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.

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Vietnamese firm wins anti-dumping steel lawsuit in Australia

The year-long investigation ended in Vietnam’s favor after finding no evidence of foul play.

A year-long Australian investigation into steel rods imported from Vietnam has concluded that there had been no breach of anti-dumping policies, the Vietnam Steel Association (VSA) said on Wednesday.

The Australian Anti-Dumping Commission (ADC) released the results of the investigation on Monday, concluding a lawsuit filed against Vietnam, Indonesia and South Korea by an Australian firm.

Read more: Australia Initiated the Anti-dumping Investigation Against Rod in Coil Originating from Vietnam

According to the ADC’s report, the dumping rate of steel rods in coil exported to Australia by Hoa Phat Group, the Vietnamese defendant, was only 1.3 percent, lower than the maximum legal threshold of 2 percent. Thus, the ruling was in Vietnam’s favor and the ADC had decided to end the investigation, TuoiTre reported.

The investigation also found there had been no interference from the Vietnamese government in the production of steel rods, and therefore they held no unfair advantage.

The ADC’s anti-dumping case and subsequent inspection was launched last June following a complaint lodged by OneSteel Manufacturing Pty Ltd, a steel core manufacturer in Australia. The firm said that goods were being exported to Australia at prices less than their normal value, and that dumping had damaged the Australian industry through loss of sales, market share and profits.

Steel products from Indonesia, Taiwan and Turkey have also been subject to anti-dumping investigations in Australia, and both Indonesia and Turkey were slapped with anti-dumping taxes in 2015 for a year, while the same products from China were hit with a tariff in April 2016.

In 2017, Hoa Phat Group exported 36,000 tons of steel rods and beams to Australia.

Source: vnexpress

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Measures to Prevent and Ensure Administrative Sanctions of Software Piracy

Vietnam is among countries with the highest rate of software piracy in the world, although the rate has reduced from 92% in 2004, to 81% in 2011, 78% in 2015 according to the report of BSA, The Software Alliance that promote legal software use and advocates for public policies that foster technology innovation and drive growth in the digital economy.

Computer software is protected as literary works, one of types of works eligible for copyright protection in accordance with Article 14 of Vietnam law on intellectual property 2005, amended and supplemented in 2009. Unlicensed software is unauthorized use or distribution of copyrighted software. Copyright infringements include publishing, distributing, copying, using, leasing out, duplicating, importing, exporting a work without permission from the author or copyright holder according to Article 28 of Vietnam law on intellectual property 2005, amended and supplemented in 2009.

The government of Vietnam has been striving to coordinate between ministries to increase awareness and encourage the software license compliance. Further, Ministry of Culture, Sports and Tourism has coordinated with Ministry of Public Security to increase frequency of inspecting the software license compliance in Vietnam as part of intellectual property right enforcement effort.

According to the provisions of Article 215 of the 2005 Intellectual Property Law, there are measures under the law of Vietnam to prevent and secure administrative sanctions.

In the following cases, organizations and individuals may request Vietnam competent agencies to apply preventive measures and ensure administrative sanction as provided for in Clause 2, Article 215 of the 2005 Intellectual Property Law:

-An act of infringement of intellectual property rights is likely to cause serious loss and damage to consumers or society;

-Material evidence of the infringement is likely to be dispersed or there are indications that the offender will evade responsibility;

In order to secure enforcement of a decision imposing an administrative penalty, preventive measures and/or measures to secure enforcement of administrative penalties which may be applied in accordance with administrative procedures to acts of infringement of intellectual property rights shall comprise:

-Temporary detention of persons;

-Temporary custody of infringing goods, material evidence and facilities;

-Body searches;

-Searches of means of transport and objects; searches of places where infringing goods, material evidence and facilities are hidden;

-Other administrative preventive measures in accordance with the law on dealing with administrative breaches.

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Determination of Competence between Court and Arbitration

Dispute resolution is always a matter of concern in Vietnam when it comes to the regulations and the effective enforcement of government authority.

The Council of Judges of the Supreme People’s Court issued Resolution 01/2014/NQ-HDTP in order to provide guidelines for the Law on Commercial Arbitration in Vietnam on dispute resolution process.

