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Apolat Legal’s teams have advised on numerous market-shaping transactions across an array of industries in the energy sector, e-commerce, technology, retails, logistic, real estate,…

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Corporate and Investment

  • Foreign Investment
  • Compliance
  • M&A
  • And more

International Commercial & Trade

  • International Trade
  • Sales & After Sales
  • Distribution
  • And more

Dispute Resolution

  • Mediation & Conciliation
  • Litigation & Enforcement
  • Arbitration
  • And more

Employment

  • International Labor
  • Employee Benefits
  • Day to Day HR Management
  • And more

Intellectual Property

  • Franchising
  • Trademark and Industrial Design
  • Copy Right and Patent
  • And more

Real Estate

  • Real Estate
  • Infrastructure
  • Leasing
  • And more

International reach

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Apolat Legal has become the law firm member of MSI Global Alliance (MSI) exclusively in Viet Nam jurisdiction.

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At Apolat Legal, diversity, inclusion and equality are a part of how we live our values.

We apply our values to all our activities world-wide. They describe our culture and personality both internally and externally, the way we work and what we stand for.

Our Vision

Integrity, Understanding and Innovation

We in the next decade is to be the truly and reliable business law firm for middle market with a commitment to integrity, understanding and innovation. This will be a stepping-stone for the future leading the legal market in Vietnam.

Our Clients

Dedication & Professional

Our People

Unity, Diversity, Supportive, Trust

Our Working-Environment

Open and Respect The Dissimilarities

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The latest

News

Apolat Legal made a strategic partnership with Marbury Corporate Advisory Services Limited

We are pleased to announce our strategic partnership with Marbury Corporate Advisory Services Limited, a professional service provider in Hong Kong.

Marbury provides five main service lines including Corporate Services, Business Enterprise Solutions, Fund Services, Corporate Advisory, Accounting and Audit Management Services. With the global network, Marbury can support the Clients in establishing companies in many countries such as:

  • British Virgin Islands
  • Cayman Islands
  • UK
  • Marshall Islands
  • Bermuda
  • Singapore
  • Hong Kong

Additionally, Marbury has a group of professionals and administrators having legal and accounting expertise to provide the best solutions and services for the Clients. For detailed information about Marbury, please refer to the website https://marburys.com/about-us/company/.

Apolat Legal hopes that this cooperation will open up opportunities and strengthen the values of both companies for benefit of the present and potential clientele.

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Human resource news in June 2021

We are pleased to welcome 03 new members to Apolat Legal:

Ms Dinh Ho Nhi Ha

Ms. Dinh Ho Nhi Ha graduated with a major in International Commercial Law from the University of Economics and Law. She has 03 years of experience in which 02 years working as a paralegal at a law firm, and 01 year working as an in-house lawyer at a technology company before becoming a member of Apolat Legal in June 2021.

Currently, Ms. Ha is a trainee lawyer at Apolat Legal and has planned her path to become a lawyer specializing in corporate matters.

Ms Le Hoang Bao Yen

Ms. Le Hoang Bao Yen graduated from the Faculty of Law – Ton Duc Thang University (2020).

Ms. Yen has successfully completed her apprenticeship at Apolat Legal since she was a third-year student. During her apprenticeship, Ms. Yen received good reviews from Partners and Associates. Getting acquainted and adapting to the daily tasks such as reviewing, translating, researching, working with state agencies have helped when Ms. Yen works as Paralegal.

Promising in the future, Ms. Yen will focus on improving her professional skills with a progressive spirit, learning and improving the soft skills to enhance career prospects that become a Lawyer.

Mr Dang Nguyen Nguyen Thanh

Thanh Dang graduated with a Bachelor of Business Law from the University of Economics and Law, Vietnam National University. During the course of studying and pursuing the law career, Thanh has gained his practice experience by practicing in several law firms, corporates, as well as a court. Before joining Apolat Legal, he worked as a paralegal at several professional law firms and at the same time achieved a number of valued certificates to broaden his academic background.

