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THƯ NGỎ CHÚC MỪNG NĂM MỚI 2022

Kính gửi Quý Khách Hàng,

Lời đầu tiên, Apolat Legal gửi lời cảm ơn sự tin tưởng và đồng hành của Quý Khách Hàng trong thời gian qua. Năm mới Tết Nguyên Đán Nhâm Dần 2022, Apolat Legal kính chúc Quý Khách Hàng một năm mới Phúc Lộc – An Khang!

Thêm một năm 2021 có nhiều thách thức, trong bối cảnh thế giới nói chung và Việt Nam nói riêng tiếp tục bị ảnh hưởng bởi đại dịch Covid-19. Thấu hiểu những khó khăn chung của nhiều doanh nghiệp, Apolat Legal đã luôn hỗ trợ, đồng hành cùng Khách Hàng giải quyết các vấn đề pháp lý phức tạp trong quá trình hoạt động kinh doanh, xử lý rủi ro, hậu quả do Covid-19 gây ra và góp phần hỗ trợ quá trình phục hồi và tăng trưởng của Khách Hàng.

Tuy phải đối mặt với nhiều thách thức, nhưng nhờ sự nỗ lực không ngừng của đội ngũ nhân sự, năm 2021 cũng đánh dấu nhiều thành tựu khi Apolat Legal vẫn giữ vững tăng trưởng trong diễn biến kinh tế phức tạp. Apolat Legal cũng chuyển mình với công nghệ hoá, vận dụng tối đa tiềm lực của công nghệ vào việc vận hành và cung cấp dịch vụ nhằm nâng cao chất lượng dịch vụ pháp lý, tối ưu lợi ích cho Khách Hàng, góp phần tạo ra các giá trị tích cực làm nên thành công cho nhiều giao dịch nổi bật trong các thương vụ mua bán và sáp nhập (M&A), đầu tư trong và ngoài nước, sở hữu trí tuệ, giải quyết tranh chấp và ứng phó với các chính sách của Nhà nước trong giai đoạn dịch bệnh. Bên cạnh đó, các hoạt động giao lưu, đào tạo và ươm mầm tài năng cho sinh viên luật trong các trường đại học luôn được Apolat Legal chú trọng và đầu tư, để tạo nên một thế hệ những luật sư tương lai ưu tú, đồng thời thu hút người tài năng.

Năm 2022 chắc chắn sẽ tiếp tục với nhiều đổi mới, sáng tạo và đẩy mạnh về công nghệ, dịch vụ nhằm khẳng định và nâng tầm vị thế của một công ty luật uy tín, xứng tầm quốc tế. Đồng thời, Apolat Legal định hướng hoạt động mạnh mẽ và phát huy hơn nữa vai trò của mình tại các tổ chức pháp lý, tổ chức thương mại quốc tế có sức ảnh hưởng như Asialaw, Legal 500, Ip-coster, Iplink – asia, MSI Global… Ngoài ra, yếu tố con người là giá trị cốt lõi tạo nên sự hưng thịnh và bền vững của một công ty luật luôn được Apolat Legal đặc biệt quan tâm và không ngừng đẩy mạnh bằng các hoạt động đào tạo, bồi dưỡng pháp lý chuyên sâu và thu hút nhân sự tiềm năng, ưu tú.

Để hoàn thành các mục tiêu trong năm 2022, sự tin tưởng và đồng hành của Quý Khách Hàng đóng vai trò quan trọng và là nguồn động lực to lớn cho Apolat Legal. Bằng sự chân thành nhất, một lần nữa, Apolat Legal gửi đến Quý Khách Hàng lời cảm ơn và lời chúc năm mới nhiều thuận lợi, bình an!

