Đánh cược với Luật, độc chiêu giữ Tây mua nhà

(VNN) Nghị định, Thông tư hướng dẫn cho người nước ngoài mua nhà, theo Luật Nhà ở (sửa đổi) vẫn chưa được ban hành. Tuy nhiên, để giữ chân khách Tây, một số dự án đã “ôm” rủi ro chính sách để đảm bảo quyền lợi cho thượng đế.

Chỉ khoảng 200 giao dịch của người nước ngoài sau 1/7

Đây là con số thống kê được từ các sàn bất động sản chuyên bán căn hộ khu vực trung tâm TP.HCM, nơi có nhiều khách nước ngoài quan tâm. Số lượng giao dịch này quá thấp so với nhu cầu của nhóm Việt kiều và người nước ngoài. Điều này cũng lý giải tại sao nhiều sàn giao dịch vẫn chưa thực sự quan tâm đến phân khúc khách hàng này.

Ông Nguyễn Nam Hiền, TGĐ Hưng Thịnh Land, chia sẻ, các dự án do đơn vị này phân phối hiện có cả phân khúc trung và cao cấp. Tuy nhiên, đối tượng hướng đến chủ yếu vẫn là khách hàng trong nước, mua để ở.

bán nhà cho Tây, cho người nước ngoài mua nhà, bảo lãnh ngân hàng, Luật Nhà ở

Nhiều khách hàng Việt kiều, người nước ngoài có nhu cầu mua, nhưng vẫn dừng lại ở mức thăm dò, tìm hiểu dự án. Họ chưa dám xuống tiền vì còn chờ Nghị định, Thông tư hướng dẫn.

Ông Trần Lê Thanh Hiển – TGĐ CTCP Sàn giao dịch Bất động sản Danh Khôi Việt (DKRV), cho biết, khách nước ngoài, Việt kiều đến tìm hiểu thông qua sàn này khá nhiều nhưng chưa có giao dịch, hoặc giao dịch thông qua người thân ở Việt Nam.

Rất ít sàn có đội ngũ tư vấn riêng cho Việt kiều, người nước ngoài như Khải Hoàn Land, Việt Đô hay Seareal… Thống kê sơ bộ, Khải Hoàn Land giao dịch thành công 80 căn, Seareal 30 căn, An Lộc Điền 2 căn. Những doanh nghiệp lớn như Phú Mỹ Hưng, Novaland, Capitaland, Hung Thinh Corp chưa công bố con số cụ thể.

Bên cạnh những doanh nghiệp tranh thủ đón nhu cầu thì cũng có những băn khoăn khi bán nhà cho người ở nước ngoài. Ông Đỗ Văn Mạnh, TGĐ Công ty Đất Xanh Miền Nam, đơn vị phân phối dự án Saigonres, cho biết, đây là dự án căn hộ cao cấp ngay trung tâm Bình Thạnh nên khá nhiều khách Việt kiều, nước ngoài đến tìm hiểu. Đây là tín hiệu tốt, nhưng công ty cũng lo ngại quá trình thanh toán theo hợp đồng khi họ không ở Việt Nam.

Độc chiêu “5 ăn 5 thua” để níu khách của chủ đầu tư

Trong thời gian chờ đợi hướng dẫn Luật Nhà ở, một số doanh nghiệp đã không chịu “bó tay”, đứng nhìn khách Tây đến rồi đi. Cam kết trả lại tiền nếu khách không đủ điều kiện mua, khi có Thông tư hướng dẫn là cách mà một số dự án đang áp dụng.

Ông Trần Hiền Phương, GĐ sàn Seareal, đơn vị phân phối các dự án cao cấp như Vinhomes Central Park, Estella, Krista, Masteri Thảo Điền… cho hay, việc tư vấn pháp lý sẽ có chủ đầu tư hỗ trợ. Sàn không nắm chi tiết thỏa thuận giữa chủ đầu tư và khách hàng. Tuy nhiên, phải có hình thức đảm bảo quyền lợi thì khách mới ký hợp đồng.

Luật sư Trần Thái Bình, Công ty Luật LNT & Partners, chia sẻ, hiện Luật Nhà ở đã có hiệu lực, nhưng vẫn còn một số điểm vướng mắc cần hướng dẫn chi tiết. Theo luật sư Bình, cần làm rõ nhập cảnh hợp pháp là như thế nào; làm sao đảm bảo quy định người nước ngoài không được sở hữu quá 30% tổng số căn hộ của một tòa chung cư; người nước ngoài mua căn hộ sở hữu 50 năm, vậy sau 50 năm thì sao…

Ông Nguyễn Nam Hiền, TGĐ Hưng Thịnh Land, cho rằng, việc cam kết trả lại tiền cho người nước ngoài, nếu họ không đủ điều kiện sở hữu theo Thông tư hướng dẫn là điều có thể làm được. Tuy nhiên, với những dự án có tốc độ bán hàng nhanh như 8X Rainbow, Florira, Sky Center… của Hưng Thịnh thì việc cho giữ chỗ sẽ làm mất cơ hội bán hàng cho người Việt Nam đang có nhu cầu thực. Đây cũng là rủi ro cho doanh nghiệp nếu muốn níu khách Tây, Việt kiều.