In February 2021, Thanh joined Apolat Legal to proceed to improve his practical legal knowledge and skills as well as pursuing his legal career path.

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Articles

Legal Issues Regarding Foreign Capital Loans And Method Of Money Transfer

In recent years, there have been positive changes in the country’s economy, together with the increased demand for mobilizing and using the capital of enterprises. Nonetheless, not all enterprises have available capital to continue investing and developing; hence, taking loans from different sources is always an effective solution for enterprises’ financial management. Nowadays, besides borrowing capital from domestic banks, enterprises often seek ways to approach and borrow foreign capital in light of manufacturing expansion, development of business activities and investment projects as well. Within the framework of the Vietnam government’s foreign debt management and current regulations, enterprises borrowing foreign loans, repaying foreign debts must comply with the conditions on the borrowing of foreign loans and repayment of foreign debts; make loan registration, open and use accounts, withdrawal capital, and transfer money, report on loan performance in accordance with regulations of the State Bank. Although most enterprises have strictly complied with the regulations on the borrowing of foreign loans and repayment of foreign debts when borrowing, there are still some that have not yet been carefully searched while implementing leading to the misunderstanding of the regulations and, eventually, unfortunate consequences. Thus, within the scope of this article, acknowledging this issue allows us to highlight certain remarks that the Borrower needs to duly understand and follow to limit faults and violations with respect to the borrowing of foreign loans and repayment of foreign debts without a government guarantee.

To begin with, what is a foreign loan without a government guarantee?

In accordance with Clause 2 Article 3 Decree No. 219/2013/ND-CP, a foreign loan without a government guarantee, also known as “borrowing a foreign loan by the mode of self-borrowing and self-payment), is a loan taken by a borrower by the mode of self-borrowing and self-responsibility for payment to the foreign creditors (“Foreign Loans”).

Thus, a company duly incorporated and operating in Vietnam (including foreign-invested companies) (“the Borrower”) is allowed to borrow capital from foreign organizations, individuals (“the Creditor”) to meet its capital demand, such loan by the Borrower and the Creditor is also deemed to be Foreign Loans and must satisfy the conditions under the law of Vietnam on the borrowing of foreign loans and repayment of foreign debts.

However, regarding a loan whose Creditor is a foreign individual allowed to reside in Vietnam for a duration of 12 months or more (for instance, an individual who has been granted a temporary residence card for a period of 12 months or more), such a loan is not deemed a foreign loan and is not subject to relevant regulations on borrowing foreign loans and repayment of foreign debts.

Remarks on basic legal issues on Foreign Loans

  • Registering with the State Bank

Loans being subject to make or not to make registration with the State Bank include:

  • Short-term foreign loans (“Short-term Loans”) with a maturity not exceeding one year are not subject to registration with the State Bank (except for renewed short-term loans having more than one year of maturity term or non-renewed short-term loans but remain the outstanding principal owed after the tenth day from the date of first fund withdrawal in a full one year).
  • Mid-term and long-term foreign loans (“Mid-term or Long-term Loans”) with the maturities longer than one year or renewed short-term loans or loans remaining the outstanding principal owed after the maturity term ends as above, the Borrower shall carry out the procedures for foreign loan registration with the State Bank.
  • Nonetheless, regarding Mid-term and Long-term Loans made in the form of deferred payment for import of goods, there is no need to register such loans with the State Bank.

The Borrower must submit dossiers to apply for loan registration to the State Bank of Vietnam within 30 days since:

  • The parties enter into an agreement on the renewal of Short-term Loans into Mid-term or Long-term Loans;
  • The anniversary of the date of first fund withdrawal in full one year concerning Short-term Loans not having renewal contract but remaining the outstanding principal owed at the time of the anniversary of the date of first fund withdrawal; or
  • The parties enter into a mid-term or long-term loans contract or a fund withdrawal agreement (if the parties have already entered into a framework contract on mid-term or long-term loans).