Trân trọng,

CÔNG TY LUẬT APOLAT LEGAL

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[VMOOT 2021] Welcome 08 Teams Going To The Semifinal

On November 28th , 2021, the semifinal of the VMoot 2021 was held and received positive attention from the competition teams of universities across the country. Via excellent rhetoric contest from competing teams, the Judges selected the teams that will join in the semifinal of Vmoot 2021, officially naming:

  1. Team QG02: UEL Team – University of Economics and Law in Ho Chi Minh City
  2. Team QG09: PASO – University of Economics in Da Nang;
  3. Team QG11: HTL – Banking Academy
  4. Team QG12: H2T – Hanoi Law University
  5. Team QG17: Inception – Hue Law University;
  6. Team QG18: BLISS – National Economics University;
  7. Team QG21: HakuDi – Faculty of Law, Vietnam National University, Hanoi
  8. Team QG24: NTN – Ho Chi Minh City University of Law.

    

Congratulations to the top 8 talented teams who have passed the first stage. Apolat Legal hopes that in the next rounds, the teams will continue to maintain their performance and confidence to win all challenges and reach the champion!

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Online Training ‘’Startup and Brand protection’’

On August 13th , 2021, Apolat Legal is honored to become a cooperation unit in the online training session ‘’Startup and Brand protection’’ organized by Startup Wheel – designed as an Accelerator Program for international businesses to expand business in Southeast Asia. Every year, Startup Wheel attracts more than 2,000 startups from 20 countries on 5 continents.

Lawyer Pham Thi Thoa – Founding Lawyer of Apolat Legal shared with Top 60 Vietnamese track – Startup Wheel 2021 about knowledge and case studies around brand protection, relationships with founding team and investors, notes on shares when working with co-founder and investor.

Apolat Legal hopes that by sharing experiences, Startup Wheel Vietnam candidates will be able to confidently share their projects without fear of being “afraid of stealing ideas/business models” while still “recording” a “score” with the Jury Council.

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Articles

Things To Keep In Mind When Operating In Overseas Education Consultancy

After the Covid-19 pandemic has settled down, many countries are coming up with plans to accommodate and co-exist with the disease in the long run, leading to various changes in career paths, potential sectors and other policies on education and job selection all over the world. Amid such circumstances, the demand for overseas education consultancy of Vietnamese students and their parents has dramatically increased, especially when intentions of studying abroad have had to be delayed for over 02 years due to complications of the disease. In order to meet the market demand, countless enterprises have started to provide overseas education consultancy services. Within the scope of this article, the author will provide the individuals and organizations concerned with information on the method of participation and operation as well as some noteworthy points when providing overseas education consultancy services.

According to the current provisions of law, the scope of overseas education consultancy services includes the following activities:

  • Providing information and advice on educational policies adopted by countries and territories; providing advice on the selection of school, course, discipline and qualification relevant to the student’s abilities and expectations;
  • Organizing overseas study advertisement, promotion, conference, seminar, exhibition and fair events in accordance with provisions of law;
  • Organizing enrolment, admission for studying abroad;
  • Organizing necessary skill development classes for Vietnamese citizens wishing to study abroad;
  • Arranging for Vietnamese citizens to go abroad for education, arranging for parents or guardians to visit the training establishments in accordance with provisions of law;
  • Other activities relating to the provision of overseas education consultancy services.

Therefore, when individuals and organizations want to provide any or all the services listed above, they are considered to be operating in overseas education consultancy services. In that case, these individuals and organizations have to satisfy some conditions as prescribed by law to provide these services. Among such conditions, the establishment of an enterprise operating lawfully in accordance with the Law on Enterprises is a prerequisite. Furthermore, enterprises must also satisfy the general conditions to provide these services and apply for necessary licenses.

Enterprises are allowed to provide overseas education consultancy services when meeting all the following requirements:

  • The staff directly giving consultation on overseas education must satisfy certain conditions, including:

+ Having a university degree or higher; 

+ Having a good command of a foreign language at the 4th level or higher according to the 6-level Foreign language competency framework used in Vietnam (Circular No. 01/2014/TT-BGDDT) and the equivalent; 

+ Having a certificate of completion of an overseas education consultancy training course as required by the Ministry of Education and Training.

