What Criminal Violations in Stock Exchange in Vietnam?

 Along with the increasingly diversified securities activities, the criminal violations in the stock market are also becoming more and more sophisticated and complex. The securities lawyer in Vietnam is sharing some opinions on the practice of criminal violations in stock exchange in Vietnam to avoid.

Although in Vietnam, violations and crimes committed in the securities sector still account for a small percentage compared to other fields, but these white collar crimes have directly negatively affected trading activities in the market, in particular eroding investors’ confidence, and causing the stock market distortion.

The criminal violations in the stock market could hinder the efficient functioning of the stock market which is a component of a free-market economy, where enterprises raise funds and investors invest and trade. Vietnam is a developing economy and it is getting more serious on prosecuting this crime due to the large scale negative impacts to the financial market.

There are four violations in the securities sector that are defined as crimes, which are: Provision of false information or concealment of information in securities activities; Use of internal information for trading securities; Manipulation of securities market and Forging documents in offering or listing profile as follows:

Provide false information

The law in Vietnam charges person who deliberately provides false information or conceals information in the activities of offering, listing, trading securities, market organization, registration, depositing, clearing or paying for securities. The fine for such activities will be from VND 100,000,000 to VND 2,000,000,000 or up to 02 years’ community sentence or 03 months – 5 years’ imprisonment. Punishments incurred by a corporate legal entity that commits the offenses shall be fined from VND 500,000,000 to VND 5,000,000,000; be banned from operating in certain fields or raising capital for 01 – 03 years.

How insider trading in Vietnam is treated?

Insider trading is also considered a crime in Vietnam but its seriousness has not been emphasized strongly enough as compared with other countries with developed financial market.

Over the 20 years since the stock market in Vietnam has been established, insider traders have not been found or charged yet although the law states that any person who has information about a public company or public fund which has not been published and could remarkably affect securities price of that public company or public fund but and uses such information to deal in securities or discloses it or provides it for another person for trading securities shall be liable to a fine from VND 500,000,000 to VND 2,000,000,000 or face a penalty of 07 months – 03 years’ imprisonment. Punishments incurred by a corporate legal entity that commits the offenses shall be fined from VND 1,000,000,000 to VND 10,000,000,000.

For some reasons, in Vietnam, it has been disputed that there are challenges to prove the crime in the stock market that make the practice of investigating and charging insider trading crime difficult.

Manipulation of stock market in Vietnam

Manipulation of stock market could be in the forms of fraudsters using one or more security accounts linked to each others, to set buy or sell orders in significant volume that create unusual and fake supply and demand, to lure other small investors in great quantity to make buy and sell decisions and the fraudster later benefit by exiting their shares at high price.

Or the fraudster could use pump and dump scheme to manipulate the stock market by spreading misleading information that create a buying frenzy of the stocks to “pump” prices and later “dump” their shares at inflated price.

The the fine for the individual committing the crime is ranging from VND 500,000,000 to VND 4,000,000,000 or a penalty of 06 months – 07 years’ imprisonment; the penalty for the legal entity committing the crime is a fine ranging from VND 2,000,000,000 to VND 10,000,000,000; can be permanently shut down or be banned from operating in certain fields or raising capital for 01 – 03 years depending on the severity of the violation. Recently these criminal activities have been most popular in Vietnam and a number or cases have been prosecuted.

Forging documents

Forging documents in offering or listing profile criminal is a stock market crime in Vietnam. The law states that any person who forges documents of the offering or listing profile shall be liable to a fine of from VND 500,000,000 to VND 2,000,000,000 or face a penalty of 06 months – 07 years’ imprisonment. In addition, the offender might also be liable to a fine of from VND 50,000,000 to VND 250,000,000, be prohibited from holding certain positions because of such criminal record in Vietnam or doing certain works in related fields for 01 – 05 years.