Accordingly, the courts in Vietnam are permitted to deal with disputes which are agreed to be settled by arbitrators in the following cases:

1) There is a Decision of the court on cancelling Arbitration’s Judgement, Council of Arbitration’s Decision on recognition agreement of parties.

2) The parties have agreed to settle their disputes at a specific arbitration center but it has stopped operating;

3) The arbitrators selected by the parties can not participate in solving disputes due to force majeure events;

4) The appointed arbitrator refuses to settle the dispute without an agreement on a replacement;

5) The proceedings rules selected by the parties are different from different from those of the selected arbitration center, and this center does not adopt rules of the other centers.

6) Consumers object to the arbitrator selection according to Articles 17 of the Law on Commercial Arbitration

In the first four cases, the parties must not reach an alternative agreement on replacement.

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U.S. firms seek to invest in Danang real estate

HCMC – More than 40 enterprises from the U.S. sought investment opportunities in the real estate sector in Danang City at an investment forum held in the city on April 2. 

The Danang – U.S. Investment Forum was jointly held by the Danang Investment Promotion Agency (IPA Danang) and the Vietnamese National Association of Real Estate Professionals (VNARP) in the U.S., with an aim to help enterprises sound out investment opportunities and forge partnerships. In addition to 40 U.S. companies, the forum was attended by 25 real estate firms in Danang.

At the forum, a representative of U.S.-based Keller Williams Silicon City, a member of VNARP, asked the Danang City government to allow the company to study and invest in a 500-hectare complex providing education, leisure and healthcare services in Hoa Vang District.

Keller William Silicon City has earlier inked a cooperative agreement with Danang Construction Material and House - Building JSC to develop some components of the project.

Hilda Ramirez, CEO of Keller William Silicon City, said she was impressed by Danang’s rapid growth, especially in the resort sector. She and some overseas Vietnamese businessmen have plans to return to Vietnam in the coming time for investment in Danang.

See more: Benefits of Investors in Setting up a Business in Da Nang

Some U.S. companies are interested in projects that the Danang government is calling for investment in and incentives offered by the Danang Hi-Tech Park (DHTP). Jonathan George Hanhan, senior vice president of CSR Commercial Real Estate Service, said his company is interested in the Silicon Valley project in DHTP.

Huynh Duc Tho, chairman of Danang, said the city is promoting investment in tourism and information technology, which have much room for real estate investment.

IPA Danang and the Danang Department of Construction will do their best to support U.S. firms, Tho said, adding that DHTP is offering the best tax incentives in Vietnam.

In addition to learning more about the investment environment in Danang, overseas Vietnamese businessmen also called on Vietnamese businesses to penetrate the U.S. real estate market.

Evan Phong Huynh, executive director of D1 Gateway for Silicon Valley, called on Vietnamese enterprises to invest in the company’s project to develop a US$100 million complex gathering Asian businesses in the Silicon Valley.

Lieu Nguyen, member of the Northern Virginia Association of Realtors, said Virginia and Washington D.C. are the promising land for Vietnamese real estate developers.

According to Michael Q. Le, general director of Robert Mullins International, the U.S. investment policies have become more favorable for Vietnamese investors. As president of the Thua Thien-Hue Union of Friendship Organizations in the U.S., he pledged to support Vietnamese enterprises to do business in the U.S.

The Danang – U.S. Investment Forum is part of the Vietnam trip that will last until April 6 of a U.S. business delegation. After the forum, the U.S. businesses would visit Quang Nam Province.

At present, there are 52 projects invested by U.S. firms in Danang, with investment capital totaling more than US$518 million, accounting for over 16% of the city’s total foreign direct investment (FDI). U.S. firms mainly invest in real estate, finance, trade, tourism, education and hi-tech sectors.

Source: The SaigonTimes

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How to Prepare Application for Anti-dumping Review

The review of anti-dumping measures on imported goods will be conducted by Vietnam Competition Authority (VCA) 12 month from the decision by Ministry of Trade and Commerce is issued

Application dossiers requesting for review of imposition of anti-dumping measures shall including (i) Application and (ii) Other documents and information deemed necessary by the requesting party, in Public and Limited version to be submitted to VCA.