In which, the participation in the overseas education consultancy training course is conducted as guided in Circular No. 29/2013/TT-BGDĐT of the Ministry of Education and Training. A participant shall be issued with a Certificate of completion of the overseas education consultancy training course if they attain a final examination score as required. 

  • In the past, according to Decree No. 46/2017/ND-CP (still in effect), enterprises operating in overseas education consultancy must also meet other requirements on the head office, facility and equipment serving the provision of consulting services on studying abroad. However, currently, such requirements have been omitted by Article 2 of Decree No. 135/2018/ND-CP. This omission is considered a step forward in expanding the policies and offering more market entry opportunities in this field for a lot of enterprises. 
  • Moreover, despite not being clearly stated by law, enterprises should take into account the registration and/or supplementation of relevant business lines to operate and conduct business activities in the most convenient way possible. For instance, the business line of Education Assisting Services (classification code of 8560) is one of the business lines the enterprises have to register. 

In addition, when having satisfied with all the above requirements, enterprises shall apply for the Business Registration Certificate of overseas education consultancy at the Department of Education and Training where the enterprises provide consulting services on studying abroad. The Director of the Department of Education and Training will issue the enterprises with the Business Registration Certificates of overseas education consultancy after 15 business days from the day of receiving sufficient and valid files. During the process of operation, if there is any modification or supplementation to the Business Registration Certificate of overseas education consultancy, the enterprises shall proceed to amend or supplement according to the procedures and protocols for re-issuing the Business Registration Certificates of overseas education consultancy. 

Listed above are the general provisions on basic requirements, prerequisites and some noteworthy issues for an individual or organization to enter into the market and operate in overseas education consultancy in the fastest, most efficient way.

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Some basic notes when registering to advertise drugs

With the rapid spread of information on the media and social networks, advertising plays an important role in businesses. Thanks to advertising, consumers can effortlessly approach and research the products. At the same time, companies have the opportunity to find potential customers to promote shopping demand. Nevertheless, in advertising activities in general and for some specific products such as cosmetics, chemicals, medical equipment and especially drugs  advertisement, legal regulations require conditions to be viewed as “quite stringent” to ensure the safety of consumers. Accordingly, this article will analyze some essential issues relevant to the registration of drug advertisement content to help the operations have a general overview of the subject during their implementation. 

Previously, drugs advertisement content would be stipulated by (i) the Law on Advertising 2012 and guiding regulations of the Law on Advertising and (ii) the Pharmacy Law 2016 and related guiding regulations. However, from July 1st, 2017, specialized regulations related to drug advertisement registration will be uniformly implemented in accordance with the Law on Pharmacy and guiding regulations, specifically Decree No. 54/2017/ND-CP guiding the implementation of the law on pharmacy (hereinafter referred to as “Decree 54/2017”). 

For the application for registration of drug advertisement content, the applicants should pay attention to 03 main contents, which are:

(1) Requirements for the drug advertisement content.

(2) What content should not be provided in the drug advertisement?

(3) Effect of the certificate of drug advertisement contents.

Specifically:

(1) Requirements for the drug advertisement content

1.1. Drug advertisement contents shall conform to the following documents:

a) The label and instructions for use approved by the Ministry of Health;

b)  The disquisition on the drug in the National Pharmacopoeia of Vietnam;

c) Documents and professional instructions related to the drug issued or admitted by the Ministry of Health. 

Note: Normally, the label used for advertising must be approved by the Drug Administration of Vietnam. In some specific cases, the applicants can still use the old label. However, the old label used to apply for registration must be enclosed with the instruction sheet (for patients and medical staff), which the Drug Administration of Vietnam has stamped.