The Borrower needs to remark in case there is any change in contents relating to Foreign Loans referred to in the confirmation of foreign loan registration given by the State Bank, the Borrower shall be obligated to make a registration for changes of Foreign Loans with the State Bank, except for some cases in which the Borrower is only responsible for notifying the State Bank in writing, including: Plan for fund withdrawal, debt repayment and fee remittance changed within 10 days as against the ones previously approved by the State Bank; Change of the Borrower’s address in the city or province where the Borrower’s head office is located; Change of the Creditor, related information about such Creditor or change of the commercial transaction name of the account service provider.

The Borrower must apply for registration/ notifying of change within 30 days from the date of change or receipt of notification of modification. In case the Borrower fails to carry out such procedures for Foreign Loans change at the State Bank of Vietnam, the Borrower may be subject to an administrative fine up to 60.000.000 VND.

  • Loan receive accounts

In accordance with Clause 1 Article 24 Circular No. 03/2016/TT-NHNN: Foreign borrowing and foreign debt repayment account refers to the payment account that the Borrower opens at an account service provider to withdraw funds and repay debts incurred from Foreign Loans and other money transfer activities relating to foreign borrowing and foreign debt repayment and foreign loan guarantee (“Loan Account ”).

Based on the provisions on loan receive accounts in accordance with the law on foreign exchange, there can be two subjects classified as follows: 

  • The Borrower is a Foreign Direct Investment enterprise; and
  • The Borrower is not a Foreign Direct Investment enterprise.

Foreign Direct Investment enterprises including:

  • Enterprises established in the form of investment of establishing a business organization whose members or shareholders are foreign investors and granted the Investment Registration Certificate under the law on investment; or
  • Enterprises other than those prescribed in point a of this clause and at least 51% of charter capital of which is owned by foreign investors as follows:
    • Enterprises operating in conditional business lines or without conditions applicable to foreign investors and at least 51% of charter capital of which is held by foreign investors through contribution purchase of shares/stakes;
    • Enterprises derived from division, acquisition, consolidation whose 51% of charter capital is owned by foreign investors after such events;
    • New enterprises are established by relevant laws.
  • Project enterprises established by foreign investors to implement PPP projects in accordance with the law on investment.

Hence, with respect to the Borrower being a Foreign Direct Investment enterprise:

  • Regarding Mid-term or Long-term Loans, such loans must be transferred to the Direct Investment Capital Account of enterprises (“DICA”) and then from DICA, such loans shall be disbursed to the enterprises’ payment account to pay for borrowing purposes;
  • Regarding Short-term Loans, such loans can be transferred to DICA analog to the aforementioned case or to the Loan Account of FDI enterprises not being DICA and used only for the purpose of loan receive, debt repayment relating to short-term foreign loans. Each Short-term Loan shall merely be allowed to open its account at one account service provider. The Borrower may use one account for one or more short-term foreign loans.

With respect to the Borrower not being a Foreign Direct Investment enterprise: foreign loans (regardless of Short-term, Mid-term, or Long-term Loans) are all transferred to Loan Account. Each Foreign Loan shall merely be allowed to open its account at one account service provider and the Borrower may also use one account for one or more short-term foreign loans.

If the Creditor is a foreign individual allowed to reside in Vietnam for a duration of 12 months or more having a need to lend the Borrower money, how would the law be applied?

With respect to the Creditor being a foreign individual who is allowed to reside in Vietnam for 12 months or more: In accordance with Clause 1 Article 3 Decree No. 219/2013/ND-CP, borrowing of a foreign loan means the Borrower is receiving a credit amount of a non-resident through signing and implementing a foreign loan agreement in the form of a loan contract, contract on goods purchase and sale on deferred payment, loan provision entrustment contract, financial leasing contract, or issuance by the Borrower of debt instruments. In case the Creditor is a foreign individual allowed to reside in Vietnam for a duration of 12 months or more, the loan is not deemed to be  Foreign Loans and is not subject to relevant regulations on the borrowing of foreign loans and repayment of foreign debts. Hence:

  • If such a loan is made in a legal source of income in Vietnam: The parties are free to enter into a loan agreement under the provisions of civil law and are not subject to regulations on the borrowing of foreign loans and repayment of foreign debts.
  • If such a loan is made in a legal source of income in foreign countries: It is not deemed to be Foreign Loans and not subject to regulations on the borrowing of foreign loans and repayment of foreign debts. However, Vietnamese law has not yet had any legal regulated framework and duly specified it. Therefore, in fact, in order that the Borrower receives a loan from the Creditor, some banks have instructed to transfer money via DICA or Loan Account as prescribed on Foreign Loans above.