Quốc Tuấn

Bài viết được thực hiện bởi Vietnamnet. (Link)

Bài có sự tham gia trả lời phỏng vấn của Luật sư Trần Thái Bình, công ty luật LNT & Partners

The First Double Taxation Avoidance Agreement between Vietnam and USA

On 7 July 2015, The Socialist Republic of Vietnam (Vietnam) and The United States of America (US) signed the first income tax treaty – Double Taxation Avoidance Agreement (DTAA or the Treaty) – and adopted a Protocol between the two countries for the avoidance of double taxation and prevention of fiscal evasion of taxes on income. This Treaty will take effect after being ratified by each country and exchanged the instrument of ratification by the two jurisdictions. According to Deputy Minister Do Hoang Anh Tuan, Ministry of Finance, the ratification period will take approximately one year.

DTAA aims to eliminate the double taxation of income or gains arising in one contracting state and paid to the other contracting state and prevent the fiscal evasion regarding income taxes of any persons or companies from the contracting states.

For Vietnam, the applicable taxes shall include personal income tax and business income tax, likewise, the applicable taxes in the US are the Federal income taxes imposed by the Internal Revenue Code and the Federal taxes imposed on the investment income of foreign private foundations.

The DTAA also provides a number of key provisions on how to avoid the double tax.

  1. The broader definition of “resident status of a contracting state” and “permanent establishment”

The Treaty provides similar manners to determine a resident of a country to Vietnam’s provisions. Notably, the term of “residence of an individual” is also defined as the established and maintained place of the pension fund or organization that his incomes or gains are derived from.

Under the Treaty, permanent establishment consists of building sites, construction, exploration, assembly or installation of project, supervisory activities which last more than 06 months in a contracting state. The definition is expanded to encompass the place of providing consultancy services for the same and connected project within a contracting state for a period or periods computing more than 06 months within any by an enterprise of the other contracting state.

2. The maximum allowable tax rates of dividends, interests and royalties

The Treaty regulates the maximum allowable tax rates of dividends, interests and royalties as follow:

  • The maximum tax rate on dividends is 5% if the beneficiary is a Vietnamese company owning directly at least 25% of the voting stock of an American distributing company or an American company owning directly at least 25% of the capital of a Vietnamese distributing company. Such dividends are taxed in the country of which the distributing company is considered as resident. All other cases are taxed 15% of the gross amount of dividends.
  • The Treaty also provides that dividends paid by an American Regulated Investment Company (RIC) have maximum tax rate at of 15%. However, the dividends paid by an American Real Estate Investment Trust (REIT) or Vietnamese Real Estate Investment Fund (VREIF) are subject to a maximum tax rate of 15% if only the specific thresholds are met.
  • Article 11 of the Treaty provides that the maximum allowable tax rate of interest is at 10% of the gross amount. However, if interest payments are determined with references to receipts, sales, income, profits or other cash flow of the debtor, to any change in the value of any property of the debtor or to any dividends, partnership distribution or similar payment made by the debtor, the maximum rate can increase up to 15%.
  • Under the Treaty, royalties are sourced to the residence of the payer. The payments specified in the Article 12.3(a) of the Treaty are taxable at a maximum rate of 5%. Royalties paid for the use of or the right to use any copyright of literary, artistic, scientific or other work or any patent, trademark, design or model, plan, secret formula or process will be subject to a maximum allowable 10% tax rate.

 

Effect of eliminating double taxation in Vietnam

Individuals or companies who are considered as Vietnamese residents are granted the benefits of a credit for income taxes paid on income, profits and gains in the US. Moreover, Vietnamese companies owning at least 10% of the voting rights of a company which is a resident of the US can obtain an indirect tax credit in the US.

By Vietnam Law Insight (LNT & Partners)

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com

New Proposals for Commercial Mediation (ADR)

As a matter of implementing Resolution No. 49-NQ/TQ of the Politburo dated 2 June 2005, as well as implementing Vietnam’s commitments on acceding to the WTO, the State has been developing the new Decree to govern the alternative dispute resolution (ADR) for commercial disputes, called commercial mediation.

