Professional Documents
Culture Documents
contents
Stricter control over ecommerce activities
Foreign exchange
amendments: further
change or simply
clarification?
New law on VAT
expands list of
exemptions and
labour outsourcing
regulations
Case Commentary
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Our associated firm Allens is an independent partnership operating in alliance with Linklaters LLP.
2013 Allens Vietnam Laws
June 2013
Decree 52 also contains detailed requirements for each type of e-commerce activity.
Management of e-commerce activities
(a)
Having a website with a valid domain name and complying with regulations on
information management on the internet; and
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E-commerce websites established and operating before the effective date of Decree 52
must make notification or re-registration within 90 days from 1 July 2013 (ie. the date on
which Decree 52 becomes effective).
(b)
Reporting obligations
Before 15 January every year, traders and organisations providing e-commerce services
must make a report to the MOIT on the statistical data of operation status of the
previous year.
Decree 52 grants
authority to the
MOIT to monitor
the activity of ecommerce
websites and
receive reports of
violations, however
reporting
procedures have
not yet been
specified
(c)
Announcement of information
The management portal of e-commerce activities of the MOIT is to keep and publish a
list of e-commerce websites.
Through the management portal, the MOIT will also publish a list of e-commerce
websites which require consumers caution. These websites include:
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personal information. If the gathering of information is conducted through the ecommerce website, the policy on protection of personal information must be made
public in a conspicuous place on this website. The policy on protection of personal
information must contain the following information:
methods and tools for consumers to access and modify their personal data on
the e-commerce system of the information gathering unit.
June 2013
For foreign indirect investment in Vietnam, the Amendment seems to narrow down the
category of persons required to open a 'VND indirect investment account'. The
Amendment provides that non-resident foreign investors must open a 'VND indirect
investment account' to make their indirect investments in Vietnam. The Amendment
also regulates that the foreign currency investment capital of the foreign investors must
be converted into VND and transferred into this indirect investment account. All lawful
income of the foreign investor may be used for the purchase of foreign currency for
overseas remittance.
As the provision specifically refers to non-resident foreign investors, this suggests that
resident foreign investors engaging in indirect investment may not be required to follow
this requirement. However, we expect that the SBV will later provide guidelines on this
issue as part of its broader duty to guide the use of the VND and the VND accounts of
residents being foreign individuals (ie. those who are permitted to reside in Vietnam for
12 months or longer,) as set out in the Amendment.
June 2013
June 2013
New law on VAT expands list of exemptions and delivers tax cuts for
social housing
th
th
The 5 Session of the 13 National Assembly has passed a number of laws, among
them the Amended Law on value added tax (VAT). In this article, we look at a number
of important amendments in the latest draft of the law on VAT (the Draft Law). As the
law in the form it was passed has not yet become available to the public, the actual law
may vary slightly from the draft based on which we write this article, however these
should not be material. The law on VAT will take effect from 1 January 2014.
Purchasing
property should
become more
affordable for
low-income
earners following
a reduction in
the applicable
VAT rate for
social housing
June 2013
Sale of debts;
Licensing requirements
have legal capital of VND 2 billion (approx USD 100,000), which must be
deposited in a bank account for the life of the outsourcing enterprise and may
only be withdrawn in limited circumstances;
(ii)
have a lease in place for its office with a term of at least 2 years; and
(iii)
have a General Director who: (i) has been working in the labour outsourcing
sector for at least 3 years; and (ii) in the 3 years immediately preceding the
licence application, has not been the head of an outsourcing enterprise for
which its licence was withdrawn, or repeatedly forged documents for the
purposes of applying for a outsourcing licence.
In the case of foreign investors setting up joint ventures with Vietnamese enterprises to
provide labour outsourcing services, the following additional conditions must be
satisfied:
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(i)
the foreign investor must be a labour outsourcing enterprise in its home country
and must have capital and assets with a total value of VND 10 billion (approx
USD 500,000);
(ii)
(iii)
it must have a certification from a competent authority in its home country that
neither it nor its General Director (or equivalent) have breached the law of that
country.
