“Having signature on the commercial invoice in respect of imported goods” is not a new requirement in the importation and custom clearance procedures. However, this requirement has caused difficulties to importers when they import goods in practice, as there are still a number of discrepancies between the laws of Vietnam and international practices, without any remedy.

From the legal perspective, the requirements of the Ministry of Finance and Vietnamese Customs Authorities are base on Decree 51/2010/ND-CP, which stipulates that invoices must present signatures of the seller, seal of the buyer (if any), and signatures of the buyer. The entities who must comply with Decree 51/2010 are Vietnamese organizations, individuals who are selling goods, providing services in Vietnam’s territory or abroad; organizations, individuals imported goods in the local market regardless of producers or suppliers being Vietnamese or foreign organizations or individuals under Circular 64/2015/TTLT- BTC- BCT- BCA- BQP “With regard to goods sold or stored by entities other than importers, it is required to have invoices and/or documents of the selling entities as prescribed in Decree No. 51/2010/ND-CP.”

From the practical perspective, this regulation embarks a conflict with the common practice of making invoices by European countries in which all invoices are formed, retrieved electronically and without sellers’ signatures and seals in every single invoice. Annually, an automobile manufacturer can sell hundred thousands of products per year, the signing in each invoice is a hand work which makes time-squandering, human resource and increasing expenses. However, in order to complete the import procedure, enterprise must seek for ways to convince the manufacturers to provide their signature on invoices. This step has caused a lot of difficulties to enterprises because it is too hard for the manufacturers to change their goods trading management method contrary to the ordinary method in their home country. As a result, the completion of custom clearance of enterprises is often delayed for months from the scheduled business plan, which causes a lost in term of in business opportunity and cost burden to enterprises. In addition, the fact that the requirement on provision of invoice is still retained which is not caught up with the principle of Article 3.6(b) of Resolution 30c/NQ-CP enhancing the “application of information – telecommunication technology in the process of handling of works of administrative authorities, among administrative authorities and within transactions with organizations and individuals”.

With the understanding of these international practices, World Customs Organization (WCO) recommends its members not to have sellers sign commercial invoices when conducting the customs declaration, in particularly:

(16th MAY 1979)

RECOMMENDS that Members of the Council and members of the United Nations Organization or its specialized agencies, and Customs or Economic Unions, should :

  1. refrain from requiring a signature, for Customs purposes, on commercial invoices presented in support of a Goods declaration;[1]

Vietnam Customs authorities has been a member of WCO as of 01 July 1993 and entered into Kyoto Convention on the Simplification and Harmonization of Customs Procedures. After many renovations to adapt WCO’s objectives and policies, Vietnam Customs procedures have been modernized and reduced significantly yet not abrogated the requirements on signatures affixed to invoices due to existing “barriers” in Decree 51.

The main purpose for presentation of commercial invoices in customs procedures is to make a basis for determining customs values of the goods, goods origin and tax amounts imposed on goods at the time of import. In the Internet age, the authenticity of invoices can be checked by various methods. Therefore, we should learn a feasible way of other countries to check manufacturers’ database to conclude the accuracy of total value of goods rather than request them to sign in each of invoices. Customs Authorities can request the manufacture to send the detailed information of imported goods for checking, or confirm the accuracy and completeness of such invoices. From the author’s perspective, by taking advantage of the internet tool, the checking and verifying the accuracy of commercial bills will easier and more efficient.

 Author: Nguyen Thi Chau Thanh – LNT & Partners




High hopes for Vietnam’s capital markets in 2017

Vietnam is hoping the combination of a relaxation of foreign investment rules, for, stock exchange growth, a push for state-owned enterprises (SOE) equitisation and a gradual opening of bond markets will help its economy to grow this year. Asialaw spoke to lawyers in the jurisdiction to get a glimpse into the latest changes and expected trends in the capital markets for 2017.

Encouraging foreign investment

One of the major changes to encourage foreign investment in Vietnam is that certain industries including, securities firms, were opened up to 100% foreign holding in 2016.

 Le Net

“With the removal on foreign ownership cap at 49%, those needing capital to grow will be able to,” says Le Net, partner at LNT & Partners. “PE [private equity] and M&A interest have been coming from Thailand, Japan, China, Korea and Indonesia,”

 “There are other 18 sectors including transportation, construction and real estate where offshore investors can take a degree of ownership subject to certain conditions,” says Dang The Duc, managing partner at Indochine Counsel. “The increase of foreign ownership will create positive sentiment for the investors, enhancing stock market liquidity and M&A activities in Vietnam, especially for big companies with the aim to increase their market share.”

