Handling Violations of Competition Laws in Vietnam

Foreign brands are increasingly popular in the Vietnam market as Vietnam economy integrates into world economy. The openings of economy creates opportunities to attract foreign investment into Vietnam through establishment of companies. To continue to protect the fair competition, and interest of consumer, it is important that the Vietnam state authority ensures the business environment. Accordingly, violations related to competition will be handled in accordance with the law.

 

Dispute lawyers in Vietnam

Acts of violation of competition under Vietnam laws are defined in Article 1 of Decree 71/2014 / ND-CP, including: violations of regulations on control of acts of restraint of competition; acts of violating regulations on acts of unfair competition; violations of other provisions of law on competition. According to the provisions of law, the above acts shall be subject to the forms of punishment and fine. The most common and most powerful impact on businesses and consumers are the violation of unfair competition.

In practice, there are a number of instances where unfair competition acts are associated with intellectual property rights violations, which have a significant impact on business activities of enterprises in the same field; violation of business secrets; activities of advertising that are prohibited i.e. make direct comparison against competitor, provide falsified or confused information to consumers…

If committed acts of unfair competition, the violator will be subject to fine level from VND 10,000,000 to VND 140,000,000. At the same time, additional measures and remedies will be applied, depending on the seriousness of the breach, such as the revocation of the enterprise registration certificate; deprivation of the right to use licenses or practice certificates; confiscation of material evidences and means used to commit the violation, including the confiscation of profits earned from the commission of the violation; to restructure the enterprise, rectify to the public…

From the management of state authority, the detection and handling of unfair competition acts create conditions for enterprises to have equal opportunities in the market economy. From the enterprise’s perspective, it is important to continuously review its business activities in Vietnam to ensure compliance to competition law by its lawyers.

ANT Lawyers – a  law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

 

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Several Noted Points on Law Competition of 2018 in Vietnam

Vietnam Law on Competition has been adopted and will be effective on July 1st, 2019. The competition law of 2018 has changed in comparison with the Law on Competition 2004.  These changes are fundamental which enterprises should be aware of when entering into Vietnam through M&A activities. Competition lawyer should be consulted for update and development to avoid non-compliance.

 

Competition Lawyers in Vietnam

Firstly, the Competition Law 2018 gave up regulations on the limit of acts of economic concentration. Accordingly, Article 30 prohibits an enterprise from conducting economic concentration that has the potential to cause significant adverse effects on competition in the Vietnamese market. Contrary to previous regulations, Competition Law 2004 prohibits economic concentration if the combined market share of enterprises participating in economic concentration accounted for more than 50% in the relevant market.

Secondly, the Competition Law 2018 under Article 112 provides clemency policy for enterprises violating competition regulations. Accordingly, enterprises which voluntarily declare to help the National Competition Committee detect, investigate and deal with prohibited competition restriction acts will be exempted or reduced penalties according to the leniency policy. The leniency policy is applicable to no more than three first enterprises applying for leniency to the National Competition Commission.

Thirdly, unlike the Competition Law 2004, the Competition Law 2018 specifies the maximum fine for violations of competition law.

For organization:

–Violating regulations on the acts of economic concentration: a maximum fine of 5% of the total turnover of the business on the relevant market.

–Violating regulations on unfair competition: a fine of up to VND 2 billion

–Violation of other regulations: up to 200 million VND.

For individual, the fine level is 50% of the organization’s level.

Fourth, on threshold of economic concentration. The Competition Law 2004 stipulated that for centrally-run enterprises with a market share of between 30% and 50% in the relevant market, the competition authority must notify the competition authority before conducting the economic concentration. At present, the Competition Law 2018 is not regulated specifically as above, but only the notification threshold of economic concentration is determined based on one of four criteria as following:

-Total assets on the Vietnamese market of enterprises participating in economic concentration;

-The total turnover in the Vietnamese market of enterprises participating in economic concentration;

-Transaction value of economic concentration;

-Market share in the relevant market of enterprises participating in economic concentration.

