HOW FOREIGNERS COULD MARRY VIETNAMESE WIFE

When a foreigner marrying a Vietnamese, this is cross cultural marriage with challenges and complexity in relationships which could be legally difficult.  The Vietnam laws on Marriage and Family on marriage and family relations involving foreign elements provide legal grounds to avoid false marriages to gain citizenship or conduct human trafficking.

The following should be taken into consideration when a foreigner marrying a Vietnamese. However due to the complexity, it is suggested family lawyers in Vietam to be consulted to ensure the correct processes and procedures are carried out in timely manner:

1.Marriage consultation:

If marriage registration between a foreigner and a Vietnamese belongs one of the following cases, Vietnamese citizen must be consulted by the provincial Marriage Consultancy Center: i) the age gap between two partners is 20 years or more; ii) this is the third marriage of the foreign partner, or the foreign partner has gone through a divorce with a Vietnamese citizen; iii) the partners do not completely understand about the families and backgrounds of each other; about the languages, traditions, customs, cultures, and laws on marriage and families of each other’s country.

After being advised on marriage consultation, Vietnamese citizen will be issued a certificate by Marriage Consultancy Center (hereafter referred to as Certificate) which is part of the application dossier.

When the Vietnamese citizens is fluent in a foreign language or foreigner is fluent in Vietnamese, and  the interviews at the Justice Department show that both sides have an good understanding of family circumstances, personal situation, and the understanding of language, customs, traditions, culture, laws on marriage and family in each country, the Certificate will not be needed.

2.Submission for marriage registration

One of two parties would submit directly to provincial Department of Justice of province where the Vietnamese citizen applicant resides.  A dossier of marriage registration is prepared including the following papers of each party:

a) The marriage registration declaration (standard form);

b) The papers of marriage status of each party:

Vietnamese shall provide the written certification of marital status issued by the People’s Committee where he/she resides.

Foreigner shall provide the documentary evidence on marital status of foreigners  issued by a competent agency of the country of which the applicant is a citizen.  In cases where foreign laws do not prescribe the certification of marriage status, it can be replaced by the certification of oath taken by the applicant that he or she concurrently has no wife or husband, in accordance with the laws of those countries; the written certificate of marriage eligibility issued by a competent agency of the country of which the applicant is a citizen (unless laws of this country do not regulate about this document); for foreigners who have already been divorced with Vietnamese citizens at foreign competent agencies, they must submit the written confirmation that the divorce which carried out abroad have been recorded in civil status book as prescribed by law of Vietnam.

c) The medical examination from a Vietnamese or foreign competent health organization, certifying that such person does not suffer from mental diseases or other diseases which make a person incapable to aware or control his/her acts;

d) Copies of personal papers, such as identity card or passport, passport or papers of substitute value such as travel document or residence card;

e) Copies of the household registration book, the temporary residence book (for Vietnamese citizens living in the country); permanent residence card, temporary residence card or temporary residence certificate (for foreigners residing temporarily or permanently in Vietnam).

f) Certificate of Marriage Consultancy Center on marriage to a foreigner that Vietnamese citizens have been given advice for marriage in compulsory cases mentioned above.

All documents provide by parties have to have valuation within 6 months to the date when the dossier is received.

3. Interviews for marriage registration to a foreigner in Vietnam

Within 15 days as from the date of receiving the complete and valid dossiers as well as fees, the provincial Department of Justice shall have the responsibilities to implement the direct interview at head office for both marriage partners in order to check, clarify personal matter, voluntary marriage and extent of understanding each other of both marriage partners.

If the interview result shows that two parties fail to understand status of each other, the provincial Department of Justice shall make an appointment for re-interview; the next interview shall be performed 30 days after the preceding interview.

In cases there are issues which need to be verified, the provincial Department of Justice dshall carry out necessary procedures to verify.