Growth of stock exchanges

Vietnam’s benchmark VN Index (VNI) has been one of the fastest growing markets in Southeast Asia so far this year. “VNI has gotten a new peak in 2016,” says Duc. “The Ho Chi Minh City Stock Exchange (HOSE) is expected to break into the top five biggest stock markets in the region by 2020, with market capitalisation of 60% of the country’s GDP and average daily trading value at $250 million. However, there were still some garbage stocks which were margin forced to sell in 2016 that were harmful to the quality of stock market.”

Dang The Duc

“Hanoi Stock Exchange (HNX) has developed the action plans for sorting stocks on the unlisted public company market (UPCoM), including selection of the best stocks break down by criteria such as size of the business, production and business situation – financial, situation governance, liquidity, etc., to put on the UPCoM premium list which is aimed towards adoption of open policy for good business groups,” adds Duc.

A merger of the HNX and HOSE, which was first announced in 2012, is expected to be completed by early 2017.

State owned enterprises equitisation

To support the development of the unlisted public company market, the Vietnamese government has put together a series of policies targeting divestment of SOEs associated with registration and listing on the stock market. It is mandatory for an equitised SOE to list the company’s shares on the stock exchange after one year, if it satisfies the listing criteria.

After the equitisation of SOEs, there will be an increased scale of listed enterprises registered for trading in the near future.

The deadline for divestment of state economic groups and state corporations from non-core sectors expired on December 31. “However, just over one-third of total investment capital were completed,” says Duc. “Therefore, the stock market will receive a boost from the country’s efforts to accelerate share sales in SOEs.”

Debt capital markets poised for growth

The trading volume in the Vietnam bond market reached $40.13 billion in the first half of 2016, an increase of 4.7% compared to 2015. Of that, 98% were government bond sales, which amounted to 22% of total GDP and is expected to increase to 40% by 2020. At $5.7 billion in 2015, the corporate bond market in Vietnam is still relatively small. “However, this is expected to grow as Vietnam plans to open its first corporate bond trading platform in early 2017 as it expects a rise in issuances of company debt,” says Duc. “The SSC has been actively implementing the corporate bond scheme to make the local corporate bond market work next year.”

“The bonds market has been nascent,” says Le. “There hasn’t been many corporate bonds since the companies have to be profitable and they need to be able to show investors that they can pay interest. Many newly established companies aren’t ready yet.”

Strengthening regulations

A number of rules have been amended to strengthen regulation around the banking and securities sector. Circular No. 07/2016/TT-BTC of the Ministry of Finance was issued in 2016 to amend 43 of the securities lending restrictions such that securities companies cannot use money and property of the company or the customer to ensure payment obligations for third parties by the securities companies.

“The government will continue restructuring banking sector, owing to the high level of bad debts, to reduce the number of local commercial banks by 2020, but these efforts will make only gradual headway,” says Duc.

The Ministry of Planning and Investment has drafted a banking restructuring plan for the 2016-2020 to:

  • continue reducing non-performing loans sustainably;
  • reduce numbers of illiquid banks;
  • reduce the lending interest rate to 5%; and
  • ensure 70% of commercial banks comply with Basel II, the second of the Basel Committee on Banking Supervision’s recommendations to set minimum capital requirements for financial institutions by 2020.

With the combination of the stock exchanges, opening up of the derivatives and bonds markets and encouragement for foreign investment, the increased availability of products and liquidity for capital markets in the emerging markets of Vietnam pose a world of opportunity for investors, both domestic and abroad.

Source: Asialaw


Hôm nay,  7/12/2016, Tiến sĩ Lê Nết  tham dự buổi Hội thảo “Managing International Arbitration with a South East Asian Dimension: A Masterclass for Arbitration” được tổ chức ở Singapore. Tại đây, Tiến sĩ Lê Nết  đại diện cho Trung tâm trọng tài quốc tế Viêt Nam (VIAC) trình bày về “Development in arbitration in Vietnam”.

Dưới đây là bản tóm tắt nội dung phần diễn thuyết của Tiến sĩ Lê Nết bằng tiếng Việt. Bạn đọc click link để theo dõi.


Luật sửa đổi, bổ sung danh mục ngành, nghề đầu tư kinh doanh có điều kiện của Luật đầu tư 2014

Trong Hội thảo “Sự thay đổi của pháp luật đầu tư kinh doanh – AmCham” ngày 30/11/2016 vừa qua, Tiến sĩ Lê Nết đã có bài trình bày rất sinh động về “Luật sửa đổi, bổ sung danh mục ngành, nghề đầu tư kinh doanh có điều kiện của Luật đầu tư 2014”. 

