AARCHN-#8482638-v2-VLU November 2011 - Vietnam … · © 2011 Allens Arthur Robinson - Vietnam Laws November 2011 November 2011 edition contents In brief: In this edition we report

© 2011 Allens Arthur Robinson - Vietnam Laws November 2011

November 2011 edition

contents In brief: In this edition we report on the new guidelines on contents of BOT contracts, as well as the strengthened controls for foreign employees and the new regulations in relation to representative offices of foreign entities. We also cover a recent decree that provides additional protection to consumers of goods and services as well as examine the effect of a draft decree regarding re-registration and conversion of foreign invested enterprises. In general news we introduce you to a new lawyer in our HCMC office, Mr Motohisa Nakagawa.

Will the negotiation process for power plant BOT contracts be accelerated?

Foreign employees face strengthened controls

New guidance for representative offices of foreign organisations

Protecting the Consumer

Is it necessary?

Get to know us

New legal instruments

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The material contained in Vietnam Legal

Update is intended to inform readers of

recent legal developments in Vietnam. It

is not intended and should not be relied

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Will the negotiation process for power plant BOT

contracts be accelerated?Official Letter 1604-TTg-KTN of the Prime Minister dated 12 September 2011 on the basic contents of Build-Operate-Transfer (BOT) contracts and of Government Guarantees applicable to thermal power plant projects in the BOT investment form (Official Letter 1604).

The Government has recently signed a BOT Contract for the Hai Duong thermalpower plant after extensive negotiation. A number of thermal power plant BOT projects are also currently being negotiated. In this context, the Prime Minister has issued Official Letter 1604 to help accelerate the negotiation process by providing guidelines for certain provisions in a BOT contract. Noteworthy points include the following:

1. Applicable law: Parties may choose foreign law for application and interpretation of BOT contracts;

2. Language: BOT contracts shall be in both Vietnamese and English, with the English version prevailing in the case of differences between the two versions;

3. Tax incentives: A thermal power plant project shall be entitled to exemptions with respect to tax imposed on interest on loan monies and import duty applicable to raw materials, materials and synchronous equipment not yet able to be manufactured domestically (or already able to be manufactured domestically but not satisfying requirements on quality). In addition, thermal power plant projects shall be exempt from corporate income tax for 4 years from the first profitable year, with a tax rate of 5% applying for the next 9 years and a tax rate of 10% for the remaining years of the project.

4. Land: Investors shall be exempt from paying land rent and may mortgage assets attached to the land. This clause may upset some investors who want to mortgage not only the assets attached to the land but also the land use rights.

5. Tariff in power purchase agreements shall be calculated in USD and payment shall be made in VND.

6. The Government shall repurchase the plant in case of force majeure events resulting in the Vietnamese party being unable to continue to purchase power.


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The guidelines in Official Letter 1604 are intended to simplify negotiations for power plant BOT contracts, and cover topics such as applicable law, tax incentives and government guarantees

7. The Government shall provide guarantees for the following:

(a) Obligations of the Ministry of Industry and Trade in BOT contracts;

(b) Tariff payment obligations of Vietnam Electricity in power purchase agreements;

(c) Payment obligations of Vinacom (for projects using domestic coal, with the exception of coal transportation) and PetroVietnam (for gas-fuelled projects) indirectly via the BOT contracts;

(d) Obligations of Vietnamese State enterprises regarding investment in construction and operation of infrastructure works jointly used by power centres.

(e) Conversion into USD of 30% of project turnover in VND after subtracting the expenses in VND.

The issuance of Official Letter 1604 will definitely save parties from negotiating a number of provisions, however certain points may also be a cause for concern to investors. One significant point of concern relates to the conversion of turnover from USD into VND. The Government proposes to guarantee 30% of project turnover, however investors generally expect to receive a guarantee from the Government regarding conversion of 100% of project turnover as granted in previous power plant projects. This is usually a requirement from lenders to ensure that the project will have enough foreign currency to repay loans. As long as this point has not been resolved, there is no guarantee that the negotiation process will be accelerated by this Official Letter.