4. Certificate of marriage registration in Vietnam

After interviewing both marriage partners, studying and verifying the marriage registration dossiers, opinions of police agencies (if any), the provincial Department of Justice shall report result and propose settlement of marriage registration to submit to provincial People’s Committees for decision, enclosed with 01 set of marriage registration dossier.

Within 05 working days, after receiving the written submission of the provincial justice department together with the marriage registration dossier, the chairman of the provincial People’s Committee shall sign in the certificate of marriage and return dossier to the provincial Department of Justice for holding the ceremony for marriage registration.

In case refusal for marriage registration, provincial People’s Committees shall have a document clearly stating reasons thereof and send it to the provincial Department of Justice in order to notify both marriage partners.

5. Ceremonies for marriage registration in Vietnam

Within 05 working days, after the Chairman of the provincial People’s Committee signs the marriage certificate, the provincial Department of Justice shall hold ceremony for marriage registration.

The marriage registration ceremony shall be solemnly organized at the office of the provincial Department of Justice. When the marriage registration ceremony is held, both marriage partners must be present. The representative of the provincial Department of Justice shall preside over the ceremony, requesting both parties to state their final intention on voluntary marriage. If they agree to marry each other, the representative of the Department of Justice shall record the marriage in the marriage registers, requesting each party to sign on the marriage certificate, the marriage register and hand over the original marriage certificate to the husbands and wives, each with one certificate.

The marriage certificate shall be valid from the date the marriage registration ceremony is organized as provided. The grant of copies of the marriage certificate from the original registers shall be implemented by the provincial Department of Justice at the requests of the wives or husbands

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HOW FOREIGN INVESTORS COMPLY WITH REPORTS SUBMISSIONS IN VIETNAM

Foreign investors setting up business in Vietnam have to comply with statistics report submissions according to Vietnam laws.  To ensure compliance, corporate lawyers should be consulted to ensure compliance with reports applicable to foreign owned enterprises in Vietnam.

As the current regulation, foreign owned enterprises are obliged to submit monthly, quarterly, six month and annual reports to the Vietnam Department of Statistics or State agency for foreign direct investment of respective province or city.

Monthly reports are applicable to businesses and projects operating in the industry: mining, processing industry, electricity, gas, water supply, waste disposal, water treatment, information and communications, real estate, transport, warehousing, trade and services.

Quarterly reports are applicable to businesses and projects operating in agriculture, forestry and fisheries, construction;

All foreign owned enterprises have to report every 6 months on employment and income of the employee;

On annual basis, all foreign owned enterprises have to submit reports on the identification information of the business; financial indicators reflecting business results including revenue by business lines, taxes, fees, expenses, and profit; and capital investments made during the year by investment sources and investment category.

We at foreign investment practice of ANT Lawyers, a law firm in Vietnam with offices in Hanoi and Ho Chi Minh City would be able to assist clients in regulatory and licensing matters relating to the investment and the operation of the foreign investor enterprises in Vietnam.  We could be reached at email:ant@antlawyers.vn or office tel: +848 35202779.

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DISPUTE RESOLUTION THROUGH ARBITRATION

Dispute resolution methods are litigation, negotiation, mediation and arbitration. Handing disputes requires litigation law firm with dispute lawyers in Vietnam having experience and knowledge to provide resolutions to complex cross-border issues, commercial and civil disputes.