Nếu bỏ lỡ cơ hội tham dự buổi hội thảo vừa rồi, bạn đọc hãy click link để xem văn bản tóm tắt  phần trình bày của Tiến sĩ Lê Nết.

Conditional businesses _30112016

Sổ tay Luật sư – Chương 6: Tư vấn lĩnh vực xây dựng

Chương 6 của Sổ tay luật sư trình bày một số vấn đề pháp lý cơ bản liên quan đến việc tư vấn trong lĩnh vực xây dựng, bao gồm (i)  hợp đồng xây dựng, (ii) các rủi ro chính phát sinh trong quá trình xây dựng, (iii) quy định về hợp đồng xây dựng theo luật Việt Nam và theo FIDIC, và (iv) Giá hợp đồng xây dựng, phương thức thanh toán và hồ sơ thanh toán.

Tại chương này, một số quy định của pháp luật đã hết hiệu lực chẳng hạn như Luật Xây dựng 2003, Luật Đấu thầu 2005, Nghị định 48/2010, Nghị định 99/2007 được viện dẫn để đối chiếu với những thay đổi so với các quy định hiện tại, đặc biệt là Nghị định 37/2015 và Thông tư 09/2016 hoặc được viện dẫn để làm rõ lý do cho những thay đổi trong pháp luật hiện tại.

Phương pháp luận chủ yếu được trình bày xuyên suốt tại Chương 6 này là (i) trình bày vấn đề cần đề cập; (ii) phân tích và đánh giá; (iii) đưa ra các kết luận và kiến nghị cần thiết. Tuy nhiên tại một số tiểu mục do tính chất đặc thù, phương pháp luận này sẽ không được trình bày rõ ràng như vậy hoặc được lược bớt những phần không quan trọng.

Để đọc nội dung chi tiết của chương 6, vui lòng click link bên dưới:

Link Chuong 6: Tu van linh vuc xay dung

Luật sư Lê Nết

LNT & Partners

#LNT #vietnam #law

IFLR 1000 – Vietnam chapter

“Although Vietnam’s capital market has established more than 20 years ago, the participation of Vietnam-based law firms in the markets, both locally and internationally, is still rare.”

Dr. Net Le, Partner of LNT & Partners, has shared his opinion about current landscape for capital markets and project finance in Vietnam on IFLR 1000, Edition 2017.

If you want to learn more about the structure as well as the future of capital markets and project finance in Vietnam, please click on link below to see full article.

Link: Vietnam capital market & project finance: Its structure and future

Tài trợ học bổng cho sinh viên Luật hiếu học

Sau khi đọc bài “Năm nay Tôi sẽ đến trường” trên trang nhất Báo Tuổi trẻ 17.8.2016, Công ty Luật TNHH LNT & Thành viên (LNT & Partners) đã quyết định tài trợ toàn bộ học bổng toàn phần 4 năm Đại học cho bạn Hồ Thị Hà Giang, sinh viên khoa Luật kinh tế, Đại học Ngân Hàng, đồng thời tặng bạn cơ hội thực tập tại LNT & Partners.

Chúc bạn hoàn thành ước mơ của mình và quay lại giúp đỡ các bạn khó khăn khác khi đã thành tài.

Tham khảo:…/ho-thi-ha-giang-nam-nay-to…/1156021.html

#Donation #University #Studens #Contribution #Legal #LNT


Receiving Advance Payments from Home Buyers: Correct Interpretation and Clarification is Necessary

Law on Residential Housing stipulates that generally, developers shall not be entitled to receive any advance payments from home buyers who purchase residential houses to be developed in the future before the foundation work of the property is completed.

This provision has been interpreted by competent authroties that any amount received by developers from their home buyers prior to the completion of the foundation, shall be deemed illegal and such transactions may be invalid.

However, the business in practice is very various by nature, the developers, in some cases, expect to know how many purchases have committed to buy houses in their projects. Therefore, deposit agreement is a method to secure the housing purchase and sales contracts. The amounts received from such deposit agreements may be at the risk of being regarded as a violation of the aforementioned provision.

In reality, some developers who collected payments from their potential buyers in the form of a “deposit”, or “goodwill amount”, and etc were imposed with administrative sanctions.

Deposits or Advance Payments?