The followings information must be provided by the requesting party at the submission of application for review of the anti-dumping duty imposition:

The status of dumping of imports

This section focuses on the change in the dumping status of imports into Vietnam during the period from the imposition of anti-dumping duty to the time the applicant submits the application.

The information to be provided includes, but is not limited to, expanding / narrowing the scope of the goods subject to the imposition of anti-dumping measures; Type / type of goods, producer / exporter selected to calculate the change in dumping margin, change in margin of dumping, normal price, export price for one or a group of foreign producers/ exporter (Note: The method of calculating the data must be consistent with the methodology which the VCA has guided in the dossier requesting the application of anti-dumping measures.)

Material damages or threaten to material damages

This section identifies evidence of substantial damages / threat of material damages to the domestic industry caused by imported goods dumped into Vietnam for investigation by the VCA, decide according to the actual situation.

Requesting party should provide the following information:

– The situation of importing goods

Information and data on the situation of import of goods subject to anti-dumping measures (amount and value) from the date of application of the anti-dumping measure before the submission of the dossier according to the set form and two (02) years earlier.

– Market share of similar goods domestically produced and imported goods

Comparative information on market share of domestically produced and imported goods shall be subject to dumping from the time of imposition of tax prior to the filing of the application in the form and the previous two (02) years.

– Impact of imports on domestic prices

Information on the impact of imported goods on the prices of domestically produced goods from the time of imposition of tax prior to the submission of dossiers according to the set form and two (02) years earlier.

– The situation of production and business activities of the domestic manufacturing industry

Information on production and business activities of the manufacturing industry from the date of application of the tax prior to the date of application and two (2) years before.

– Invest in upgrading machines and infrastructure to meet domestic demand

Information on fundamental changes in machinery and factory infrastructure is related to changes in capacity and capacity to meet the needs of the Vietnamese market from the time of application of the tax before submission and two (02) years earlier of the domestic industry. Data should be shown in the following table:

Current situation of employers in the domestic industry

Number of employees (or estimated number) engaged in the production, management and distribution of domestically produced goods subject of the investigation.

Inventory fluctuations

The amount and value of inventory requested for the application of the measure anti- dumping domestic production.

Scope of goods subject to anti-dumping measures

– Purpose, reason for requesting exclusion of products imported by the company from the scope of application of anti-dumping measures.

– Information on products the company proposes to exclude from the scope of application of anti-dumping measures: HS code, technical specifications, technology, use purpose, production process, …

– The list of domestic enterprises producing the same products as the imported products of the company.

– List of other importing enterprises jointly importing the company’s proposed goods for exclusion.

– Documents indicating the difference between the company’s products proposed exclusion and similar products domestically produced. If there are quality comparisons, please indicate the source of these quality criteria (e.g.Vietnamese standards sets, internationally recognized standards …).

– Information on alternative sources of imports, the difference between those sources.

– Other information, documents and evidence that the company deems appropriate to explain the exclusion of the product is appropriate.

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Process of Anti-dumping Review in Vietnam

After 12 month from the day on which the decision on imposition of anti-dumping measures is issued, the Vietnam Minister of Industry and Trade may decide to review anti-dumping measures at the request of one or multiple interested parties and evidence provided by them.

The time limit for the review is 06 months from the day on which the decision on review is issued, with a possible extension up to 3 months if necessary.

Within 60 days before the end of one year from the date of issuance of the decision on the imposition of official anti-dumping measures, the related parties may submit the application dossiers for review of anti-dumping measures.

1. Subject of the application:

The following related parties shall have right to submit the application for review of the anti-dumping measures imposition:

• Domestic producers;

• Foreign producers and exporters may submit dossiers for review of the imposition of official anti-dumping measures against themselves;

• Importers of goods subject to anti-dumping measures;

• Governments of foreign producers and exporters which may submit dossiers for review of the imposition of official anti-dumping measures of such foreign producers and exporters.

2. Contents of the application

Contents of the review at the request of related parties

• The dumping margin, the level of subsidy of one, some or all of the foreign producers and exporters;

• Commitments to eliminate dumping and subsidies of one, some or all of the foreign producers and exporters who commit;

• Damages of the domestic industry and the causal relationship between the dumping on goods/ good subsidies of relevant foreign producers and exporters and the damage to domestic industry;

• Scope of imposition of anti-dumping measure and countervailing measure.

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