According to the draft composer, the Decree shall adopt relevant principals of UNCITRAL’s Model Law, these principals are:

  • The mediation process must always have the presence of a neutral third party to assist the parties in the dispute to settle.
  • Mediation is a voluntary solution, except unless otherwise required by laws or the type of dispute.
  • The parties in dispute participate in the process of mediation to build and to reach a mutual agreement themselves.
  • Mediation creates a safe, friendly communication environment for the parties in the dispute.
  • Mediation could be an independent procedure or part of court or arbitral procedure.
  • Mediation is confidential.
  • Mediation does not affect or prevent the parties from using other dispute resolution methods.

For a summary of the above principals, it is concluded that if mediation is successful, the parties would have another agreement to settle the dispute, called the settlement agreement. In case either party does not honor the settlement agreement, the remaining party could request that the court or arbitration make a request for honoring the settlement agreement.

Within the content of this article, we will discuss the binding effect of a settlement agreement under the draft Decree on Commercial Mediation dated 17 June 2015.

According to Articles 25 and 26 the draft Decree, it is written that a settlement agreement would have the effect of binding the obligations of the involved parties. Also, either party has the right to request the Court to recognize the settlement agreement. The procedure and process make the request to the Court must follow the regulations of Civil Procedure Code.

Speaking of this, we are of the opinion that when drafting the Decree with the above contents, there are two issues to be discussed:

  • First, it is contrary to the principals of the UNCITRAL’s Model Laws that mediation result is some form of a new agreement, or a new contract between the parties in dispute. The point is that, in other countries, in the event that one party breaches the settlement agreement, the remaining party can bring the settlement agreement to court or arbitration. At this stage, the court or arbitration shall not re-adjudicate the whole relationship or issues before the time the parties enter into the settlement agreement, but only review the settlement agreement as a new contract between the parties that replaces any other previous issues.
  • Secondly, there is currently no specific provision in both the Law on Commercial Arbitration or the Civil Procedure Code. Therefore, the Law on Commercial Arbitration and the Civil Procedure Code must be amended to be suitable for this Decree, however this solution is not possible. Moreover, there are some opinions that currently, the procedure for recognizing a foreign award or judgment is very complicated and risky, therefore, to add this issue may result in more complexity to the system.

We are of the opinions that Articles 25 and 26 of the draft Decree should be amended in the approach that the settlement agreement is a new contract that replaces all other previous issues relating to the parties, in case where one party dishonors the settlement agreement, the other party can request the court or arbitration to instigate a new case for its enforcement.

By Vietnam Law Insight (LNT & Partners)

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com

Satisfy Demand for Securities Investment by Foreign Investors

Content of the new Law

On 26 June 2015 the Government issued Decree No. 60/2015/ND-CP (“Decree 60”) amending and supplementing certain provisions of Decree No. 58/2012/ND-CP, on the detailing and guiding the implementation of selected provisions of this, and the Law on Securities, which is considered as good news to foreign investors, since the long-awaited provisions will allow for majority ownership and control of public companies by foreign investors.

In this Decree, the foreign ownership ratio is extended to the Vietnamese securities market. Currently, a foreign investor may purchase up to 49% of total shares of a public joint stock company (JSC) or a listed company.  Beginning on the 1st of September 2015, this general restriction will be removed and instead, the new restriction will be subject to the WTO commitments or other specific domestic laws (e.g., the 30% cap in the banking sector). If there is a specific restriction under domestic law that has yet to be specified, then the rule of thumb is 49%.

When there is no restriction under domestic law (e.g., for production companies, or distribution companies), then there is no limit for the foreign shareholding ratio. This rule also applies to equitized SOEs, with the aim of attracting more foreign investment in the privatization program.

As for securities companies (or investment banks), those who are eligible to establish 100% foreign owned securities companies are allowed to buy up to 100% equity of local securities companies. Those who are not eligible can acquire up to 51% total shares.

Decree 60 also lifts all restrictions to foreign investors to purchase bonds. With respect to share certificates or derivative products of stocks of JSCs, the restriction will be relaxed as mentioned above. For this purpose, open funds or securities funds that have foreign shareholding more than 51% equity will be deemed as foreign investors. Decree 60 also addresses many other functions of foreign investment in public companies, along with other key aspects related to securities investment for foreigners.

Implications for Foreign Investors

The Decree is expected to act as a catalyst for more foreign investment in the private and State-owned sectors in Vietnam. It is intended to add vitality to the Vietnam securities markets and an extra boost to the equitization of State enterprises, as part of a plan to upgrade Vietnam from “frontier” market classification to “emerging” market classification at MSCI. It is reported that the shares with strongest liquidity on the Vietnamese stock exchanges are shares of issuers for which the 49% foreign equity quota has been used up. As such, the Decree is expected to act as an impetus to further foreign investment in Vietnam’s capital markets, both in equity and in debt markets

The Decree takes effect on September 1, 2015, and replaces Prime Minister Decision No. 55/2009/QD-TTg (15 April 2009) on the ratio of foreign investor’s participating on the Viet Nam securities market.