Labour outsourcing licences are issued by the Ministry of Labour, War Invalids and
Social Affairs (MOLISA). The maximum initial duration of an outsourcing licence is 36
months, however a licence can be extended twice. Extensions can be for a period of up
to 24 months at a time. However, the extension duration cannot be longer than the
duration of the preceding term of the licence or extension.
Deposit
As noted above, the legal capital of the enterprise must be deposited, for the life of the
enterprise, at the bank where the outsourcing enterprise holds its transaction account.
The deposit will only be returned to the outsourcing enterprise in the following
circumstances:
MOLISA issues a notice that the licence to conduct outsourcing activity has not
been issued to the enterprise; or
Prior to return of the deposit, a labour outsourcing enterprise is permitted to withdraw all
or part of the deposit of legal capital, with approval from MOLISA, if it is unable to pay:
salaries to its outsourced employees that are more than 60 days overdue;
compensation to its outsourced employees that are more than 60 days overdue;
or
Within 30 days from the above withdrawals, the outsourcing enterprise is required to
top-up the shortfall of the deposit. It is unclear how this requirement would work in
practice, given that an enterprise that meets any of the above criteria is likely to be
experiencing financial difficulty and therefore be unable to re-pay these amounts in such
a short period of time.
Positions for which labour outsourcing is permitted
A list of just 17 positions (including drivers, secretaries and receptionists) listed in
Decree 55 are permitted to be outsourced through a specialised enterprise. The
duration of the outsourcing must not exceed 12 months.
Purpose of labour outsourcing
Labour outsourcing is permitted for the following purposes:
June 2013
(i)
(ii)
(iii)
where the usual employees of the recipient enterprise are involved in a labour
dispute or strike;
(ii)
(iii)
(iv)
Case Commentary: Mr. Ly Chenh Tai. v. Hoa Sen Garment Co., Ltd.
Judgment No. 03/2007/LD-GDT dated 05 June 2007
Following the recent introduction of various implementing Decrees under the new
Labour Code, this month's case commentary looks at the judicial review of Decision No.
03/2007/LD-GDT dated 05 June 2007 of the People's Supreme Court of Ho Chi Minh
City, concerning a labour dispute between Hoa Sen Garment Co., Ltd. (Hoa Sen) and
one of its employees, Mr. Ly Chenh Tai (Mr. Tai).
The Facts
On 01 January 2005, after working for almost two years under fixed-term labour
contracts, Mr. Tai entered into an indefinite labour contract with Hoa Sen. On 22
October and 11 November 2005, Hoa Sen recorded workplace incidents involving Mr.
Tai, for which he received written disciplinary records which he was required to
countersign. Then, on 17 November 2005, Hoa Sen sent a written notice to Mr. Tai
stating that the labour contract between Mr. Tai and the company was being terminated
due to the redundancy of Mr. Tai's position. Five days later, the company issued a
further disciplinary record to Mr. Tai as he had not signed the disciplinary records as
required. At this point ,Hoa Sen decided to refer the matter to its internal Committee on
Discipline and Awards, and to suspend Mr. Tai's employment for 15 days pending the
committee's decision. Again, Mr. Tai did not accept such decision, so Hoa Sen issued a
fourth record of discipline in response.
On 23 November 2005, Hoa Sen officially decided to dismiss Mr. Tai, for disciplinary
reasons, being that he violated the company's internal labour rules by having three
disciplinary notices simultaneously outstanding. On 17 January 2006, Mr. Tai
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commenced legal action against Hoa Sen alleging unlawful termination of his labour
contract.