In the current business environment, most business agreements could contain a clause stipulating that disputes arisen must be resolved in arbitration.  For a dispute to be referred to arbitration, there must be a valid arbitration agreement in writing, either as an arbitration clause within a contract or a separate agreement.  If the agreement is included within the context of a contract, the arbitration clause is considered independent, and any modification, extension, or termination of the contract does not affect the validity of the arbitration clause. Vietnamese law allows for a written arbitration agreement to take the form in any written form, so long as the writing clearly indicates the parties’ intent to resolve any dispute via arbitration. If a dispute falls within the scope of a valid arbitration agreement, but a party attempts to initiate court proceedings, the residing court does not have jurisdiction over the matter, and must drop the case. Moreover, an arbitration agreement does not have to stipulate specific dispute matters and/or the arbitration organization authorized to resolve disputes without supplemental agreement.  Even if there is a valid arbitration agreement, Vietnamese Arbitration Law stipulates that in order for a dispute to go to arbitration, it must also fit into one of three categories: (1) disputes arising from “commercial activities”; (2) disputes where at least one party is engaged in commercial activities; (3) other disputes where the law stipulates that arbitration is a permissible means of resolution.  In category (1), the term “commercial activity” is defined in Commercial Law No. 36-2005-QH11 (31 December 2005) as “activity for profit-making purposes comprising the purchase and sale of goods, provision of services, investment, commercial enhancement, and other activities for profit-making purposes.”  The types of disputes that often fall into the second category are noncommercial disputes, such as civil disputes, where at least one party to the dispute is engaged in commercial activities. However, this category does not apply in disputes between a good/service provider and a consumer. In this case, the law allows the party to choose between litigation and arbitration. Even the agreement includes a standard arbitration clause in the supply of goods or services contract, the dispute may not be arbitrated without the consumer’s consent. The final category of disputes permissible for arbitration gives legislators discretion to expand or maintain the types of disputes resolved through arbitration.  An example of a category (3) dispute is a dispute arising from investment activities governed by the Law on Investment.

Arbitration has become an extremely popular method of dispute resolution, as many businesses prefer it over the high costs of litigation.

ANT Lawyers is a Vietnam law firm with international standards, recognized by IFLR1000 on Financial and Corporate practice.  We are an exclusive Vietnam member of Prae Legal, the global law firm network covering more than 150 jurisdictions.  The firm provides a range of legal services as following to multinational and domestic clients.

Commercial

Dispute Resolution

Debt Recovery

Employment

Foreign Investment

Intellectual Property

International Trade and Taxes

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HOW FOREIGN INVESTORS COULD HANDLE INTELLECTUAL PROPERTY DISPUTE IN VIETNAM

Foreign investor could handle intellectual property disputes in Vietnam through negotiation and mediation, arbitration or litigation depending on various factors.

Intellectual property rights is the rights of organizations, individuals to the intellectual property, includingcopyrights and related rights, industrial property rights, including trademark, patent, and industrial design and rights to the plant varieties. Under Vietnam intellectual property law, owners are granted certain exclusive right to the intangible assets. Intellectual property infringement occurs whenever the rights of any type of intellectual property are violated. The intellectual property disputes arise directly from all types of intellectual property as mentioned or commercial transactions and extraction process regarding to types of intellectual property such as license agreement, intellectual property transferring agreement.  Disputes could be settled by different methods, depending on the subjective wills of parties. The parties have right to choose any methods that they deem ideal to protect their interests.

Nowadays, international practice allows parties to choose one of two ways to settle their disputes, including dispute settlement mechanism without litigation (negotiation and mediation) and dispute settlement mechanism with litigation (civil litigation and arbitration). Typically, when disputes occur, parties often choose simplest methods before using other ones. The simplest methods are negotiation and mediation.

Negotiation is a procedure whereby parties work together and reach the solution by expressing their own point of views to the dispute. This method is used for small, non-complex disputes so that parties could be easy to reach a consensus about dispute settlement. Though this method is simple, it is hard for parties to shake their hands together and come to consensus. It is simply because each party always need advantages come to them. Besides, for example, if parties reach the consensus in settling dispute, there is no mechanism to ensure enforcement of dispute solution.

Mediation, different from negotiation, the participation of third party is requested by parties. However, the same thing between negotiation and mediation is that parties are sole those holding right to decide what solutions are applied to settle dispute. Despite the third party only act as intermediary, the mission of third party is really important. The third party helps to connect dispute parties and avoid stronger conflict between them. With experience and skills, they make opportunity for parties exchange information, help them express their standpoints, promote flexible solutions and suggest solution suitable for both of them. Of course, a methodswhich the third party proposes is solely recognized as a reference. In mediation, the information security is highly ensured. Parties are not forced to reveal any information that they want to keep as a secret. Besides, mediation helps parties minimize fees due to simple procedure. Moreover, mediation allows opportunity for parties to work together and reach settlement and typically, parties still keep their business relationship. Last but not least, parties can mediate in any period of dispute settling process. Mediation can be chosen as the first step to come to dispute settling process after each side’s endeavor.

