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[News] Apolat Legal signed a cooperation agreement with the faculty of Law – Ton Duc Thang universityadmin
On February 19, 2020, representatives of Apolat Legal, Ms. Pham Thi Thoa and Mr. Mai Hoang Phuoc representing faculty of Law – Ton Duc Thang University, signed a cooperation agreement in training and special practice.
At the signing ceremony, Mr. Mai Hoang Phuoc said, ‘’Apolat Legal is a firm with strengths in legal practice, especially in the field of business legal consultancy. The cooperation and support of the firm with the Faculty of Law – Ton Duc Thang University in training and special practice is an extremely valuable resource’’.
Ms. Pham Thi Thoa expressed ‘’Faculty of Law – Ton Duc Thang University is a unit with many innovations in the philosophy and orientation of training the Bachelor of Law: associating special training with the practice of Law. Therefore, the cooperation with strategic units has the strength of practicing Law in all fields, is an urgent and long-term demand ”.
The representatives of Apolat Legal expressed honor in cooperating with the faculty of Law. Committing to always accompanying by Apolat Legal on the cooperation.
[Legal Updates] The European Parliament approved the Free Trade Agreement between Vietnam and the European Union (EVFTA)admin
1| The European Parliament approved the Free Trade Agreement between Vietnam and the European Union (EVFTA)
On February 12th, 2020, the European Parliament (EP) officially ratified the Free Trade Agreement (EVFTA) and Investment Protection Agreement (EVIPA) between Vietnam and the European Union at the number of support votes are 401/633 and 407/633 respectively.
For Vietnamese goods, right after the EVFTA Agreement comes into effect, the EU will eliminate import duties on about 85.6% of tariff lines, equivalent to 70.3% of export turnover of Vietnam to the EU. After seven years from the entry into force, the EU will abolish import duties on 99.2% of tariff lines, equivalent to 99.7% of export turnover of Vietnam. For about 0.3% remaining exports, the EU pledged to give Vietnam a tariff-rate quota (TRQ) with the quota import tax to 0%.
The two sides will begin to eliminate tariffs according to the committed schedule from the effective date of the EVFTA Agreement. According to EU regulations, the EVFTA Agreement shall need to be approved by the European Council to take effect.
2| New guide on issuing Ownership Certificates for condotel projects
On February 14th, 2020, the Ministry of Natural Resources and Environment (MONRE) issued Official Letter No.703/BTNMT-TCQLDD to the Departments of Natural Resources and Environment (DONREs) of provinces and cities under central authority to provide specific guidance on the usage regime of land for some new types of real estate.
In Official Letter No.703/BTNMT-TCQLDD, the MONRE has guided the land use regime and land use term for tourist apartments and tourist villas (condotel). Specifically, land for implementing condotel projects must be of commercial, service land type, and the maximum land use term is from 50 to 70 years, according to Article 126 of the Land Law.
In addition, Official Letter No.703/BTNMT-TCQLDD also provided guidance if condotel projects are eligible to be transferred under the Real Estate Business Law, the certificate of construction work ownership for the transferee shall be granted in accordance with Decree No. 43/2014/ND-CP and Decree No. 01/2017/ND-CP of the Government.
1| Our Prominent Legal Article In January 2020
First, our Senior Partner – Ms. Pham Thi Thoa had a very interesting article related to the intellectual property which was published on The Saigon Times under the following name – From “domain speculation” to … “brand speculation”. To read and understand the entire article, please visit here.
Second, our Associate lawyer – Ms. Thieu Thi Kieu Thu also had a legal article about the “Limits of the recognition mechanism of well-known trademarks in Vietnam”. This article mentioned the popularity of the trademark and the legal issues around it as well as presented some problems in the recognition mechanism of well-known trademarks in Vietnam. To read the entire article, please visit here.
2| Remarkable News And Legislations In January 2020
European Parliament Committee on International Trade (INTA) adopted the EU-Vietnam Free Trade Agreement
On January 21st, 2020, the European Parliament Committee on International Trade (INTA) adopted the EU-Vietnam Free Trade Agreement (EVFTA).
Under the above agreement, Vietnam will reduce 65% of import duties on goods from the EU as soon as EVFTA takes effect. The remainder will be removed in a 10-year period.
In addition, the EU will reduce more than 70% of tariffs on Vietnamese goods immediately after the agreement takes effect. The remainder will be cleared in the next 7 years.
The European Parliament (EP) will vote on the EVFTA and the Investment Protection Agreement (IPA) at its February 2020 meeting in Strasbourg, France. If approved, the trade agreement will officially take effect.