1.2. The drug advertising contents have the following compulsory information:

1.2.1. General provisions

  1. Drug name;
  2. Active ingredients or herbal ingredients in the approved package insert. Names of herbal ingredients must be written in Vietnamese. Names of untranslatable foreign herbal ingredients may be written in the Latin language;
  3. Indications;
  4. Uses;
  5. Dosage;
  6. Contraindications and warnings for special users (pregnant women, breastfeeding women, children, old people, people having chronic diseases);
  7. Cautions and what to avoid when using the drug;
  8. Side effects and adverse effects;
  9. Name and address of the manufacturer;
  10. The text “Đọc kỹ hướng dẫn sử dụng trước khi dùng” (“Read the instructions carefully before use”);
  11. The text “Số Giấy xác nhận nội dung quảng cáo thuốc của Bộ Y tế: …/XNQC…, ngày … tháng … năm…;” (“Number and date of the certification of drug advertisement contents issued by the Ministry of Health: …”) at the end of the first page;
  12. Pages of a multi-page document must be numbered. The first page must specify the number of pages and contain the table of content;
  13. Reference documents and extracts therefrom are specified. The extracts must be accurate without addition or removal of information which leads to misunderstanding of the safety and efficacy of the drug.

1.2.2. Other regulations 

  1. Voice and text in a drug advertisement shall comply with the Law on Advertising;
  2. The font size in drug advertisement contents must be clear, easy to read and recognize, but must not be smaller than the font size 12 of VnTime or Times New Roman font on A4 paper;
  3. The advertising script must clearly describe the image, the text, the text, and the music;
  4. Drug advertisement content must only provide information about the drug, not provide information unrelated to the drug;
  5. For each specific form of advertising, such as advertising on online newspapers, advertising screens or the advertisement is an audio or video track that has multiple pages or footages, in addition to meeting the above general regulations, the applicants need to meet and comply with a number of regulations corresponding to each form of advertising.

(2) What content should not be provided in drug advertising?

The information and images that are not allowed to be used in the advertising content are specified in Article 126 of Decree 54/2017. 

A common cause of the rejection of an advertising registration dossier is the use of adjectives, such as quick pain relief.  With the word “fast” in the dossier, the Drug Administration may require the provision of using results of the drug to verify that the treatment time is faster than that of other identical products. The other cases make a use of a comparative word that is typically the best product; or contain additional phrases such as “root treatment”, “high quality”, “trusted for generations”, etc.

(3) Effect of the certificate of drug advertising contents

The certification of drug advertisement contents does not have a specific expiration date and shall be invalidated in the following cases:

  1. The certificate of drug registration expires;
  2. The certificate of drug registration is revoked; 
  3. A change to drug information is made that requires issuance of another certification of drug advertising contents. Specifically, the certification of drug information was issued but the applicant for drug registration, drug name, ingredients, concentration, dosage form, indications, contraindications, dosage, uses for special cases, warnings or drug safety information is changed;
  4. There is a recommendation from the State management agency in charge of pharmacy on limiting use or using under the supervision of medical examination and treatment practitioners;
  5. The drug contains an active ingredient or herbal ingredient that has been removed from the list of Over-The-Counter (OTC) drugs promulgated by the Minister of Health. 

Particularly, in case the certificate of drug registration is renewed, the certification of drug advertising contents will be automatically renewed with the same duration as that of the certificate of drug registration.

Perhaps the applicants facing the restrictions of legal regulations will feel flinch from administrative procedures. On the one hand, from the manufacturer’s perspective, when the manufacturer ensures compliance with the provisions of the law and the product quality is highly appreciated by the consumers, the manufacturer will have a competitive advantage over competitors in the domestic market. On the other hand, satisfying and complying with statutory conditions are also the basis for manufacturers to protect themselves when facing some side effects of the products. However, it cannot be denied that, from consumers’ perspective, they need to be protected because the drug will have a direct impact on health, especially when the drug is indicated use for the elderly and children.

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Overview Of Penalties For Breach Of Contract (part 3)

The concept of conflict of laws is not new, especially in the dynamic law system of Vietnam. The conflict of laws usually refers to an issue subject to two or more different legal instruments in which these legal instruments can provide contradictory instructions/regulations. The conflict of laws regarding contractual penalties is a typical example. 