From a legal perspective, there are some aspects that need to be considered in relation to this issue as follows:

Pursuant to regulations stipulated in the Civil Code, a deposit agreement means an amount of money delivered by one party to another party as a security for its performance of the further steps of the contemplated transaction. In the mentioned case, the transaction between the developer and a home buyer is the execution of a housing purchase and sales contract. Therefore, the deposit agreement between developers and its potential buyers prior to the completion of the foundations contains the provision that potential buyers pay a deposit amount to secure their performance commitments. Such buyers shall enter into the housing purchase and sales contracts with the developers when the projects have met the required conditions; in case the buyers do not fulfill their commitments, they shall forfeit their deposits…In our opinion, such agreements is in compliance with the Civil Code regarding deposit agreements.

The Law on Residential Housing provides that developers shall not be entitled to receive an “advance payment” from the buyers prior to the completion of the foundation. This intended provision is justified in avoiding the possibility that developers do not have the sufficient financial capacity to complete the property projects, which may adversely affect the interests of buyers ultimately. This provision is intended for the protection of buyer’s interests, but how should it be interpreted correctly?

In our opinion, the fact that developers receive deposit amounts from their home buyers is not supposed that they have received “advance payment” because the two transactions are different in legal nature: one is the deposit transaction, while the other is the housing purchase transaction. Indeed, from an accounting perspective, deposit amounts cannot  be entered to the accounts as the payments from buyers, because the developers always have an obligation to return deposits (including deposit penalties as agreed) to buyers in the event of any breach of agreement by the developers. Therefore, up to this point, the developers and the potential buyers have still not conducted in house purchase transactions. If such advance payments are supposed to be payments according to housing purchase and sale contracts, such payments shall accounted as revenue of the developers.

A unified interpretation by authorities needed

Relevant competent authorities usually suppose that “receiving deposits” and “receiving advance payments” are the same, and consequently presuming that the developers have breached regulations if receiving deposit amounts, and the related transactions are likely to be canceled due to its invalidity.

The provision of Law on Residential Housing mentioned above for the purpose of protection for interests of buyers is essential and justified. However, the assurance required to enable developers (as businesses) to be advantageous in their doing business within the legal framework is also necessary.

Currently, Law on Residential Housing 2014 and Law on Real Estate Business 2014 provides quite sufficiently regulations in order to remove incapable developers. For example, Law on Real estate requires a developer’s performance of housing project must be guaranteed by a reputable bank.  And furthermore, the developers are entitled to receive advance payments from the buyers up to 50 % or 70% of the housing sale price, and etc. All of these regulations, in our view,  secure enough the interests of home buyers.

Therefore, the further expanded interpretation of competent authorities is neither consistent with the spirit of the Civil Code, nor necessary in practice. Furthermore, such interpretations may adversely affect trading transactions between parties.

It is necessary to have guidance, or a specific confirmation from the Ministry of Construction regarding the fact that developers can receive deposit amounts (prior to the completion of the foundation) is consistent with applicable laws, in order to remove the “hanging verdict” for developers due to different interpretations of the relevant authorities at the local level.

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://

The article contributed by Mr. Tran Thai Binh, LNT & Partners. Its contents do not constitute legal advice. For more information, please contact lawyers via email:

Regulations of Construction Contracts

Decree 37/2015/ND-CP dated 22 April 2015 on detailed regulations of construction contracts (“Decree 37”)

The Government issued Decree 37/2015/ND-CP dated 22 April 2015 on detailed regulations of construction contract (“Decree 37”). Decree 37 replaces Decree 48/2010/ND-CP dated 7 May 2010 on contracts in construction activities (as amended by Decree 207/2013/ND-CP dated 11 December 2013). Decree 37 will take effect on 15 June 2015.

Under Decree 37, there are many substantial changes that have been stipulated, these key changes include:

  • Supplementing some types of contracts in accordance with the nature of these contracts, and the subsequent relationships between parties and the contracts. Accordingly, with respect to their nature, contracts for supplying human resources, work machinery and equipment have been added. Depending on the relationship of the parties to the contracts, Decree 37 stipulates that construction contracts with four main contracts including a main contract, sub-contract, fixed rate contract and foreign construction contract.
  • Stipulating clearly the principles of signing contracts. The most important principle is that at the time of signing, the contractors must meet conditions for practice and performance qualification, as prescribed in the Law on Construction. This principle is aimed at making sure that the contracts are suitable for providing construction services and to limit risks associated with the quality of building construction undertaken by disqualified contractors.
  • Amendments to the rate of advances for construction contracts as follows: With respect to the consultancy contract, rates are divided in two levels, namely 20% of the contract value for a contract valued up to VND 10 billion and 15% of the contract value for a contract valued over VND 10 billion (instead of 25% of the contract value for every contract as stipulated in the previous decree).
  • Decree 37 requires the employers under construction contracts to provide payment guarantee in order to protect the rights and interests of contractors. Accordingly, the employers are responsible for proving their capabilities to perform payment obligations under the signed contract via such forms as approved by the capital arrangement plan, bank or credit organization guarantee and credit supply contract, or loan agreement with financial institutions.