3| The Remarkable Executed Legislations In January 2020
|No.||DOCUMENT TITLE||EXECUTION DATE||EFFECTIVE DATE|
Decree No. 01/2020/ND-CP amendments to the Government’s Decree no. 84/2015/ND-CP dated September 30, 2015 on investment supervision and assessment
Decree No. 02/2020/ND-CP amendments to some articles of the Government’s Decree no. 131/2015/ND-CP dated December 25, 2015 on guidance on national important projects
Decree No. 06/2020/ND-CP amends and supplements Article 17 of the Decree No. 47/2014/ND-CP dated May 15, 2014 regulates the compensation, support, and resettlement upon land expropriation by the State
|4.||Decree No. 07/2020/ND-CP on the special preferential import tariff the for implementation of Asean – Hong Kong, China free trade agreement in the period 2019 – 2022||05/01/2020||20/02/2020|
|5.||Decree No. 08/2020/NĐ-CP on operations and performance of bailiff
Circular No. 01/2020/TT-BCT on import of raw material tobacco under tariff quotas in 2020
Circular No. 03/2020/TT-BCT on import of raw material tobacco under tariff quotas in Comprehensive and Progressive Agreement for Trans-Pacific Partnership
Inheritance rights are one of the basic rights of citizens that an heir is an individual who must alive at the time of opening the inheritance or being born and alive after the time of opening the inheritance. There is no limitation on beneficiaries of inheritance rights. Inheritors who are not individuals still have inheritance rights, however, this right is not automatically and must comply with the lawful will of the person leaving the inheritance. Therefore, the legal entity has the right to inherit and other related rights as an individual whether it had a testament that inheritance to the legal entity.
After opening the inheritance, the relevant persons must determine whether there is a legacy, whether the will or not, who is the heir. When there is a lawful testament, the inherited property is only divided among persons were mentioned in the testament. However, in some cases, if the testament does not grant the inheritance or the inheritance is less than two-thirds of that interest, the person may request co-inheritance or initiate a lawsuit to divide the inheritance to receive the entitlement the estate is equal to two-thirds of the interest of a lawful heir as a minor child, father, mother, wife or husband; children have become an adult without the working capacity of the testator. In addition, when the will mention the heirs, but do not specify the part of each heir, the estate is equally divided among those appointed in the testament, unless the heirs designate it.
In case of do not have the testament, the estate will be divided in accordance with the law on inheritance. Those who are entitled to inherit according to testament and do not according to testament must execute the procedures for declaration of inheritance at any notary office in the province, city or ward People’s Committee for The estate must register ownership, usually real estate.
In case of being the only heir, the inheritance shall be declared, otherwise in case of many other co-heirs that have to make an agreement on the division of inheritance. To execute these procedures, the person entitled to inheritance must make a personal relationship report at one of the agencies such as the notary office and the People’s Committee of the ward where they reside.
In case of one of the heirs refuse to accept the estate that has to make a written refusal to accept the estate must be submitted to accompany the dossier. The notary office or the people’s committee will then open the listing procedure for the property. After 15 days, if there were no disputes, complaints or denunciations arising from the estate, the notary public shall certify the written declaration of inheritance or agreement on the division of inheritance.
All of the above actions must be executed within a certain period of time called the statute of limitations for an inheritance, if were beyond which the person entitled to inheritance is deemed to have no right to take legal actions to request division inheritance. The Civil Code prescribes the statute of limitations for an heir to request the division of an estate to be 30 years for real estate and 10 years for movables, starting from the time of opening the inheritance. In cases where the property is managed by a person, regardless of whether it belongs to or inheritance, when the statute of limitations above has expired, the estate manager has ownership rights over the estate. If the estate has no manager, the possession belongs to the State.
However, the answer to the question if the person who owns the inheritance has passed the 30-year time limit for real estate and 10 years for the movables but how does the inheritance statute of limitations still exist? This case is an example in the case of a manager, possessing property for a long time ago, but then the Court decided to declare a person missing, so time management, possession may exceed the statute of limitations for which the statute of limitations for initiation of a claim for division of inheritance remains. Therefore, the possession of the estate for many years is no longer a prerequisite for deciding the property rights because the heir still has the right to inherit.
In addition, the beneficiary is the person who is responsible for fulfilling the property obligations within the scope of the estate left by the deceased person, unless otherwise agreed. It is understood that if the inheritance is greater than the property obligation of the estate heir, the inheritors are obligated to pay these obligations, where the inheritance is smaller than the case of the person leaving the estate shall be deemed to be such property to fulfill the obligations and have no inheritance.