See more: Overview Of Penalties For Breach Of Contract (part 2).

Within Vietnamese laws, the contractual penalty has been primarily subject to three legal instruments, which are the Civil Code 2015, the Commercial Law 2005 and the Construction Law 2014. To understand how the contractual penalty works under Vietnamese law, please reach out to my previous articles, namely “Overview and Conditions applicable to the Agreement on Penalties for Breach” and “The amount of a contractual penalty and how to determine it in reality”.

Contractual penalties under Vietnamese law and how they conflict with each other

Regarding the contractual penalty, all those legal instruments agree that the contractual penalty shall be available only by a written agreement. By which, the parties reserve the right to negotiate the amount of contractual penalty to impose upon their transaction. However, those legal instruments provide different instructions from each other when it comes to the limitation on the amount of contractual penalty. While the Civil Code allows an indefinite amount, the Commercial Law and the Construction Law set out the limitation on the amount of contractual penalty of 8% and 12%, respectively. 

In addition to the distinctions between those on the limitation on the amount of a contractual penalty, the Construction Law also discriminates which construction works are subject to this provision of the contractual penalty. Specifically, according to Article 146.2 of the Construction Law, the contractual penalty shall not exceed 12% of the value of the breached obligation for construction works using state capital. In other words, although the governing scope of the Construction Law covers all construction relations within the territory of Vietnam, only construction work using state capital is limited to the amount of the contractual penalty. 

However, the Construction Law does not provide any guidance on the maximum amount of a contractual penalty applicable to commercial construction work not using the state budget. In comparison, the Civil Code and the Commercial Law do not impose any discrimination against any subjects regarding the contractual penalty. Consequently, the discrimination among construction works under the Construction Law leads to a degree of ambiguity as to whether the non-state-capital construction works will be subject to the Civil Code or the Commercial Law regarding the amount of a contractual penalty. For example, if both parties to a non-state-capital construction contract are commercial legal entities subject to the Commercial Law, will the amount of contractual penalty be limited to 8% of the value of the breached obligation under Article 301 of the Commercial Law 2005? or will it be depended on the agreement between the parties without any limitation under the Civil Code? 

For years, this has been a hot dispute. To answer this question, we have to clarify a “gray spot” of the laws, which have triggered many hot debates in the legal industry. It is the conflict of laws on the governing scope. 

The conflict of laws on the governing scope

As you may know, the Civil Code is as known as a “big brother” in Vietnamese laws as the Code governs all civil relations in Vietnam. The Code provides a fairly broad and general definition of a civil relation, by which it is enabled to govern almost all transactions under the jurisdiction of the laws of Vietnam. 

In contrast, both Commercial Law and the Construction Law are deemed specialized laws, which only govern a specific subject, commercial relations and construction relations, respectively. Specifically, the Commercial Law governs all commercial relations/activities within the territory of Vietnam or relations to which at least one party is a business entity. The Construction Law governs all construction relations/activities within the territory of Vietnam. 

In practice, those laws are rarely in direct conflict with each other. This could be attributed to a principle of conflict resolution between general laws and specialized laws as prescribed in the Civil Code and the Commercial Law. Theoretically, the concept of this principle is that if there is a discrepancy between the laws regarding a specific issue, the specialized laws on that issue shall prevail, provided that the prevailed one is not inconsistent with the basic principles of civil law prescribed in the Civil Code. Otherwise, the general law will prevail. 

The words of “general law” do not only refer to the Civil Code but to the Commercial Law as well. Though the Commercial Law is deemed a specialized law, the Commercial Law can still be referred to as a general law in the perspective of other specialized laws. Specifically, according to Article 4.2 of the Commercial Law, in the case of specialized commercial activities provided for in other specialized laws, the provisions of such other specialized laws shall prevail. Therefore, when it comes to an issue subject to the Commercial Law and other specialized laws, the provisions of other specialized laws shall prevail over the Commercial Law to apply to that issue. In this case, the Commercial Law is a general law.