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Foreign employees face strengthened controlsCircular 31/2011/TT-BLDTBXH of the Ministry of Labour, War Invalids and Social Affairs implementing some provisions of Decree 34/2008/ND-CP dated 25 March 2008 and Decree 46/2011/ND-CP dated 17 June 2011 on recruitment and management of foreign employees working in Vietnam dated 3 November 2011 (Decree 34)

As reported in our October edition, the Ministry of Labour, War Invalids and Social Affairs (MOLISA) drafted a circular to replace Circular 08 implementing Decree 34. On 3 November 2011, Circular 31 was officially issued by the MOLISA. However, as mentioned earlier, it did not clarify to the extent expected the unclear points raised by Decree 34.

Unclear points still remain

§ Official Circular 31 is not much different from the final draft version released by the MOLISA that we discussed in our October edition. The circular requires that an employer and foreign employee must sign a labour contract after obtaining the work permit and that the contract must be entered into before the employee starts working. The timeline of this complicated process is presented below.

FOREIGN EMPLOYEE

AUTHORITY

Apply for Work Permit

DOLISA to issue Work Permit

20 days

10 days

Sign Contract Submit copy of contract to

DOLISA

Proposed working date

5 days

§ It remains unclear as to whether the exemption from obtaining a work permit in Circular 31 is granted to the chief representative of a foreign trading entity's representative office or only to those of non-governmental organisations. In addition, it is still unclear whether the exemption from a work permit applicable to employees transferring internally can apply to those internally transferred from an offshore parent company to its Vietnamese subsidiary if the companies' conduct and services fall both within and outside the WTO Commitments.

§ Upon applying for an extension of a work permit for its foreign employees,


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under Circular 31, an employer has to submit a copy of a contract for 'professional or trade training' signed by the employer and the proposed replacement Vietnamese workers. In addition, Circular 31 provides that an employer can provide a document 'proving that [the employer] has already implemented a plan or program training Vietnamese in replacement for the work the foreigner/s is currently undertaking as referred to in article 132.1 of the Labour Code'.1 These formal requirements definitely raise heightened barriers for foreign contractors when applying for extensions of work permits.

Reporting and Notice Regime

A remarkable feature of Circular 31 is the different kinds of notice, reporting, informing and submission procedures required for foreign employees, employers, contractors and other organisations upon recruitment, the signing of a contract with a foreign employee, before as well as during the period of employment. To help the readers to visualise this complicated picture, we have summarised these requirements in the following table.

Type of employment work

Person in charge Timeline Action to take

Initial Applications

Employer at least 30 days before recruitment

to publish the need for recruitment of Vietnamese labourers in 1 central newspaper and 1 local newspaper

Employment pursuant to labour contract

Employee within 5 days from the date of contract signing

to submit a copy of the contract to the work permit issuing authority

Employment pursuant to tender packages or projects awarded

Foreign contractor within 30 calendar days prior to the date the foreign contractor

to provide a report to the chairman of the provincial people's committee

1 Allens Arthur Robinson footnote: Article 132 of the Labour Code, in the Section dealing with foreigner employees working in Vietnam, provides that where a Vietnamese person is unable to satisfy work requirements of a highly technical nature or management skills, an enterprise may employ a percentage of foreigners for a certain period, providing that a training plan or program is established to enable Vietnamese to do such work within a short period of time and to replace the foreigners as stipulated by the Government.


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performed the tender package or awarded contract

(PC) on its proposal for employment of Vietnamese employees

to foreign contractors

Chairman of the relevant PC

within a maximum 60 calendar days from the date the chairman of the provincial PC receives the proposal for recruitment of 500 or more Vietnamese workers and 30 calendar days in the case of a proposal to recruit less than 500 Vietnamese workers

to decide on permitting the foreign contractor to recruit foreign employees if it cannot provide Vietnamese workers to the project

Employment in relation to offering services

Foreign Worker at least 7 business days prior to the date a foreigner enters [Vietnam] to offer services

to provide a notice of entering [Vietnam] to offer services to the relevant department of labour