By Vietnam Law Insight (LNT & Partners)

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com

Corporate Income Tax Provides Boost High Tech Sector

Circular No.96/2015/TT-BTC dated 22 June 2015 guiding changes prescribed in Decree 12/2015/ND-CP and amending three circulars of corporate income tax (“CIT”) including 78/2014/TT-BTC, 119/2014/TT-BTC and 151/2014/TT-BTC.

 

Content of the new Law

This Circular provides considerable changes in CIT incentives, and tax deductible expenses which could bring more advantages to corporations in general and companies in the high technology sector.

The method to apply and extend CIT incentives is amended in order to be aligned with the new Law on Investment. Accordingly, new investment project stated in the list of industrial support products prioritized for development are subject to 15 years of 10% CIT rate, 4 years of CIT exemption and 9 years of CIT reduction, provided that such products support the sectors of either high technology as stated in the Law on Technology, or garment, textile footwear, information technology automobile production, and are not able to be produced in Vietnam as at 01 Januray 2015 or meet the EU quality standards if these products are domestically produced.

In addition, investment projects which were not, in general, entitled to any CIT incentives previously or located in areas where such are not encouraged in the past, will be allowed to apply for the  new and favourable CIT incentives regime in the remainder of phases from the tax year 2015.

The circular also modifies regulations of tax deductible expenses. Consequently, the caps on business trip per-diems are abolished; documents to prove expenses arising from renting individual’s assets is now simpler; certain expenses related to staff training are fully deductible for tax declaration; and the calculation method applied to non-deductible interests on debt corresponding to the portion of charter capital not yet contributed is regulated in detail.

Some other changes and supplements related to losses carried forward to the next year of real easte conveyance, tax-exempted income and dossier of CIT declaration and payment are prescribed in detail in this circular.

Implications for Business

From the aforementioned points, the circular is expected to support corporations in circumstances of new investment law. In order to assist companies in applying such circular, the Ministry of Finance issued dispatch 2512/TCT-CS to briefly summarize the new contents in this Circular.

The simpler application to calculate the CIT and the lifting of caps on trip expenses for tax are to bring a business-friendly environment for corporations when it comes to tax expense management. As a result, this is expected to lead to more active investment in Vietnam, and contribute to the country’s investment climate.

The Circular 96/2015/TT-BTC will come into effect from 6 August 2015.

By Vietnam Law Insight (LNT & Partners)

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com

New Legal Framework to Streamline Licensing and Set up of Commercial Banks

The Content of the new Framework

On June 30th, 2015 the Government issued Circular No. 08/2015/TT-NHNN (Circular 08) in lieu of Circular No. 40/2011/TT-NHNN (Circular 40) for the issuance of licenses and the organization and operation of commercial banks, foreign bank’s branches, representative offices of foreign credit institutions, other foreign organizations that have banking activities (Commercial Banks)  in Vietnam.

This Circular 08 has formulated a full and basic legal framework on procedures for, and dossiers on amendments, supplementation regarding operation contents of Commercial Banks. Furthermore, the formality of proposal dossiers for operational licensing and new establishment license template of Commercial Banks are also regulated in such a new circular.

Besides the new licensing issuance procedure in Circular 40, Circular 08 is expected to add three more new licensing procedures for Commercial Banks, including license replacement issuance, supplementation issuance of operation content to present license and supplementation issuance of operation content associated with license replacement issuance. With respect to the principle of building licensing dossiers, the non-notarized counterpart of documents are duly accepted, provided that those are obtained along with original copy for reference; while the referring person shall sign for confirmation and shall be responsible for the documents’ accuracy. The new establishment license template has the operation content part specifically noting that all banking functions which Commercial Banks are entitled to conduct are in accordance with Law on Credit Institutions and others activities approved by the State Bank.

Business implications

With respect to changes in the State Bank’s licensing activities applied to Commercial Banks in Vietnam, the impact on business will specifically be in banking sector. Accordingly, all approval for changes in registration for the operation of credit institution shall be noted in the Operation License by license replacement issuance. In the event of an amendment or supplementation in the operational content without need for a replacement license, Commercial Banks shall still conduct the proposal procedure on supplementing operation content via the approval instruments of the State Bank. Approval for non-notarized documents in the application dossier shall benefit from a more prompt and efficiently implemented licensing procedure. The more detailed and obvious the licensing procedures is, the more conveniently credit institutions can implement their business.

Our Recommendation

In light of this, we would recommend that commercial banks, branches and representative offices of foreign banks should update their Operation License by implementing the license replacement issuance procedure. The above-mentioned action shall result in owning a kind of detailed and unique valid instrument as a basis of banking operation. With efforts to comply with such new provisions, Commercial Banks shall benefit from good, efficient performance that will positively develop their business.