Moreover, the Commercial Law also provides that the provisions of the Civil Code shall apply to a commercial activity which is not governed by the provisions of the Commercial Law and by provisions of other specialized laws. Therefore, we can conclude that if an issue is subject to the Civil Code, the Commercial Law, and the Construction Law, the principles on the application order of those laws will be as follows:

(i) If the issue is governed by the provisions of the Construction Law, the Construction Law shall prevail;

(ii) If the issue is not governed by the provisions of the Construction Law, the Commercial Law shall prevail; and

(iii) If the issue is not governed by the provisions of the Commercial Law and the Construction Law, the Civil Code shall prevail.

It seems pretty clear when we read out loud these governing scopes with the coherent principles above. However, when it comes to reality, it is not likely to happen in the same way. 

The reality and the perspective of the Court

With respect to the contractual penalty, all those mentioned legal instruments have their own provisions. As per the above principles on the application order of those laws, if an issue/relation falls into the governing scopes of those legal instruments, the Construction Law shall be the first priority over the Commercial Law and the Civil Code. The Commercial Law will take precedence over the Civil Code. Whenever the Construction Law does not provide any guidance or regulation on such issue/relation, it will be governed by the related provisions of the Commercial Law. If both Commercial Law and Construction Law fail to cover that issue/relation, the Civil Code will prevail.

Therefore, following that principle, where the Construction Law does not cover the non-state-capital construction work regarding the contractual penalty, the provision of the Commercial Law on the contractual penalty shall prevail. As a result, the amount of contractual penalty regarding the non-state-capital construction work will be supposed to be limited to 8% of the value of the breached obligation under Article 301 of the Commercial Law 2005.

However, according to the Cassation of the Supreme Court of Vietnam No. 12/2019/KDTM-GĐT regarding a dispute between two commercial legal entities over a construction contract, the Justice Council of the Supreme Court held that “the Construction Law as a specialized law governing construction contracts would prevail to apply to the construction contract in this case. Where the Construction Law does not provide any related provision, then the provisions of the Civil Code shall prevail instead of the Commercial Law.” As a result, the Justice Council overruled the Cassation of the High Court regarding the application of the Commercial Law on the construction contract. However, the Justice Council did not give any rationale for that holding. Moreover, prior to this Cassation, the Ministry of Construction had expressed the same opinion of the Justice Council via a response No. 48/BXD-KTXD dated September 03rd, 2019, that the Civil Code shall prevail instead of the Commercial Law regarding the contractual penalty in the construction contract. 

In my opinion, the rationale behind this opinion may be that the Construction Law defines the construction contract as a civil contract. Specifically, according to Article 138.1 of the Construction Law, the construction contract means a written civil contract between the principal and the contractor to perform a part or all the works of the construction investment activities. This provision of the Construction Law has omitted the principle of conflict resolution between general laws and specialized laws by expressly designating the Civil Code to govern the construction contract instead of the Commercial Law. 

Conclusion

The conflict of laws is not new in the law industry. Many principles on the application order between legal instruments have been promulgated to resolve the issue of the conflict of laws. In Vietnam, one of the notable principles of conflict resolution is the principle of the conflict resolution between general laws and specialized laws.

Although the principle of conflict resolution between general and specialized laws is theoretically quite clear, this principle does not apply to all issues in practice. An exception to this principle is when the specialized law expressly designates another law as the governing law rather than following the order under the principle. The contractual penalty is a typical example of this exception. By which, this principle has been omitted easily when the Construction Law designates the Civil Code as the governing law over construction contracts instead of the Commercial Law. 

In other words, the contractual penalty regarding a construction contract without state capitals will be limited to 12% of the value of the breached obligation, while there is no limitation on the maximum amount of contractual penalties on other construction contracts. In conclusion, for construction contracts in general and contractual penalties in particular, the application of laws will be in the following order: the Construction Law, the Civil Code and eventually the Commercial Law. 

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