the Law on Complaints, the
right of filing an administrative lawsuit
arises when (i) the statute of limitations for
resolving the claim by the State authorities
expires without any Settlement Decision, or
(ii) the claimant does not consent to the 1st
Settlement Decision.
However, the Initial Decision and the 1st
Settlement Decision are issued by the same
authority; therefore, there is a number of
possibilities that the 1st Settlement Decision
upholds the positions of the Initial Decision.
As a result, the claimant cannot file a claim
for the 1st Settlement Decision without
giving consent to it.
Hence, the claimant only has the right to
make a claim for the second stage to the
superior.
b) Consequence 2:
If the claim is concluded to be completely
false at the second stage and is not
recognized by the authority, the 2nd
Settlement Decision will uphold the
positions of the 1st Settlement Decision and
23
the Initial Decision will not be considered a
subject of an administrative lawsuit.
There are many cases where the claimant
looks forward to the issue of the 2nd
Settlement Decision before bringing it to
court. Therefore, if the 2nd Settlement
Decision is issued after the prescribed time
limit, and the 1st Settlement Decision and
the Initial Decision positions remain, the
legal right of claimant will be forfeited as:
(i) The statute of limitations for
bringing the lawsuit against the
1st Settlement Decision has
expired because the 2nd
Settlement Decision was issued
after the prescribed time limit;
and
(ii) The 2nd Settlement Decision is
not considered a subject of an
administrative lawsuit according
to the interpretation of
Resolution No. 02.
It is supposed that the 1st Settlement Decision
maintaining the position of the Initial Decision,
and the 2nd Settlement Decision maintaining the
position of the 1st Settlement Decision should
be considered a subject of an administrative
lawsuit as this understanding will ensure and
facilitate the citizen’s right of pursuing lawsuits
in accordance with the Law on Complaints and
the Law on Administrative Proceedings.
FIRM NEWS
1. LNT & Partners to be in charge of the Policy Roundup of the Vietnam
Investment Review
From the end of July 2013, we will officially be in
charge of the Policy Roundup column of the
Vietnam Investment Review, the official press
office of the Ministry of Planning and Investment.
As Vietnam’s economic and legal landscape
becomes increasingly dynamic, we understand that
investors and businesses are often concerned with
the uncertainty and lack of information
surrounding these changes. Therefore, together
with VIR, we now bring our clients and VIR’s
readers with the most up to date and relevant news
on legal changes, as well provide practical advice
on how these changes may affect you.
2. LNT & Partners becomes an Outlook sponsor of the M&A Vietnam
Forum 2013
We are delighted to announce our official
sponsorship for the M&A Vietnam Forum 2013,
the largest M&A forum in the country. The forum
will be held on 8 August 2013 under the support
24
from the Ministry of Planning and Investment.
Together with our strong experience in M&A,
opinions from leaders of relevant ministries and
expertise of M&A consultants, we anticipate this
forum to become of the most insightful yet. For
our clients and attendees of the forum, we hope to
provide you with practical information and open
opportunities to vast potential market that is
Vietnam.
3. LNT & Partners obtains ruling from the State Securities Commission of
Vietnam regarding corporate guarantees and shareholder loans under
Circular No. 121/2012/TT-BTC
Recently, all eyes have been focused on the
contentiously uncertain Circular No.
121/2012/TT-BTC, which was passed on 26 July
2012 and concerns corporate management
applicable to public companies. The source of the
uncertainty arises from the term “affiliated
persons” in Article 24(3) of the circular, which
requires that “…public companies must not grant
loans or guarantees to their shareholders and
affiliated persons.”
Investors are left puzzled over the provision’s
scope of application, as there is no indication as to
whether these “affiliated persons” are affiliated to
(i) public companies, and/or (ii) shareholders of
public companies. If the interpretation of (i) is
adopted, public companies are exposed to a would
whereby its project finance would not be feasible
because of a lack of corporate guarantee or
shareholders’ subordinated debts. Therefore, it is
only expected that the correct interpretation should
be (ii).
Due to this ambiguity, we sought a ruling from the
State authorities and obtained an official position
of the State Securities Commission of Vietnam.
For an in-depth look into this ruling, please refer
to our article in Item 5 of this issue of Vietnam
Legal Briefing.
4. LNT & Partners is seeking a ruling from the Supreme Court regarding
interpretation of “administrative decisions” that are subject to filing of an
administrative lawsuit
Despite its advances to support enterprises’ rights
on filing a claim or lawsuit against State
authorities for administrative decisions, the Law
on Complaints (effective from 1 July 2012), the
Law on Administrative Proceedings (effective
from 1 July 2011), and Resolution No. 02/2011 are
not without flaws.
We have observed discrepancies with regard to the
interpretation of administrative decisions between
the Law on Complaints and Resolution No.
02/2011. We have also identified two significant
consequences of the current two-stage proceedings
of an administrative claim under the Law on
Complaints and the Law on Administrative
Proceedings. Without amendment, these issues
have the potential to compromise the civil rights of
claimants. Therefore, we have been seeking
rulings from the Supreme Court to resolve these
matters, and anticipate a response very soon.
For a detailed analysis on this matter, please refer
to our article in Item 17 of this issue of Vietnam
Legal Briefing.
25
Disclaimer
The material contained in this legal briefing is provided for general
information purposes only and does not contain a comprehensive analysis of
each item described. This briefing and the information contained herein are
not a substitute for the recipient’s independent evaluation and analysis of the
relevant documents. Readers should seek professional advice specific to their
situation. No liability is accepted for acts or omission taken in reliance upon
the contents hereof.
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