The Circular No. 08/2015/TT-NHNN will come into effect on August 13th, 2015.

By Vietnam Law Insight (LNT & Partners)

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com

BBGV Breakfast Seminar: Law on Investment 2015 in Action

Event details

The BBGV is hosting a Breakfast Seminar about: Law on Investment 2015 in Action.

LNT & Partners proudly supports and speaks at this event.

Please join Mr Tuan, Deputy Director of the Legal Department of the Ministry of Planning and Investment and Dr Net from LNT & Partners as they provide information on the new provision in the investment law; how it can affect your business structure and discuss whether the new provisions provide an improved investment climate for foreign owned companies.

Date and Time: Friday 14th August 2015, from 7:30AM to 9:00AM

Venue: Cat Ba Room, InterContinental Asiana Saigon, HCMC

The new Law on Investment became effective in July 2015, purported to make landscape reform to Vietnam business environment for foreign investors. How this new law will affect the business in practice and benefit your business? How would current projects already invested in Vietnam co-op with the new law? What would be the procedure for foreign investors to establish or acquire a company in Vietnam? How about the HS Code requirement in the Investment Registration Certificate?

These Questions will be answered by Mr Quach Ngoc Tuan, Deputy Director of the Legal Department of the Ministry of Planning and Investment (MPI) and Dr Le Net, partner at LNT & Partners.

Entrance Fees: – BBGV Members: VND 500,000 – Non-members: VND 600,000

RSVP to Nga at nga.nguyen@bbgv.org or call 08 3829 8430

Reservations not cancelled within 48 hours of the event will be charged as will no-shows and invoiced.

About the Speakers

Mr Quach Ngoc Tuan

Mr Quach Ngoc Tuan is the Deputy Director of the Legal Department of the Ministry of Planning and Investment (MPI).  He was the key person in the drafting committee of the Law on Investment, as well as the Decree implementing the new Law on Investment. Before joining MPI, Mr Tuan worked at the People’s Court of Ninh Binh Province.

Dr Le Net

Dr Net 1

Le Net is a partner at LNT & Partners, in charge of infrastructure, international arbitration and financial services. He has more 18 years of experience, and was a leading counsel in ICC arbitrations and awarded Lawyer of the Year in 2012 by the Ministry of Justice’s Law Journal.  Net was behind many complex cross-border infrastructure, M&A, banking and finance transactions.  Net is also an arbitrator of Vietnam International Arbitration Centre, and a member of Vietnam Bar Federation’s National Council.

Net co-founded LNT & Partners, one of the major leading Vietnam law firms, being the only Vietnam law firm ranked in FT 25 Innovative Lawyers 2015 by Financial Times, and Vietnam Deal Firm of the Year in 2014 by ALB Thomson Reuters.

Final LNT breakfast seminar

Vietnam Opening the Doors for Portfolio Foreign Investment

Following the relaxation of the foreign investment procedure under the new Law on Investment (LOI) and the Law on Enterprise (LOE), the Government has now also relaxed the room for portfolio foreign investment as well as the equitization of state owned enterprise (SOEs).

Furthermore, the Decree provides for the equitization of state owned enterprises (SOEs), and this action is expected to attract more share acquisition in stock markets as well as private equity soon. Currently, a foreign investor may purchase up to 49% of total shares of public joint stock company (JSC) or a listed company.  From 1 September 2015, this general restriction will be removed under Decree 60/2015/NĐ-CP dated 26 June 2015 (Decree 60).

Click here to downloa Decree 60 – Open Doors for Portfolio Foreign Investment

Instead, the new restriction will be subject to the WTO commitments or other specific domestic law (e.g., the 30% cap in the banking sector). If there is a specific restriction under domestic law that has yet to be specified, then the rule of thumb is 49%.

When there is no restriction under domestic law (e.g., for production companies, or distribution companies), then there is no limit for the foreign shareholding ratio. This rule also applies to equitized SOEs, with the aim of attracting more foreign investment in the privatization program.

As for securities companies (or investment banking), those who are eligible to establish 100% foreign owned securities companies are allowed to buy up to 100% equity of local securities companies. Those who are not eligible can acquire up to 51% total shares.

Decree 60 also lifts all restrictions to foreign investors to invest in bonds. With respect to share certificates or derivative products of stocks of JSCs, the restriction will be relaxed as mentioned above. For this purpose, open funds or securities funds that have foreign shareholding more than 51% equity will be deemed as foreign investors.