If the parties fail to comply with the aforementioned provisions relating to the loan receive, they may be subject to an administrative fine for violations as follows:

  • Failing to comply with law regulations on opening, closing and use of accounts in Vietnam for conducting one of the following operations: Foreign investments in Vietnam; Vietnam’s outward investments; foreign borrowing and foreign debt payment…, with an administrative fine up to 100.000.000 VND;
  • Carrying out fund withdrawal or repayment of foreign debt against law regulations, with an administrative fine up to 100.000.000 VND;
  • Failing to comply with law regulations on foreign borrowing and foreign debt repayment (except for violations mentioned above), with an administrative fine up to 400.000.000 VND;
  • Lending in the form of cash payment, with an administrative fine up to 400.000.000 VND, and being enforced transfer of benefits illegally obtained from any violations and prohibited to expand the operating scope, scale and regions until remedial measures against such violation are completed.

Additionally, the Creditor may be subject to enterprise income tax/personal income tax from the interest obtained and it must be kept by the Borrower to declare and pay tax to the competent tax authorities in accordance with the law.

Here are some legal issues relating to foreign loans without government guarantee in which the Borrower needs to duly acknowledge and comply with to properly perform, limit fault leading to unwanted consequences.

If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.

This article is for general information only and is not a substitute for legal advice.

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Some Remarks For Enterprises When Using Form-based Contracts

Creating a form for contracts to execute in business activities has become more and more familiar for enterprises in Vietnam. However, with a developing economy as Vietnam, the number of small and medium-sized enterprises has still made up a large proportion of the business community, in which, small and micro-sized enterprises account for the majority, more than 98% of the total of small and medium-sized enterprises, the majority of enterprises do not care much about the legal nature of form-based contracts that they’re using. A contract is just simply a “piece of paper” for the parties to legalize their transaction, or to facilitate tax declaration… On the contrary, there are also numerous enterprises that have built up a set of form-based contracts or even a common set of rules, which record the main contents of services or products they provide. The use of form-based contracts has helped enterprises to adapt better to the requirement of shortening the preparation time to execute such contracts. However, using form-based contracts without acknowledging their attached conditions could lead enterprises to adverse consequences.

Normally, a simple contract form of an enterprise just briefly records only the main contents related to goods/services or payment, with the thought that both parties agree to enter into the contract, sign the contract then the contract will automatically take effect without regard to the conditions on the subject, content and form of the contract as prescribed in specialized laws. People merely focus on the participants’ capacity and the voluntary will of the parties when entering into a transaction. Such individuals innocently believe that as long as the parties together agree to enter into a contract and sign in it, the contract shall automatically become effective. They, however, forget that the Civil Code is only a common law, enterprises must also check on the provisions prescribed in specialized laws depending on each specific case.

Firstly, enterprises should determine whether the form-based contract used is subject to the Law on the protection of consumers’ rights or not.

There is a variety of forms of contracts, economic contracts, business cooperation contracts, etc. In the relationship of supplying goods and/or services with consumers, a contract composed by organizations or individuals trading goods and/or services to do business with consumers is also considered as a form-based contract (Clause 5 Article 3 Law on the protection of consumers’ rights 2010) in which consumers are people purchasing or using goods and/or services for personal use or using for families or organizations, and organizations, individuals trading goods and/or services are any organization, individuals performing one, several or all of the stages of the investment process, from production to sales of goods or supply of services in the market for profit. Please notice that contracts entered into for business purposes or profit of individuals, organizations are not included in this.