In addition, an issue related to the inheritance that has not been specified by the law, it is clear that when inheriting the yield and income from the inheritance received by the heir. The question is whether the estate obligations left by the person leaving the estate have a right to use yield and income from the estate for payment? In our opinion, yields and income arising from an inheritance estate are part of future assets belonging to the inheritance, thus still have the right to use these benefits and profits to make payments of obligations of the person leaving the estate.
On November 12rd, 2018, the 14th National Assembly approved Resolution No. 72/2018 / QH4, ratifying the Agreement on Comprehensive and Progressive Partnership for Trans-Pacific Partnership (“CPTPP“) and other relevant documents at the 6th Session. As stated in the New Zealand Foreign Ministry’s Document No. LGL / CPTPPD / 2018-15 on November 26th , 2018, the CPTPP Agreement has entered into force for Vietnam since January 14th , 2019.
After the CPTPP Agreement comes into effect, many legal documents of Vietnam must be amended to conform and comply with the rules and obligations when Vietnam is a member of the CPTPP, this requirement is also set for Law on Intellectual Property 2005, as amended in 2009 (“Law IP“).
Accordingly, international conventions on intellectual property that Vietnam must attend as follows:
- WIPO’s Budapest Treaty on International Accreditation for the Submission and Sub-Microbiology for the Purposes of the Patent Procedure (1977), as amended on September 26th , 1980, limitation: 2 years to joined (14/01/2021);
- WIPO WCT Treaty on copyright, adopted in Geneva on December 20th, 1996, limitation: 3 years to join (January 14, 2022);
- WIPO’s WPPT Treaty on Performances and Sound Recording, adopted in Geneva on December 20th, 1996, limitation: 3 years to join (January 14, 2022).
And it is recommended (optional) to participate in the Hague Agreement for the international registration of protection of industrial designs.
Basically the provisions of Vietnam’s IP Law are relatively similar to those of the IP Law in the CPTPP, but there are still some especial differences as follows:
Firstly, the CPTPP encourages the member countries to prioritize the use of e-commerce trademark registration system and transparent, concise in the process of trademark registration and extension, ensuring to facilitate the receipt of information and applicant’s response and opportunity for objections of third-party.
Secondly, for the protection of industrial designs, the CPTPP requires the member countries to fully protect. The design of the product is not only protected in one part of the product, but also in a part of the product if the product is included in the overall brand, the protection must comply with the regulation of WTO.
Thirdly, in contrast to the current provisions of IP Law in Vietnam, contracts for the use of industrial property objects, also known as licensing contracts, are not required to be registered.
Fourthly, the CPTPP extends the scope of sound protection (current laws only allow the protection of words, symbols, words and images), besides encouraging countries to protect the odor, Vietnam only implements this obligation to protect commercial trademarks which expressed by sound forms after 03 years from the valid date of CPTPP.
Fifthly, regarding the determination of a well-known mark, the CPTPP requires countries not to use the criteria of the number of countries that have protected the trademark, have recognized the well-known marks, or have been included in the list of well-known marks to decide whether to protect a well-known trademark or not?
Sixthly, the CPTPP requires strictly handling of IP infringements, both criminally dealing with trademark and copyright infringement. Trademark and copyright infringement during the good preparation for export and transit are also fined. For theft of trade secrets (e.g. intentionally accessing unauthorized computers, appropriating trade secrets, unauthorized disclosure of trade secrets via computer systems) were criminally handled.
Finally, encouraging countries to use copyrighted computer software.
In addition, when studying the IP Law, we should also pay attention to the automatic protection principle of copyright and the principle of independent protection, whereby the protection rights of authors are automatically protected in the member countries of CPTPP. This right will be effective concurrently in all countries as soon as new work is released and is copyrighted. Moreover, the owner has not to register the protection procedure again in the other country. For the principle of independent protection, an individual or organization within the territory of a member country of CPTPP apply for a protection title for an invention, utility solution, industrial design or trademark, they shall continue to apply for protection titles for products in other CPTPP member countries if they protect industrial property rights in these countries when business there.
The CPTPP Agreement is expected to bring many new opportunities for Vietnamese businesses in the process of integration with the world’s largest economies. Since the negotiations, intellectual property in the CPTPP has been one of the prominent areas of top concern by member states. Therefore, Vietnam’s IP Law has to revise the legal system of intellectual property to conform to international regulations.
With the new features by joining the CPTPP, Vietnamese businesses need to understand the content of CPTPP to protect their l rights in case of encountering litigation and disputes with foreign partners.