In addition, Decree 60 addresses the following changes:

  1. Private placement of public companies
  2. Share swap of public companies
  3. Public offering of shares in public companies for swapping shares in non-public companies, or equity in limited liability companies
  4. Private placement filing at the State Securities Commission (SSC) for public companies
  5. Public offering process, use of escrow account for public offering proceeds
  6. Public offering of investment certificates or shares abroad
  7. Redeem shares
  8. Tender offers
  9. Sale of treasury shares
  10. Listing of merged or amalgamated companies
  11. Upcom transaction registration and listing
  12. Real estate capital valuation and contribution to real estate investment fund

While opening the door to, and creating more options for foreign portfolio investment, as along with the deregulation of various procedures at SSC are certainly attractive to foreign investors, it is unclear how other restrictions under different ministries, such as Ministry of Health, Ministry of Education, Ministry of Industry and Trade may impact on the intention of the Government to open up the market.

Note that Art 74.3 LOI allows for the “non-compliant” restriction of business to be valid until 1 July 2016, suggesting there could be some more grounds of clarification and explanation to come.

By Vietnam Law Insight (LNT & Partners)

For more information about this article, please contact the author: Dr. Le Net, LNT & Partners, at the email: Net.le@LNTpartners.com

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com

Conditional Acceptance of the Construction Works for Commissioning

The Law

On 15 May 2015 the Government issued Decree No. 46/2015/ND-CP (Decree 46) to provide further guidance on the Law on Construction 2015 with respect to quality management and maintenance of construction works, pointing out:

“The responsibility for the quality of the works remains with the survey construction contractors, design contractors, and supply contractors, even after their work has been inspected and accepted by the employer, or after the defect liability period has expired. This means that these contractors may be held liable for damages evidenced to be caused by the quality of their works.”

What does it mean for businesses?

Under Decree 15/2013/ND-CP, acceptance of construction works for commissioning into use when they have not satisfied all requirements of the design, of national technical regulations, of standards applicable to the construction works, and the technical specifications and other requirements of the employers specified in the agreements is generally not allowed.

However, Decree 46 entitles the employer to conditionally accept the construction works for commissioning into use, if the issues with respect to quality of construction works do not affect the weight-bearing capacity, the life cycle and the functions of the works and if the construction works conform to the safety requirements.

Decree 15/2013/ND-CP allows the employer and contractor to freely agree on the minimum amount of the warranty fee retained by the employer. However, to the extent of State owned works, this has been restricted by Decree 46. Accordingly, the warranty fee for State owned works must not be less than 3% of the contract value for works of grade 1 or special grade, and 5% of contract value for the works of other grades.

Decree 46 stipulates that survey contractors should pay significant attention to the quality of their works. Therefore, we suggest that survey contractors to provide sufficient and eligible resources to ensure their works are compliant with the technical plan, as this is required by Decree 46. We would also warn that the Decree also entitles the employer to completely suspend the construction survey works upon finding them not compliant with the technical plan, or the construction survey agreement.

Decree 46 will take effect from 01 July 2015

By Vietnam Law Insight.

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com

Construction Master Planning: More Defined Procedures

Decree No. 44/2015/ND-CP Clarifies Construction Master Planning

What does the law say?

On 6 May 2015, Government issued Decree No. 44/2015/ND-CP, providing guidance for a number of regulations on construction master planning (“Decree 44”). This Decree provides detailed regulations on a number of articles in the Law on Construction No. 50/2014/QH13, including the formulation, evaluation and approval of construction master planning, as well as master planning implementation and planning permits.

What does this mean for businesses?

More defined procedures for construction industry and investors

Firstly, specific functional areas with the scale over 500 ha shall be put under the general planning category, to ensure the suitability for provincial planning, urban planning, and to form a basis for zoning, and detailed planning.

Secondly, areas (over and below 500 ha) inside specific functional areas shall be put under the general planning category, ensuring its suitability for provincial planning, urban planning, and again to form a basis for zoning planning and detailed planning.

Thirdly, Areas inside specific functional areas upon instruction shall be placed under the detailed planning category, in order to ensure that the general planning framework, and zoning planning is more rigid, and to form a basis for issuance of the construction permit.

Fourthly, in the event that a single investor undertakes a construction project of less than 5 ha, (or under 2 ha if it is an apartment building project), the project must be created without the formulation of a detailed construction planning. Drawings of the general site plan, architectural plan, solutions to technical infrastructure in the fundamental design must comply with zoning plans or planning permits, ensuring the connection with technical infrastructure and compliance with architectural space in the area.

Finally, the planning permit shall be issued to investors who are qualified for implementing the investment in the construction project. The maximum period of a planning permit with respect to a concentrated construction project is 24 months from the date of issuance, until the detailed planning is approved. The maximum period for a planning permit with respect to a separate construction project is 12 months from the date of issuance until the construction project is approved.