Securities lawyer in Vietnam to distinguish signs of criminal behaviour or administrative violations

There are also disputes among law makers, legal experts and lawyers in Vietnam on whether there are criminal violations or not; or wherether there are administrative violations, or economic or civil violations for acts that could have signs of criminal behaviours. These kinds of arguments are important to help the society to find balance and defend justice in the development of economy and stabilization of the financial market in Vietnam.

Nguồn:https://antlawyers.vn/library/what-criminal-violations-in-stock-exchange-in-vietnam.html

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How to Make a Joint Will of Husband and Wife under Vietnam Laws?

 How a will lawyer in Vietnam could help?

Under Vietnam culture, marriage is a special relationship that is not considered as a contract. Hence it could become a delicate matter when material comes into play. And talking about death while still living might trigger emotional reaction especially the concerning matters could arise is how to make a will for the assets owned by husband and wife.

We have come across such situations and as a will lawyer in Vietnam, we could help the potential client to understand the need to have a will and have the estate planning. But to get a will and statement service in Vietnam for a joint will or separate will could also be a question. The following will discuss the matter in details.

In fact, a few spouses desire to make joint will to dispose of their common assets. The prevailing law does not yet stipulate joint testament of husband and wife. Hence how to proceed with the application of law for the cases where husband and wife intend to make joint testament?

Legal grounds for joint will and statement in Vietnam

In the legal document system, the “joint testament of husband and wife” was most recently stipulated in the Civil Code 2005, which has now been superseded by the Civil Code 2015. Accordingly, it can be understood that: a joint testament of husband and wife is an expression of the will of the spouses intending to transfer the common assets of the spouses to another person after the death of both husband and wife. With regard to joint testament of husband and wife, the Civil Code 2005 devotes three articles stipulating particulars of this type of testament including concept; amendment, supplementation, replacement, cancellation; legal effect.

Under the abovementioned understanding, after the Civil Code 2005 expires, among prevailing legal documents, especially the Civil Code 2015 directly regulating inheritance and testament by its sphere, there is no provision on “joint testament of husband and wife”. Thus, the joint testament of husband and wife is not recognized but also not prohibited by the law.

Therefore, it is possible to apply the law for cases where spouses intend to make “joint testament of husband and wife by the understanding of the Civil Code 2005” after the Civil Code 2005 is no longer valid as follows:

Joint testament of husband and wife as a type of testament

According to the basic principles of civil law, individuals shall establish, perform and terminate their civil rights and obligations on the basis of free, voluntary undertaking, agreement; any undertaking or agreement which does not violate a prohibition of law or is not contrary to social morals shall be binding on the parties and be respected by other subjects; the establishment, performance and termination of civil rights and obligations may not infringe upon national or ethnic interest, public interest, or legitimate rights and interest of other people.

Accordingly, husband and wife are completely free to agree on the making of a testament that expresses the joint will of both husband and wife towards common assets but must comply with the law on testament.

As such, to be protected as a legitimate testament and as a legitimate testament under Civil Code 2015, apart from general regulations on testament, the joint will of husband and wife shall comply with following regulations:

Firstly, to be a legitimate testament:

First, common will shall first be a testament as provided by law, which is for the purpose of transferring the common assets of husband and wife to other people after the death of both husband and wife.

Second, the testament shall satisfy the criteria of legitimate testament, including: i) the testator was of sound mind when he/she made the testament; and he/she was not deceived, threatened or coerced; ii) the contents of the testament do not contravene the prohibition of law or contrary to social morals; the testament shall be made in writing, it may be made orally if it is unable to be made in writing.

The testament of the incapacitated or the illiterate shall be made in writing notarized or certified by a witness. A written testament which is not notarized or certified shall be deemed lawful only if the testator is of sound mind when he/she made the testament; and he/she was not deceived, threatened, coerced; contents of the testament does not breach the prohibition of law, not contrary to social morals; formality of the testament complies with the law.

An oral testament shall be deemed lawful only if the testator orally expressed his or her last wishes before at least two witnesses who recorded those wishes in writing and signed or fingerprinted the document immediately after the testator orally expressed his or her last wishes. Such testament must be certified by a notary public officer or an authorized agency, verifying signatures or fingerprints of the witnesses within five working days of the of expressing the last wishes.