Foreign students, scholars coming to Vietnam for training

Vietnamese enterprise, body or organisation at which the student or scholar will train

at least seven working days prior to the student coming to undertake the practical training

to provide a list containing his or her main information to relevant department of labour

Ongoing reporting obligations

All Investor before the 5th of the first month of each quarter

to report to the Department of Labour, War Invalids and Social Affairs (DOLISA) on the recruitment of foreign


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employees

All DOLISA before 15th of January annually

to report to MOLISA on the need for recruitment of foreign employees by employers, Vietnamese parties and foreign NGOs in the locality

All Employer, Vietnamese party and foreign NGOs

before 5th of July annually

report to DOLISA on the employment and use of foreign employees

Circular 31 should take effect from 18 December 2011 and replace Circular 08 which implements Decree 34 as amended by Decree 46.

New guidance for representative offices of foreign

organisations Decree 100/2011/ND-CP of the Government dated 28 October 2011 on establishment and operation of representative offices of foreign commercial enhancement entities (Decree 100).

As it has done in other sectors (such as trading, banking, education, publishing and publication distribution), the Government has issued a new decree on representative offices of foreign organisations in commercial enhancement business. Although the contents of Decree 100 are similar to those of Decree 72/2006/ND-CP (Decree 72) dated 25 July 2006 on representative offices and branches of foreign traders in Vietnam, it also deals with additional specific rules applicable to representative offices of foreign commercial enhancement organisations. Decree 100 will take effect from 15 December 2011.

Foreign commercial enhancement organisations

Under Decree 72, a foreign trader wanting to establish a representative office in Vietnam must be a business entity. However, under Decree 100, a foreign organisation such as a governmental organisation, a non-governmental organisation, an association or a business entity may establish a representative office in Vietnam to engage in commercial enhancement activities in Vietnam. Such foreign organisations must be licensed to carry out commercial enhancement activities in their foreign country. Under Decree 100, 'commercial enhancement activities' include:

• activities for the purpose of facilitating the commercial activities from abroad


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into Vietnam or vice versa;

• provision of support to foreign enterprises to penetrate and operate in the Vietnamese market;

• research and provision of economic, commercial and market information to foreign organisations and enterprises; and

• other activities for the purpose of establishing a trading connection betweenforeign enterprises and Vietnamese enterprises.

Establishment and licensing process

Under Decree 100, any foreign commercial enhancement organisation conducting any commercial enhancement activities in Vietnam must establish a representative office in Vietnam. Each foreign organisation may establish only one representative office in the area of a province. This means that if a foreign organisation wants to establish more than one representative office in Vietnam, those representative offices must be located in different provinces.

The conditions for a foreign commercial enhancement organisation to establish a representative office in Vietnam are more simple than those applicable to foreign traders under Decree 72. Unlike Decree 72, Decree 100 does not impose the condition that the foreign organisation must have operated for at least one year in the foreign country before it may establish a representative office in Vietnam.

Decree 100 provides further guidance on the establishment, licensing requirements and permitted activities of representative offices of foreign organisations who engage in commercial enhancement activities

To establish a representative office, a foreign commercial enhancement organisation must submit an application dossier to the Ministry of Industry and Trade (MOIT) (not the provincial Department of Industry and Trade as required of foreign traders under Decree 72). The application documents for establishment of a representative office of a commercial enhancement business are quite different from those required under Decree 72 and applicable to other foreign traders. Apart from the application, the application dossier must include (i) a document issued by the competent authority in the foreign country (where the foreign commercial enhancement organisation is located) permitting the foreign organisation to establish a representative office in Vietnam, (ii) a copy of the incorporation certificate/establishment license, (iii) a copy of the charter of the foreign commercial


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enhancement organisation, (iv) charter or operation rules of the representative office to be established in Vietnam, and (v) a report on the status of operation of the foreign organisation and proposed activities of the representative office in Vietnam.

Decree 100 requires the MOIT to notify the applicant of any further requirement regarding submission of additional documents or amendment to the application documents within 3 working days from receipt of the application dossier. The statutory time for the MOIT to issue the establishment license is 20 days from the date of receipt of the valid application dossier.