In the relationship with the goods sellers/ services suppliers, consumers are deemed to be the weaker party. Hence, the Law on the protection of consumers’ rights contains a lot of provisions to protect the consumers’ rights that enterprises need to remark, specifically some as follows:

(i) Terms of the contract concluded and general trading conditions with consumers shall have no effect as prescribed in Article 16 Law on protection of consumers’ rights, in which there are some common problems that enterprises often encounter:

  • Excluding liability of organizations or individuals trading goods and/or services to consumers as prescribed by-laws;
  • Restricting or excluding the right to complain and take lawsuits by consumers;
  • Allowing organizations or individuals trading goods and/or services to unilaterally change the conditions of the contract agreed in advance with the consumers or the rules, regulations for good sales or service supply applies to consumers when buying and using goods and/or services do not specifically indicate in the contract;
  • Allowing organizations or individuals trading goods and/or services to unilaterally determine the consumers who fail to perform one or several obligations;
  • Allowing organizations or individuals trading goods and/or services to set forth or change the price at the time of delivery of goods or providing of services.

There have been so many cases that occurred in which enterprises encountered the aforementioned prohibitions of law and had to accept the contract cancellation, returned fees received and compensated consumers for the damage when disputes happened.

(ii) Secondly, regarding the time to review contracts: the Law on consumer protection rights also regulates that when signing the form-based contract, organizations or individuals trading goods and/or services must give reasonable time for consumers to consider the contract. Organizations or individuals trading goods and/or services must keep the concluded form-based contract until the contract expires (Article 17 Law on protection of consumers’ rights). 

(iii) In terms of general trading conditions: Organizations or individuals trading goods and/or services using the general trading conditions is obligated to publicly announce the general trading conditions prior to the transaction with the consumers and such conditions must be listed at a convenient place within the location of the transaction so that consumers can see.

Secondly, regarding the form of a contract.

In accordance with Clause 2 Article 117 of the Civil Code, the formality of a civil transaction is the condition for its effectiveness in cases where it is required by law. Therefore, when using a contract, enterprises should also carefully remark to check on the type of contract being used and collate with the relevant regulations if there is any obligations on the formality that must be complied, for example:

1.  According to the provisions of the law on consumer protection: Organizations and individuals trading in goods and services on the List of essential goods and services such as insurance, credit, internet, purchase and sale of apartments, etc. must register the form of contract, general transaction conditions with the competent state management agency in charge of protecting the interests of consumers.

2.  In accordance with the law on real estate business: Real estate business contracts must be made in writing. The notarization and authentication of contracts shall be agreed upon by the parties, except for cases where organizations, households and individuals sell, transfer, lease, or lease-purchase real estate on a small scale, irregularly; the contract in those cases must be notarized.

The benefits of using form-based contracts in business activities of enterprises are undeniable, but be a savvy trader and carefully ascertain legal issues relating to such contracts before signing to avoid “money to burn.”

If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.

This article is for general information only and is not a substitute for legal advice.

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“Cover” Song/Music, Some Issues To Note About Intellectual Property

In the context of opening up for integration and international exchanges taking place more and more widely, Vietnam’s music market has become vibrant with developing a series of young musicians, new singers, performance companies and performance organizations. The renewal of the popular song or remake (also known as a “cover”) the most favorite song also become “prevailing.” A young person needs to have a good voice, choose a famous song/music in the past or present, remix and sing in their creative way and post it on music service website, social networking website… This is a fast way to enter the music field. Moreover, the introduction from Chinese and Korean music and loving this music made many Chinese and Korean music translated or written new lyrics and re-presented. In music, it is not uncommon for many people to perform the same song at the same time. It is not bad to “cover” a song/music and “cover” a song/music to help the song be more widely spread in the music market. However, “cover” does not mean that the “cover” organization or individual can do whatever they want, even for non-commercial purposes, but that “covering” a song/music must respect the copyright of the original work and comply with the provisions of the laws.

When is a song/music protected by copyright?