After no result of both side’s endeavor, parties can choose one of the dispute settlement mechanism with litigation to settle dispute. Generally, the proceeding of civil litigation is more complex than the arbitration proceeding. In case one side needs a decision from court so as to end infringement, civil litigation is top priority. In the remaining case, arbitration is a choice with advantages. Arbitration is solely conducted when parties reach consensus that arbitration is a form of dispute resolution. Arbitration agreement must be a term of the core contract or an independent agreement.

Firstly, cost for arbitration is typically cheaper than traditional litigation. Attorney’s fees and expense are minimized in arbitration because arbitration is generally concluded in far less time than cases at court. Secondly, length of dispute settling time in arbitration is shorter than litigation in court because of simple procedure. Court cases generally require more counsel time and, thus, more expenses for preparation and trial than is needed in arbitration. Thirdly, settling dispute by arbitration is effective because of its flexibility. In arbitration, parties have right to choose form of arbitration (Ad hoc or permanent). Moreover, parties can schedule hearings and deadlines to meet their objectives and convenience. This flexibility allows parties save money, time and partially promote dispute settling process to be faster. Fourthly, arbitration is a secret proceeding. The decision is public, but the trial is close. This feature of arbitration is a big advantage for dispute involving trade secret or patent. Lastly, arbitration council’s decision is final. It means that contrary to decision of court, most of arbitration council’s decisions cannot be appealed. Chance for canceling arbitration’s decisions is not much, primarily because of basic mistakes about procedures.

Dispute settling method in arbitration is suitable for most of intellectual property disputes because this method meets the featured requirements of intellectual property dispute (multinational, information security, complexity). Mediation and arbitration can combine together in settling dispute. Firstly, dispute is settled by mediation. Then, in case if parties do not reach settlement in mediation, dispute will be settled by arbitration council. The advantage of this combination is that it promotes parties propose goodwill engagement in mediation and after that, will create more advantages for dispute resolution in arbitration.

To summarize, when facing a dispute relating to intellectual property right, foreign investor can handle out dispute through judging exactly about scale of dispute, financial capability, dispute settling time, level of information security because intellectual property is worthy assets that can impact development as well as existence of enterprises.

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TYPES OF CRIMINAL RECORD

As regulated in Clause 4, Article 2 of the Law on Criminal Record, criminal record is a document issued by the Department of Justice or the National Centre for Criminal Record, which have the value to demonstrate that a person is with or without a criminal conviction; is prohibited or not prohibited from holding position, managing or establishing business or not.

As stipulated in Article 41 of the Law on Criminal Record, there are 2 types of criminal record card:

– Criminal record form 01 is issued upon request by Vietnam citizen or foreigners residing in Vietnam and State agencies, political organizations, political – social organizations to serve human resources management activities, business registration activities, establishment and management of enterprises or cooperatives.

– Criminal record form 02 is issued for the agency conducting the proceedings and at the request of individuals who want to know the contents of their criminal record.

Lawyers at ANT Lawyers, a law firm in Vietnam will be available to assist client to navigate through procedures to apply and obtain criminal or police record in Vietnam.

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HOW TO IMPORT AND TRADE MEDICAL DEVICE

Import of medical device is a complicated process under Vietnam laws as it applies and impacts on human bodies. Ministry of Health is the Vietnam State Authority governing the import permit of medical device that requires import permit. Lawyers of law firm in Vietnam with experience in medical device should be consulted for the import licensing and sub-licensing process to ensure smooth experience.