Finally, new regulation on the time limit for dealing with a breach of competition law. Previously, to solve and deal with cases of economic concentration violation, it is necessary to undertake a preliminary investigation and formal investigation. In particular, the preliminary investigation is 30 days; formal investigation is 60 days with unfair competition; 180 days with the agreement restriction competition, economic concentration. Competition Law 2018 no longer stipulates two phases of the above investigation, but only that the investigation period is 09 months for restricted competition; 90 days with economic concentration; 60 days with unfair competition cases.

ANT Lawyers is a law firm in Vietnam located in the business centers of Hanoi, Danang, Ho Chi Minh city. We provide convenient access to our clients. Please contact our lawyers in Vietnam for advice via email ant@antlawyers.vn or call our office at +84 28 730 86 529.

 

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US Anti-Dumping and Countervailing Duty Petitions of Tire Products From Vietnam

On May 13, 2020, The United States Department of Commerce (“DOC”) has received an investigation request for anti-dumping and countervailing measures against passenger and light truck tires (“PVLT tires”) originating from Korea, Taiwan-China, Thailand and Vietnam. The mandatory respondents being US importers have also consulted with anti-dumping and countervailing duty lawyers in Vietnam and US to prepare for the investigation cooperation.

 

In this case, the plaintiff alleges that the tires under investigation were dumped and subsidized into the United States market, causing significant damage to the domestic manufacturing industry. In 2015, the same petitioner succeeded in securing anti-dumping and countervailing duties on PVLT tires from China.

The scope of these investigations is passenger vehicle and light truck tires. Passenger vehicle and light truck tires are new pneumatic tires, of rubber, with a passenger vehicle or light truck size designation. Tires covered by these orders may be tube-type, tubeless, radial, or nonradial, and they may be intended for sale to original equipment manufacturers or the replacement market. The products covered by the investigations are currently classified under the following Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings: 4011.10.10.10, 4011.10.10.20, 4011.10.10.30, 4011.10.10.40, 4011.10.10.50, 4011.10.10.60, 4011.10.10.70, 4011.10.50.00, 4011.20.10.05, and 4011.20.50.10.  The scope could also include tires entering under HTSUS subheadings 4011.90.10.10, 4011.90.10.50, 4011.90.20.10, 4011.90.20.50, 4011.90.80.10, 4011.90.80.50, 8708.70.45.30, 8708.70.45.46, 8708.70.45.48, 8708.70.45.80, 8708.70.60.30, 8708.70.60.45, and 8708.70.60.60.

Petitioner alleges the following dumping margins: 45.95% to 195.20% for South Korea, 21% to 102% for Taiwan, 106.4% to 217.5% for Thailand, and 14.73% to 33.06% for Vietnam. The petitions also detail numerous government subsidies benefitting Vietnamese tire producers, including loans, tax breaks, and grants. PVLT tire imports from these four countries shot up nearly 20% from 2017 to 2019, reaching 85.3 million tires, valued at 4.4 billion dollars, last year.

According to data from the United States International Trade Commission (“USITC”), the export value of Vietnam’s investigated products to the United States market reached 12.1 million dollars in 2019, accounting for about 6.7% of total United States imports of this product.

In Vietnam, the product under investigation is a product that has been warned by the Ministry of Industry and Trade of risks of foreign investigation by applying trade remedies measures from July 2019 with a high level of warning. Therefore, in the past time, the Ministry of Industry and Trade has actively coordinated and worked with associations and exporters to the United States to actively capture information and respond in case of initiating an investigation. Under United States regulations, the DOC will consider initiating an investigation of the case within 20 days of receiving it. In the event that the DOC decides to initiate an investigation, the Ministry of Industry and Trade of Vietnam will closely coordinate with export associations and enterprises in investigating the case and have timely support and treatment measures to protect the legitimate rights and interests of Vietnamese enterprises.

Vietnam international trade lawyers in competition, and anti-dumping practice will need to be involved with the process including data collection and possibly initial drafting of questionnaire responses in cooperation with US anti-dumping and countervailing duty lawyers to defend the case.