Streamlined instruction on planning permits

The following functional areas directly related to the issuance of the planning permit are detailed in Decree 44: (i) procedures for the issuance of planning permit; (ii) application for obtaining planning permit; and (iii) contents of the planning permit. For any construction planning project with the planning tasks being approved before the effective date of this Decree, the formulation, evaluation and approval shall be conducted under the Government’s Decree No. 08/2005/NĐ-CP dated 24 January 2005 on construction planning.

Decree 44 shall take effect from 30 June 2015.

By Vietnam Law Insight.

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com

Expands Customs Priority Policy to Brokers and Key Investment Projects

New Circular from the Ministry of Finance Expands Customs Priority Policy to Brokers and Key Investment Projects

The law

On 12th May 2015, Ministry of Finance issued Circular No. 72/2015/TT-BTC that will regulate on the application of priority policies in customs procedures, customs inspection and supervision for exported and imported goods of enterprises (hereinafter referred to as “Circular 72”). Circular 72 will replace Circular No. 86/2013/TT-BTC dated June 27, 2013 (hereinafter referred as “Circular 86”) and Circular No. 133/2013/TT-BTC dated September 24, 2013 of the Ministry of Finance.

Under the new circular, the priority policy has had its subject and scope broadened and expanded, with the conditions for application of priority now less strict, and the procedures simplified in comparison with the previous Circular 86.

The customs priority regime will be expanded to include eligible customs brokers and projects, rather than only for enterprises, as noted in the previous Circular 86. The scope of privileges has expanded beyond just businesses to include various subjects including enterprises, customs brokers and key investment projects agreed by the Prime Minister. The conditions stated for the amount of import or export turnover for enterprises has been reduced from US$200 million annually to US$100 million annually.

What does this mean for businesses?

In terms of procedures, Circular 72 waives the stage of undertaking the Memorandum of Understanding (“MOU”) in the verification process. Instead of separating the appraisal procedure into two stages which are generating the MOU and issuance of the Decision on recognition of prioritized enterprises as stipulated in Circular 86. Circular 72 streamlines the process as the Decision will be signed by the Director of the General Department of Customs within 10 working days since the completion of inspection process, without making the memorandum if enterprises meet the conditions for application of priority policy. Moreover, enterprises will submit the dossiers to the Customs Department of the province where the headquarters of the enterprise is located, instead of the General Department of Customs. Furthermore, the right to customs clearance with incomplete declarations will be granted to enterprises more generally, instead of only applying this in the event that the database system of the customs offices meet malfunction or temporarily stop operation.

Businesses should also note that the time schedule for the processing of dossiers is not clearly stated in this Circular, while Circular 86 explicitly specifies that the time limit for consideration to recognize the prioritized business shall not exceed 45 working days.

Circular 72 will take effect on 26th June 2015.

By Vietnam Law Insight.

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com

New Legal Framework for Vietnam’s Nascent Derivative Securities Market

The Law

On 5 May 2015, the Government issued Decree No. 42/2015/ND-CP on derivative securities and the derivative securities market, which is considered as the very first legal framework for the derivative securities market of Vietnam to come into operation in 2016.

This Decree recognizes futures contracts, options and forward contracts of which objects are underlying assets being securities and/or other assets used as the basis for fixing the value of the derivative securities as derivative securities. There will also be other kinds of derivative securities as recognized in accordance with guidelines of the Ministry of Finance. These newly recognized derivative securities may be traded on the derivative securities market as provided by the laws.

In principle, any organization or individual may invest in derivative securities on the derivatives market, except for certain organizations, such as securities companies, fund management companies, credit institutions and State-owned companies, which must satisfy certain requirements before investing in the market.

Furthermore, for the purpose of conducting derivative securities trading and/or providing derivative securities clearance and payment services, an organization will need to obtain a certificate of satisfaction of conditions for the respective activities issued by the State Securities Commission. To obtain this certificate, in general and subject to activities registered to be conducted, the organization must satisfy a number of conditions, such as financial conditions, i.e. minimum charter capital; conditions on business results, ratios of available capital, professional rules and/or relevant requirements to be provided by the Ministry of Finance; and other conditions as provided.

What does this mean for businesses?

Through there has been a legal framework for securities trading in Vietnam since the introduction of the Law on Securities (70/2006-QH11), Decree 42/2015/ND-CP allows for more diversified securities products in the Stock Exchange, thus boosting liquidity in the securities market which will be great news for businesses that are increasingly using the Stock Market as a capital channel. Accordingly, Decree 42/2015/ND-CP is expected to support the securities market of Vietnam, increase competitiveness and help to narrow the gap between securities market of Vietnam and of other countries all over the world.

Decree 42 will take effect on 1 July 2015.

 

By Vietnam Law Insight.