Traveling to Southeast Asian countries, including Vietnam, is developing both quantity and quality, which has led to attracting more foreign corporations to invest in the luxury hotel sector in Vietnam through mergers and acquisitions (M&A). Starting from the owner of the target hotel (hereinafter referred to as “the Hotel“) may be an individual(s)) or a company(ies) with the type of the enterprise as the single-member company limited, the multi-liability company limited, the joint-stock company, etc. To make it more convenient for the presentation, I assume that the Hotel is owned by an entity with the form of a single-member company limited (hereinafter referred to as the “the Company“) owned by a Vietnamese individual (hereinafter referred to as the “Owner“). So how do those acquisitions take place? Let’s take a look at some options that can be selected for M&A deals:
1| Direct Capital Acquisition Structure
The Owner shall transfer its contributed capital in the Company to the investor under capital transfer agreements. Consequently, the investor will become an equity member entirely owning the Company. Therefore, by owing the Company, the investor will thus indirectly own the Hotel.
In general, the above structure is considered to be the easiest to implement because the parties do not spend too much time on implementing procedures, it only consists of two main steps: signing a transfer contract and changing the owner on the enterprise registration certificate. However, the tax obligations in the case of using the Direct Capital Transfer structure is quite high, the personal income tax imposed for the Owner is 20% and is usually calculated on the difference between the transfer price and charter capital. In addition, conducting legal due diligence on Company documents is complex or simply dependent on the time and scale of the Company’s operations.
2| The Indirect Capital Acquisition Structure
(a) The Investor and the Company establish a multi-liability company limited (“Newco”)
The Investor and the Company contribute to establishing the NewCo, in the form of a two-member liability limited company, with the charter capital is equal to the value of the Hotel contributed by the Company and plus N* dongs contributed by the Investor in cash (N* maybe a little amount of money, for example 1 billion dongs). Thus, the charter capital of NewCo is the sum of the value of the Hotel and 1 billion dongs. At the complement of this step, the new owner of the Hotel will be under the NewCo.
The Company shall transfer its contributed capital in NewCo into the Investor under the capital transfer agreement(s) (“CTA”). The transferred price will be equal to the initial contributed capital of the Company in NewCo. Consequently, the Investor will become an equity member entirely owning the NewCo. NewCo is the owner of the Hotel, therefore, by owing the NewCo, the Investor will thus indirectly own the Hotel. After the complement of the Transaction, NewCo shall need to be converted into the form of a single-member limited company.
If the parties choose this structure, the tax obligations in the transaction will be low due to the minimum value difference between the transfer price and the capital contribution by the Hotel and the due diligence process is quite simple because Newco is a company that has just been established. However, this process will take a lot of time due to the procedures such as establishing Newco, contributing capital, transferring properties and updating the licenses related to the operation of the Hotel for Newco that the Company is the owner before. In addition, the valuation of the Hotel to contribute to Newco must also be based on valid documents to prove the value of the Hotel.
Besides, the parties may also choose the type of joint-stock company to instead of establishing the multi-liability company limited. In this case, an individual is required to contribute to capital (just a little money) to comply with the provisions of the enterprise law. In general, the steps are similar to the establishment of a limited liability company, however, there is a slight difference in tax obligations because the applied tax rate is 0.1% at the transfer price of the transfer agreement.
(b) The Company is converted from a single-member company limited into a joint-stock company and the shareholders of the Company shall transfer their shares to the Investor
In the beginning, the Company is converted from a single-member company limited into a joint-stock company with three individual shareholders: the Owner and two individuals. After that, shareholders shall transfer their shares in the Company to the Investor. Consequently, the Investor will become an equity member entirely owning the Company. Given that the Company is the owner of Hotel, by owing the Company, the Investor will thus indirectly own the Hotel.
If the parties agree to choose the above structure, the tax obligations imposed by the transferor will be relatively low because the personal income tax applied in this case is only 0.1% of the transfer price of the transfer agreement. The steps taken are not too complicated because the only two main steps are to convert the Company type from the single-member company limited to a joint-stock company and to transfer capital, the sub-licenses of the Hotel still maintain because the owner of the Hotel is still the Company.
In conclusion, an M&A deal in fact is not as simple as what was presented, to make a more specific consideration, it is necessary to understand the facts and needs of the parties. The structure mentioned above is the basic structures that can be applied for conducting the merger, acquisition of the hotel. The choice of the best structure depends greatly on the unity and needs of the parties involved in the transaction.