Renewal and amendment of the establishment license

The establishment license has a term of five years and is renewable for an additional term not exceeding five years at the expiration of each licensing term. To have the establishment license renewed, the foreign organisation must send the request for renewal to the MOIT at least 30 days prior to the expiry of the term. The application documents for renewal must include audited financial statements evidencing the existence and operation of the foreign organisation in the latest financial year and a report on activities of the representative office up to the time of applying for renewal. The audited financial statements of the foreign organisationare required to be legalized and their Vietnamese translations must be notarized.

The foreign organisation must submit an application for any changes relating to the registered office of the representative office or of the foreign organisation, the chief representative of the representative office, or the name of the representative office.

The application for renewal or amendment to the establishment license must be signed by an authorized signatory of the foreign organisation as the applicant for renewal of the establishment license or registration of any change of the establishment license.

Contents of operation

Like representative offices of foreign traders in the commerce industry, representative offices of foreign commercial enhancement organisations may not carry out any profit-making activities. They act as liaison offices of the foreign commercial enhancement organisations, and carry out the commercial enhancement activities mentioned above. Further, they may cooperate with organisations licensed to conduct commercial enhancement activities to carry out any activities relating to commercial enhancement.

As is the case for representative offices in other industries, a representative office of a foreign commercial enhancement organisation may not represent any foreign organisation other than its parent company.


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Protecting the ConsumerDecree 99/2011/ND-CP of the Government implementing the Consumer Rights Protection Law (Decree 99)

In the January 2011 edition of our VLU we provided readers with a snapshot of the new Consumer Rights Protection Law which came into effect on 1 July 2011. On 27 October 2011, the Government issued Decree 99 to implement the Consumer Rights Protection Law. Decree 99 will come into effect on 15 December 2011.

This article will be of interest to businesses that use a standard form consumer contract, contract with a consumer by telephone or over the Internet or engage in door-to-door sales. The article will also give readers a run down on the consumer blacklist of offending businesses.

Standard Form Consumer Contracts

Banks, insurers, finance companies, motorcycle retailers and computer resellers all use standard form contracts in dealings with their customers at some point. Decree 99 contains requirements by which all standard form contracts must abide. For instance, the font size in a standard form contract must be at least 12 font. Additionally, the paper and ink colour used must be the same for each copy of a standard form contract. Thankfully, not all standard form consumer contracts are required to be registered with the authorities. Only contracts relating to essential goods and services as prescribed by the Prime Minister must be registered with the Ministry of Industry and Trade (if the contracts are used in more than one province or city) or the local department of industry and trade (if the contracts are used in that local province or city). The Prime Minister has not given a prescribed list of these essential goods and services but we imagine that it would include telephone, electricity, hospital and health care services.

Contract by Telephone or Internet

As an increasing number of businesses sell goods and services through unconventional means such as online or by using telemarketing rather than face to face methods, Decree 99 requires that businesses provide sufficient information to the consumer. The mandatory information that must be disclosed to the consumerin each sale contract is as follows:

• Name, contact telephone, address and head office of the business;

• Quality of the goods or services;

• Delivery costs (if any);

• Payment method, delivery method or provision of services;

• Effective date of transaction and transaction price;

• Fees applicable for making information inquiries about the contract if this fee has not been factored into the cost of the good or service;


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• Details of the product features, use and operating instructions.

A contract that does not provide consumers with the above details can be unilaterally terminated by the consumer within ten days from the date of the contract. If the contract is terminated, the business must refund the purchase price to the consumer within 30 days of the termination and late penalty interest may be applied based on the basic interest rate published by the State Bank of Vietnam.

For those who receive a sales pitch from a telemarketer, Decree 99 requires that the telemarketer disclose to the consumer the name and address of the telemarketer and purpose of the call at the start of the call.

Decree 99 attempts to provide consumers with greater protection when faced with standard form contracts or unconventional sales techniques

Door to Door Sales

Decree 99 insists that a door to door salesperson must first introduce to theconsumer his or her name, contact telephone number, address and head office of the business. If the consumer refuses to enter into a transaction, the salesperson must immediately leave the premises. The sale made by the salesperson must be documented by a written contract and the salesperson must also explain to the consumer the terms of this sales contract and all other information relating to the goods or services. Under Decree 99, there is a cooling off period of three days during which the consumer has the right to unilaterally terminate the contract. Additionally, the salesperson cannot require the customer to pay for the goods or services during the cooling off period.