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://

The New Law on Organization of People’s Court

Effective from 1 June 2015, the new Law on Organization of People’s Court (LOPC) was adopted by Vietnam‘s National Assembly on November 24, 2014. By the time the law becomes effective, its implementing Decrees and/or Circulars will also be ready.

This law aims to provide a detailed explanation for the functions, duties and powers of the people’s court. This review highlights the important changes in the hierarchical structure, duties and power of the Supreme people’s court.

1. Modification in structure of people’s court

In the past, there have been three levels of people’s court: the people’s court of rural and urban districts; capital city courts and the people’s court of the provinces and centrally run cities; and the supreme people’s court. Under the new LOPC, the structure of people’s court is divided into four adjudicating levels (LOPC: Art. 3):

  • The Supreme people’s court;
  • Superior people’s court;
  • Court of provinces and centrally-run cities; and
  • Court of rural districts, urban districts, town, provincial, cities and the equivalent.

The new LOPC has introduced a superior people’s court into the structure, which further leads to reforms to the duties and powers of other people’s court.

2. Modification in powers and duties of the Supreme people’s court and the Superior people’s court

Under the new LOPC, the Supreme people’s court consists only of the Judicial council (from 13 to 17 members including the Chief Justice, Deputy Chief Justices and other judges), assisting apparatus and training institutions. By removing the specialized and appellate court from the structure of people’s court, it is clear that the Supreme people’s court will reduce its powers over appellate trials.

There are four significant powers that have been entrusted to the Supreme people’s court (Art 20 of the new LOPC):

  • To supervise the adjudicating work of other courts;.
  • To make overall assessment of the adjudicating practices of the other courts, ensuring the uniform application of law is enforced in the conduct of trials;
  • To manage people’s courts organizationally and ensure independence of the courts from one another; and
  • To submit to the National Assembly laws and resolutions; to submit to the National Assembly Standing Committee ordinances and resolutions in accordance with the law.

Reflecting on the allocated powers of the Supreme people’s court, the cassation and reopening trial decisions of its Judicial council are of the greatest significance and importance, and come into enforcement immediately.

Furthermore, as for the appearance of the new Superior people’s court, its duties will be as follows:

  • To conduct appellate trials of cases in which the first-instance judgments, or decisions of people’s courts of provinces or centrally run cities within their territorial jurisdiction which have not yet taken legal effect, are appealed or protested against in accordance with the procedural law.
  • To conduct the trial according to cassation or reopening procedure of cases in which judgments or decisions of people’s courts of provinces, centrally run cities, rural districts, urban districts, towns, provincial cities, or the equivalent authority within their territorial jurisdiction which have taken legal effect are protested against in accordance with the procedural law.

The Court of provinces and centrally-run cities no longer have the right to conduct a trial according to cassation or reopening of a case anymore, as those duties have now been allocated to the Superior people’s court. The remaining court does not change its duties.

  • Plan to apply the new LOPC

To implement the new LOPC, the National Assembly Standing Committee (NASC) issued Resolution No.81/2014/QH13 (Resolution No.81) on implementation of LOPC on November 24, 2014. Resolution No. 81 provided further clarification for adopting the new adjudicating levels as regulated in Resolution No.81.

Until the effective date of the new LOPC, the Chief Justice of the Supreme people’s court shall prepare the organization structure, personnel and other necessary conditions for the new adjudicating levels (Art 1.1 of Resolution No.81). The Judicial council of the Supreme people’s court has to transfer its duties and power to that which is newly established, in accordance with the new LOPC (Art 2.1 of Resolution No.81).

In the Meeting on May 14, 2015, NASC decided to establish three (03) main Supreme people’s courts (in Ha Noi, Da Nang and Ho Chi Minh City) based on the current appellate courts of the Supreme people’s court. This will ensure the adaptability related to the structural organization, facilities and personnel of the new Supreme people’s court established under the new LOPC.

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://