1. Introduction about Medical Device

According to Circular No.30/2015/TT-BYT dated Oct 12th 2015 on importing of medical equipment, the term “medical device” is the types of equipment, tool, material and in-vitro diagnosis chemical and software used separately or combined with each other as indicated by the owner to serve people for one or a lot of purposes as follows:
a) Diagnosis, prevention, monitoring, treatment and mitigation of disease or injury compensation;
b) Checking, replacement, modification or surgery support and physiological process;
c) Life support or sustainment;
d) Conception control;
dd) Sterilization of medical equipment (not including chemicals and insecticides and disinfectants for domestic and medical use);
e) Use for medical equipment;
g) Special transport for medical activities.

2. How to import and trade Medical Device in Vietnam

In order to import the Medical Device, the importer has to strictly comply with Vietnam laws, especially setting up the trading company with the function to import and trade Medical Device.

Except those medical devices not yet permitted for use in Vietnam, trading medical device is considered as conditional business that the company must satisfy the following conditions:
a) Medical device must fully comply with the provisions of law;
b) Business entities must be traders defined in the Vietnam Commercial Law;
c) Business establishments must satisfy the requirements on techniques, equipment, facilities, business process and other standards prescribed by law; locations of business establishments must be in line with the planning on development of the network of establishments doing business with goods and/or services subject to conditional business;
d) Managerial and technical staff and employees personally engaged in the sale and purchase of goods, and employees personally engaged in the provision of services must satisfy the requirements on professional qualifications and experience and be physically fit according to the provisions of law;
e) Business traders must have certificates of satisfaction of business conditions in cases where such certificates are required by law to be granted by competent agencies.

3. Permit to import Medical Device

Further, for certain medical device belonging to the list which Vietnam Ministry of Health issues, the importer has to obtain the medical device import permit before importation.

Dossier for new issuance of Medical Device import permit includes:
a) A written request of issuance the permit as prescribed by law.
b) Valid certificate of free sale of types of imported medical devices at the time of submission of dossier.
c) The valid ISO 13485 or ISO 9001 quality systems certification (hereinafter referred to as ISO certification) of manufacturer at the time of dossier submission.
d) The valid Letter of authorization from medical equipment owner to organizations or individuals importing the medical equipment.
e) The technical material describing the types of medical equipment in Vietnamese language.
f) Catalogue describing the functions and technical parameters of types of imported medical equipment.
g) The clinical assessment material and manual of owner or manufacturer for the medical equipment specified in section 49 of Annex I issued with this Circular.
h) Report on result of import of medical equipment

The dossier will be addressed to the Ministry of Health (Department of Medical Equipment and Health Facilities) and they will review the completeness and validity of dossier within 05 working days. In case the dossier is complete and valid, a meeting of its consultation Council for issuance of medical equipment import permit will be held to review. The import will only be issued if there is no more requirement for modification or addition of import dossier from the Council. The validity of the import permit is until the validity of the letter of authorization and up to 01 year from the date of signature and issuance.

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CRIMINAL RECORD FOR FOREIGN CITIZENS RESIDING IN VIETNAM

When foreign citizens residing in Vietnam wish to apply and have their criminal record card issued, applicants have to prepare documents as follows:

The case that documents are submitted directly:

1. A written declaration request for granting the criminal record card according to form
2. Passport and Visa
3. Permanent residence card, temporary residence card, temporary residence book or temporary residence certificate of ward, commune or township police.

The case that a person is authorized by the client to submit documents will have to submit additional documents as follows:

1. A written declaration request for granting the criminal record according to form
2. Passport and Visa
3. The original of authorization letter. The case that the person requesting for criminal record card issuance is parents, spouses, children of whom have been granted the criminal record card is not required to have the authorization letter but will be replaced with papers to prove relationship (birth certificate, certificate of marriage)
4. Identity card (or passport) of authorized person.

Time limit for settling: 10 working days

There will be criminal record form 1 or criminal record form 2 to be requested.

Lawyers at ANT Lawyers, a law firm in Vietnam will be available to assist client to apply and obtain the criminal record in Vietnam.

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