The Decision
At first instance, the People's Court of Tay Ninh Province held that Hoa Sen had
terminated the labour contract unlawfully and in contravention of Article 17.1 of the
Labour Code (as then in force), which provided that where an employee of 12 months or
longer becomes unemployed for reasons of redundancy, and the person's employer
cannot re-train and assign the employee to a new job, that employer must pay an
allowance for loss of work equivalent to the aggregate amount of one month's wages for
each year of employment, but no less than two months' wages. Hoa Sen was therefore
ordered to make payments to Mr. Tai including redundancy, lost salary from November
2005 to March 2006 and several further allowances including 45 days in lieu of notice,
social insurance and payments for Mr. Tai's remaining annual leave days in 2005.
This case
highlights the
importance of
clear
communication
by employers to
employees of the
legal basis for
any disciplinary
action taken
Hoa Sen appealed to the Appeal Court of the Supreme People's Court of Ho Chi Minh
City the entire initial judgment on the basis that Mr. Tai's termination was not unlawful as
he was dismissed as a disciplinary measure for his violation of the company's internal
labour rules as permitted under Article 85 of the then current Labour Code. Despite the
fact that Hoa Sen had appealed the entire judgment of first instance, the Appeal Court of
the Supreme People's Court of Ho Chi Minh City considered the appeal with reference
to only part of the initial trial (regarding the amount of social insurance to be paid), and,
on this basis, retained the judgment of the first instance Court. Therefore, Hoa Sen
submitted a further request for a judicial review of the appeal decision on the basis that
the Appeal Court failed to follow proper legal procedure.
At the judicial review level, the People's Supreme Court of Ho Chi Minh City set aside
the judgment of the Appeal Court as it found that the Appeal Court failed to reconsider
the nature of the termination of the labour contract. Following this, the case was sent
back to the People's Supreme Court of Ho Chi Minh City to re-consider the appeal.
Moreover, the judicial review judgment noted that:
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The judgment at first instance holding that Hoa Sen unlawfully terminated its
labour contract with Mr. Tai by reason of Article 17.1 lacked legal basis; and
The Appeal Court violated proper procedure by failing to reconsider whether the
termination in question was regulated by Article 17.1 or Article 85 of the Labour
Code, and therefore whether it was legitimate.
Commentary
It appears from the notice issued by Hoa Sen on 17 November 2005 that the company's
initial intention was to terminate the labour contract with Mr. Tai under Article 17.1 of the
Labour Code (ie., for reasons of redundancy). However, Hoa Sen later officially
dismissed Mr. Tai for disciplinary reasons (ie. his violation of the company's internal
labour rules), which was separately provided for by Article 85 of Labour Code. As a
result, the Court should have considered the legitimacy of the Hoa Sen's actions in the
light of Article 85, rather than Article 17.1. Nevertheless, to avoid such confusion, it
would have been advisable for Hoa Sen to clearly state in its disciplinary dismissal
decision that the 17 November notice was invalid.
In addition to being an interesting example of the consequences of a failure by a court to
follow proper legal procedure in the context of an appeal, this case is a useful reminder
to employers that, in the course of terminating employment, they should consider any
fact which is likely cause confusion between the termination of labour contract under
Article 17 (ie. for reasons of redundancy), and disciplinary dismissal under Article 85.
These considerations remain relevant to employers under the 2012 Labour Code which
contains similar provisions under Articles 44 and 126 respectively.
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Draft Resolution amending Legislative Programs for 2013 and 2014, May 2013
Circular 77 lowering the interest rate for State investment loans to 11.4% and for
State export loans to 9.3%, 4 June 2013
Circular 14 fixing the maximum interest rate for USD deposits from organisations
at 0.25% and from individuals at 1.25%, 27 June 2013
Circular 15 fixing the maximum interest rate for VND on-call deposits and term
deposits of under one month at 1.2%, and for VND term deposits of one month
up to below 6 months at 7%, 27 June 2013
Circular 16 fixing the maximum VND short-term lending interest rate for
borrowers in certain economic sectors at 9%, 27 June 2013
Hanoi
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