Consumer Blacklist

The district people's committees are charged with receiving consumer complaints if there is a suspected breach of the Law on the Protection of Consumer Rights. If the complaint is proven, one of the measures that could be taken by the regulator is to include the offending business on a published blacklist of offenders. The local department of industry and trade must include the offending business in their published blacklist if the business has offended in two or more districts of the particular province or city. Additionally, the Ministry of Industry and Trade must include the offending business in their published blacklist if the business has offended in two or more provinces or cities.


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The blacklist of offending businesses ensures that consumers are made aware of the businesses that have a record of unscrupulous practices.

Is it necessary?The Government has made available the second draft of a Decree (Draft Decree) which may replace Decree 101/2006/ND-CP dated 21 September 2006 (Decree 101) which deals with re-registration and conversion of foreign invested enterprises (FIEs) pursuant to the Law on Enterprises (LOE) and Law on Investment (LOI).

Re-registration

As discussed in our VLU editions of March, June and August 2008, Article 170.2 of the LOE allowed FIEs established prior to the effective date of the LOE (ie 1 July 2006) to either (i) re-register under the LOE or (ii) not re-register, in which case the FIE was 'stuck with' its licensed business lines and project duration as set out in its investment licence. The deadline for re-registration was originally 1 July 2008 which was subsequently extended to 30 June 2011 under Article 3 of the law on amendment of a number of provisions of the Law on Basic Investment and Construction dated 19 June 2009 (issued one year after the original deadline had passed).

Although the Draft Decree does not establish a new deadline for re-registration, it retains the provisions of Decree 101 relating to application files for re-registration so it may be paving the way for a new deadline (although FIEs which did not re-register by 30 June 2011 should not assume that this is the case).

Conversion

Amongst other restrictions, the Draft Decree prohibits an enterprise which has not re-registered from 'restructuring' and from establishing a new investment project. As with Decree 101, the restriction on change in corporate form in the Draft Decree applies to foreign invested joint venture companies, 100% foreign owned companies and shareholding companies with foreign invested capital established (or converted) prior to 1 July 2006. It does not apply to enterprises with foreign invested capital established pursuant to industry specific laws (such as banks and insurance companies).

The most significant change in the Draft Decree relates to conversion of a non-shareholding company to a shareholding company (assuming that the FIE did re-register by the deadline). In addition to the requirement that at least one of the owners of the company be a 'founding shareholder', the following conditions must be satisfied:

(i) it must have been operational for at least 5 years and have charter capital of USD10 million or more;

(ii) it must have been profitable for at least the 3 years immediately prior to application for conversion and have no accumulated losses;


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(iii) the return on equity (not defined) in the 3 years immediately prior to application must be 5% or more; and

(iv) the foreign founding shareholder(s) must retain at least 30% of the charter capital of the company for at least 10 years after conversion.

The first part of condition (i) above is unnecessary as all enterprises governed by Decree 101 were established prior to 1 July 2006 and now satisfy the 5 year operation period. Condition (iv) has been criticised because the LOE only stipulates a 3 year lock up period for founding shareholders of a shareholding company – and even then, their shares can be transferred if the general meeting of shareholders approves such a transfer (although Article 11B of the Draft Decree also contemplates such approved transfers).

In its current form, the Draft Decree imposes additional restrictions on those FIEs which did not re-register by 30 June 2011. The implications these new regulations are problematic and require further discussion,

Although it is not clear from the Draft Decree, these proposed additional restrictions may be designed to preclude companies which are not financially viable converting to a shareholding company in preparation for listing. However, it is questionablewhether the Draft Decree actually provides any practical benefit in this respect at all since the exiting conditions on listing contained in relevant capital markets legislation should achieve the same result.