A musical work (or a song/music) is the subject of copyright protection. According to the provisions of the Intellectual Property Laws, a musical work is a work expressed in the form of musical notes in a piece of music or other musical characters or fixed on phonograms or video recordings with or without lyrics, regardless of performance or non-performance. The copyright of a musical work arises since the work is created and expressed in a certain physical form, regardless of content, quality, form, medium, language, published or unpublished, registered or unregistered.

Thus, a song/music is protected by copyright as soon as the author composes it without copyright registration. Accordingly, the authors and copyright owners will have the rights as prescribed by laws: moral rights (the right to name the work, to put real or pseudonyms on the work; to have real names or a pseudonym when the work is published and used; to publish the work or allow others to publish the work; to protect the integrity of the work, not allow others to modify, mutilate or misrepresent the work in any way any form that is detrimental to the honor and reputation of the author …) and property rights (the right to do derivative works; public performance of works, reproduction of works; distribution, importation of the original works. or copies of the work; to communicate the work to the public by wire, radio, electronic information networks, or any other technical means; rent the original or copy the cinematographic work, program computer program…).

Some notes when performing or “covering” a song/music

According to the reality happening in the music market, we can divide the “cover” of a song/music into two forms as follows (i) “Cover” a song/music without making any changes to the content and tone of the original work; (ii) “Cover” the song/music but fundamentally changing the melody/lyrics of the original work or translating or writing new lyrics and re-presented based on Chinese and Korean music.

The form of “covering” a song/music without changing the content and melody of the original work is the re-presentation of the original work and the use of different alternative instruments such as guitar, piano. …. Then, they will upload the covered version to music services or social networking websites. This is the act of “public performance of the work” – an exclusive right of the work’s property rights granted by-laws to the copyright owner. Accordingly, the copyright owner has the exclusive right to perform or permit others to perform the performance of the work directly or through sound recordings, video recordings or any other technical devices accessible by the public. When organizations and individuals exploit and use this right, they must ask for permission and pay royalties and remunerations to copyright owners. Therefore, performing “cover” and downloading “cover” on music services or social networking websites, “cover” performers must obtain permission and pay royalties and remunerations to copyright owners. At the same time, they must ensure not to damage the honor and reputation of the authors. 

For the form of “covering” a song/music but having a fundamental change in the melody/lyrics of the original work or translating or writing new lyrics and re-presented based on Chinese and Korean music. This can be seen as performing a “derivative work,” an act permitted by laws. However, when doing derivative works, the performer needs to meet some conditions as follows:

  • The permission of the authors, the copyright owners;
  • Without prejudice to the copyright of the original works;
  • Paying royalties, remuneration and other material benefits to the copyright owners.

In addition, the cover works in this form will be protected by copyright in the form of derivative works of the covered work if they fully comply with the conditions prescribed by laws. 

Besides, individuals and organizations performing a “cover” of a song/music are not required to ask permission of the authors or copyright owners and do not have to pay remuneration, royalties, etc. to the copyright owners in some cases as follows:

  • Translating works into braille or other languages ​​for the visually impaired;
  • Using for scientific research, personal teaching, or performance in cultural activities, propaganda and promotion without collecting money in any form;
  • The original work has become a work of the public (after the expiration of the term of protection of the work, which is 50 years from the date of the authors’ death).

However, even when performing “cover,” using in any case, the performer needs to ensure that it does not affect the normal exploitation of the song/music of the copyright owners; does not infringe upon the rights of the authors, the copyright owners and must fully state the author’s name, origin, and origin of the song/music.

Music is a creative artistic activity. Each song/music will have its style of musicians and singers. Vietnamese music can affirm its position and achieve outstanding achievements in the world music market. Respecting copyrights and respecting authors’ creativity is one of the most critical factors. Before performing “cover,” using or acting related to copyright in particular and intellectual property rights in general, we must consider whether our act requires permission from the authors, whether royalties are required to be paid to the copyright owners or any intellectual property rights are infringed. We can take reasonable actions to ensure compliance and respect for the authors’ creative spirit, the copyright owners’ effort and money, who created the works.

If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.

This article is for general information only and is not a substitute for legal advice.

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