 

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Solving commercial disputes by negotiation

When participating in economic relations, the occurrence of disputes and conflicts between individuals and organizations is inevitable. In the dispute, all parties want to find the solution to resolve the dispute to best ensure their rights and affect the relationship between the parties is the lowest, so as to achieve efficiency but less costly time and money. Therefore, the choice of dispute resolution method is extremely important. In fact, the most commonly used methods of dispute resolution include negotiation, mediation, arbitration, and court.

Competition Lawyers in Vietnam

Negotiation is the first method of settlement in the dispute resolution process, which is reflected in the fact that the parties in the dispute actively meet, discuss and agree on each party's rights and obligations.

The law on dispute resolution does not require the parties to negotiate. Therefore, from the process of organization, implementation, the presence of the parties, the rights and obligations of the entities, the negotiation results are not subject to the adjustment of legal regulations. It all depends on the goodwill of the parties. In case an agreement is reached in the negotiation meeting, and then one of the parties fails to comply, the parties cannot request the competent state agency to carry out the enforcement.

The mode of negotiation is usually prioritized by the parties when the dispute occurs, because this method is adjust by the law and not restricted by strict regulations on the process of negotiation, participants, time, as well as inexpensive money. Due to the self-settlement with each other, disputes should not be greatly enlarged, without affecting the reputation of the parties. Also because there is no regulation of the law, there is no enforcement on the bargaining results.

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The changes of laws will be monitored by ANT Lawyers. For advice or service request, please contact us via email ant@antlawyers.vn or call +84 28 730 86 529

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Mergers and acquisitions

Mergers and acquisitions (M&A) is an activity that takes control of a business through owning part or all of that business. This is the term for a merger, consolidation or acquisition between two or more businesses together. In Vietnam, the system of legal documents does not have the concept of mergers and acquisitions, this is the commercial term. In legal terms, this term is understood to include activities of consolidation, merger and acquisition of enterprises, specifically:

Merger of an enterprise is the transfer of all of its lawful assets, rights, obligations and interests to another enterprise and at the same time terminating its business or its existence. The acquirer company still exists and inherits all assets, rights and obligations of the acquired companies.

Consolidation of enterprises means that two or more enterprises transfer their entire properties, rights, obligations and lawful interests to a new enterprise and at the same time, consolidating companies shall cease to exist.

Acquisition of an enterprise is a activity that an enterprise directly or indirectly acquires all or part of the capital and assets of another enterprise sufficient to control and dominate the enterprise or a business line of the acquired enterprise. Acquired enterprise still exist, only changing the enterprise structure.

M&A always requires strict legal compliance with both acquired and acquirer enterprise. Under Vietnamese law, merger, consolidation and acquisition are one of the forms of economic concentration. Recently, economic concentration is the legal acts which have been implemented quite popular in Vietnam. Along with the positive effects, this activity also has the potential to affect competition in the market. Therefore, the merger activity is not only governed by the Enterprise Law but also regulated by the Competition Law. The current Competition Law has amended and prohibited businesses to implement economic concentration that has an impact or is likely to cause significant anti-competitive effects on the Vietnamese market.

On the economic side, the economic concentration will reduce competition (because competitors cooperate with each other and the market access becomes difficult) and distort the market leading to damage to consumers. Stemming from the need to control economic concentration activities to avoid the formation of large enterprises with the power to control the market and unfair competition, create conditions for new businesses to join in market, Competition Law creates a legal corridor that allows state management agencies to control economic concentration activities, and accordingly adjust M&A activities.

Each M & A form has governed by its own legal provisions. Therefore, before conducting any M&A activity, investors need to carefully understand the provisions of the law to best protect their rights and interests in accordance with the provisions of law.

How ANT Lawyers Could Help Your Business?

Please click here to learn more about Corporate and M&A Legal Service or contact our lawyers in Vietnam for advice. Send us request via email at ant@antlawyers.vn or call us at +84 28 730 86 529

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