It is clear that the Draft Decree needs further consideration and debate. This is especially so given that the deadline for re-registration has now passed and the Draft Decree seeks to retrospectively impose restrictions in addition to those set out in Decree 101 which apply to FIEs which did not re-register by the 30 June 2011 deadline.

Further, it is discriminatory as the restrictions do not apply to locally invested companies (which were not required to re-register under the LOE).

The Draft Decree was first introduced in April 2011, and Ministries and relevant authorities finished their reviews and provided comments on the draft in August2011. In late August 2011, the second version of the Draft Decree was introduced to the public. The Ministry of Planning and Investment (MPI) did ask for comments and opinions from the public and the deadline for comments and opinions to be sent to MPI was 10 October 2011. These comments and opinions were expected to be


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posted on the VIBOnline - the website for draft legal instruments maintained by the Vietnam Chamber of Commerce and Industry. However, there do not appear to be any such comments or opinions on VIBOnline.

We hope that there will be more public debate on the Draft Decree before it is issued.

Get to know usMr. Motohisa Nakagawa has joined our Ho Chi Minh City office this month as a secondee from Nagashima Ohno & Tsunematsu, our Japanese co-operative alliance partner. Moto is a Japanese qualified lawyer, and specialises in corporate matters with a focus on mergers and acquisitions. While Moto has spent most of his time in Tokyo, he has lived in United States for a total of seven years (five years in Chicago as a child, one year in California where he obtained a LL.M. degree at Stanford Law School, and one year in New York where he worked with a US law firm).

Moto loves to travel. During his stay in US, he drove across the US from California to New York by car. He also loves to eat good food. His dream is to drive from Ho Chi Minh City to Lao Cai in the north of Vietnam by motorbike, stopping at good Vietnamese restaurants along the way. A quote from the source: 'At each meal, I can't wait to eat great Vietnamese food all over this city'.

Legal instruments recently uploaded on to the Vietnam

Laws online databaseVietnam Laws online database (available at www.vietnamlaws.com) is an online searchable database containing English translations of more than 3,500 Vietnamese laws. Legislation recently uploaded includes:

§ Decision 64 on State funded agencies and public servants giving, receiving and handing in gifts, 10 May 2007

§ Decision 23 on securities registration at Vietnam Securities Depository, 22 April 2010

§ Decision 76 on international seminars and conferences in Vietnam, 30 November 2010

§ Draft Decree to replace Decree 101 on re-registration of enterprises with foreign owned capital, 10 August 2011

§ Official Letter 8376 on the promotions and commissions paid to facilitate receipt of deposits, 26 October 2011

www.vietnamlaws.com


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§ Circular 34 on revoking licences and liquidating assets of credit institutions and foreign bank branches, and on revoking licences of representative offices of foreign banks and banking organizations, 28 October 2011

§ Circular 31 on recruitment and administration of foreigners working in Vietnam, 3 November 2011

§ Decree 101 on the implementation of Resolution 08 regarding tax reductions for Year 2011, 4 November 2011

§ Notice 268 on development of Vietnam's competitive power generation market, 4 November 2011

§ Letter 8844 on the State Bank's directions regarding credit activities in the final months of Year 2011, 14 November 2011

§ Decree 133 on technology transfer dated 31 December 2008 as amended by Decree 103, 15 November 2011

§ Official Letter 2129 on restructuring Vietnam Airlines, 15 November 2011

§ Letter 8848 on banks being required to report details of loans made to enterprises with foreign owned capital, 15 November 2011

§ Decree 26 on digital signatures and digital signature certification services dated 15 February 2007 as amended by Decree 106, 23 November 2011

§ Decision 2093 granting a 50% land rent reduction in years 2011 and 2012 for economic organizations currently operating in the manufacturing [or production] industries, 23 November 2011

§ Letter 8423 on recruiting foreign lecturers to work in universities in Vietnam, 25 November 2011

§ Letter 2205 on hiring foreign consultants to prepare provincial master plans, 29 November 2011

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AARCHN-#8482638-v2-VLU November 2011 - Vietnam … · © 2011 Allens Arthur Robinson - Vietnam Laws November 2011 November 2011 edition contents In brief: In this edition we report