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com

Từ 1.7, người mua nhà, đất phải “cõng” thêm hàng loạt chi phí

(Theo Giá nhà đất ở các đô thị lâu nay vẫn quá cao so với thu nhập trung bình của người dân. Tuy nhiên, khi Luật Kinh doanh bất động sản, Luật Đầu tư có hiệu lực vào ngày 1.7 tới cùng với việc áp dụng Luật Đất đai mới, giá nhà đất sẽ tiếp tục tăng vì những chi phí phát sinh.

Theo Luật Kinh doanh bất động sản năm 2014, trước khi bán, cho thuê mua nhà ở hình thành trong tương lai, chủ đầu tư phải được ngân hàng bảo lãnh. Điều này đồng nghĩa sẽ phát sinh thêm chi phí bảo lãnh, cộng dồn vào giá thành sản phẩm.
Gia nha dat, chi phi

Nhiều dự án chạy đua mở bán trước ngày 1.7

Luật sư Trần Thái Bình, Công ty luật LNT & Partners, cho rằng, việc quy định ngân hàng bảo lãnh có thể giúp khách hàng yên tâm hơn khi mua nhà. Tuy nhiên, việc này sẽ phát sinh chi phí và hiện vẫn chưa rõ ngân hàng sẽ bảo vệ quyền lợi cho khách hàng như thế nào khi chủ đầu tư mất khả năng triển khai dự án. Khi đó, ngân hàng sẽ đứng ra trả lại tiền cho khách hàng hay giao dự án cho công ty khác triển khai… Điều này vẫn chưa có hướng dẫn chi tiết.

Ông Nguyễn Văn Đực, Phó GĐ Công ty TNHH Đất Lành, băn khoăn, ngân hàng bảo lãnh thì chưa rõ họ lấy chi phí như thế nào. Nếu 1% – 3% thì chẳng ngân hàng nào dám, còn nếu 5% – 10% thì quá cao. Tất cả chi phí này cuối cùng người mua phải gánh chịu. Theo ông Đực, việc bảo lãnh nên để thỏa thuận dân sự, không nên bắt buộc, cứng nhắc.

Bên cạnh bảo lãnh, thì quy định ký quỹ theo Luật Đầu tư năm 2014 cũng là yếu tố tác động đến giá thành sản phẩm. Theo Hiệp hội bất động sản TP.HCM (HoREA), “mức ký quỹ để bảo đảm thực hiện dự án từ 1% đến 3% vốn đầu tư của dự án” là chưa phù hợp với thực tế. Cần quy định mức tỷ lệ ký quỹ phải nộp khác nhau giữa dự án lớn và nhỏ. Mặt khác, với chủ đầu tư dự án đã tự mình bồi thường tạo quỹ đất sạch thì không cần phải thực hiện nghĩa vụ ký quỹ. HoREA cho rằng, hệ quả cần được xem xét là toàn bộ chi phí của việc ký quỹ cũng sẽ được nhà đầu tư tính vào giá bán sản phẩm và cuối cùng người tiêu dùng là người sẽ gánh chịu.

Mới đây, HoREA cũng nêu một số ý kiến quan ngại khi thực hiện Luật đất đai 2013 và một số kiến nghị tháo gỡ. Về tiền sử dụng đất của tổ chức, doanh nghiệp, HoREA cho rằng cách thu tiền sử dụng đất  theo Điều 114, Luật Đất đai và Điều 4, Thông tư 76/2014/TT-BTC, của Bộ Tài chính, sẽ tạo thành một gánh nặng. Nó sẽ là một “ẩn số” trước khi doanh nghiệp ra quyết định đầu tư hay không nên đầu tư dự án. Cuối cùng chi phí tiền sử dụng đất cũng sẽ được tính vào giá bán mà người tiêu dùng lại phải gánh chịu khi mua sản phẩm bất động sản.

Theo HoREA, nên áp dụng cách tính tiền sử dụng đất theo đề xuất của UBND TP.HCM tại văn bản 196/BC-UBND ngày 8.11.2013 như sau: “Về lâu dài đề nghị nghiên cứu bỏ hẳn khái niệm “tiền sử dụng đất” mà thay thế bằng sắc thuế sử dụng đất ở với thuế suất nhất định, đề xuất khoảng 10% hoặc 15% bảng giá đất. Như vậy, vừa minh bạch, vừa dễ tính toán và loại trừ được cơ chế xin – cho. Hạn chế việc thu tiền sử dụng đất lần đầu quá lớn mà duy trì nguồn thu bền vững, lâu dài cho Nhà nước”.

Những kiến nghị của HoREA và vấn đề mà các chuyên gia đặt ra hiện vẫn chờ động thái tiếp theo của các cơ quan chức năng. Tuy nhiên, thị trường đã có nhiều diễn biến theo xu hướng chạy đua bán hàng trước khi có những “biến phí” từ ngày 1.7.

Theo  – An Bình
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