Secondly, to amend, supplement, supersede, cancel:

Testators may amend, supplement, supersede or cancel the testament at any time, as a result, spouses may amend, supplement, supersede, cancel the made testament at any time upon mutual agreement.

Thirdly, the time of effectiveness:

The testament shall come into effect as of opening the inheritance. On the other hand, the time of opening the inheritance shall be the time when the testator dies. Therefore, the time of effectiveness of the joint testament shall be from when both husband and wife die.

Joint testament of husband and wife as a conditional contract.

Also based on the free, voluntary undertaking, agreement of civil law subjects, husband and wife have right to make a civil contract agreeing on the disposal of common assets that may occurring rights and obligations of the third person; meanwhile, defining the specified event where both husband and wife die as the time of commence of the contract and it is not obliged for the contract to be implemented by spouses themself. As such, to be protected and as protected as a civil contract, the joint testament of husband of wife shall comply with civil contract law.

Firstly, to be the conditional contract as provided by law:

As a civil contract, the joint testament of husband and wife shall be the agreement between husband and wife on occurrence, modification, or termination of rights, obligations to the common assets of husband and wife.

Hereunder rights and obligations may occur to the third person, must not be performed by husband and wife themselves. Not an ordinary civil contract, the joint testament of husband and wife is a conditional contract under whereby the performance depends on the occurrence, modification, or termination of a certain event. Thus, in this contract, husband and wife will agree on the time of division of the common assets.

Secondly, to amend, supplement, supersede, terminate, cancel:

As provided by contract law, husband and wife may negotiate to amend, supplement the joint testament. Spouses may also agree on replacing the made joint testament by a new joint testament after terminating the made joint testament or completely terminating the joint testament in accordance with regulations on contract termination. The notable point of cancelation, termination of the joint testament as a contract is the fact that husband and wife may unilaterally cancel, terminate in accordance with law.

Thirdly, the time of effectiveness:

Not as a testament, stated contract may take effect as of the time of entering contract or the time upon mutually agreed, nevertheless, the effectiveness of the contract is inherently not critical as the establishment, change, and termination of common assets.

For that reason, it is understood that the contract shall take effect from the time as mutually agreed by both husband and wife, otherwise as the time of entering contract. Despite that, apart from the effectiveness of the contract, spouses must also concur on the time of division of the common assets. It is noteworthy that for the purpose of division of the bequests, the abovementioned time shall not fall in the time when it is stated to divide the common assets of husband and wife during the marriage period as prescribed by law on marriage and family.

Application of law to resolve matters relating husband and wife joint testament

Not provided by law, in cases where spouses desire to make joint testament but it is neither applicable for by abovementioned provisions nor agreed upon by the parties, customs can be applied but the customs must not contravene the basic principles of civil law.

If practices are unavailable, provisions of the law governing analogous civil relations shall be applied. Where analogous law cannot be applied, the basic principles of civil law, case law or equity shall be applied.

In short, because the law leaves open joint testaments of husband and wife, thus, husband and wife who have the will to execute a joint testament shall freely agree in the form of a testament or conditional according to the corresponding provisions. For related issues that are not reached with an agreement, customary practices, analogy of law, basic principles of civil law, case law, and equity shall be sequentially applied to resolve. The individuals are recommended to consult with a will lawyer in Vietnam to help with will and statement service in Vietnam under Vietnam laws.

Nguồn:https://antlawyers.vn/will-lawyer-in-vietnam/how-to-make-a-joint-will-of-husband-and-wife-under-vietnam-laws.html

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How Dispute Settlement Mechanism of ASEAN Work?

 As economic cooperation has expanded, having an effective mechanism to resolve disputes arising between member countries has become an essential need. Therefore, since 1996, ASEAN has started drafting a Protocol on Dispute Settlement Mechanism, and this Protocol was signed by ASEAN Economic Ministers on November 20, 1996 in Manila (Philippines).

The dispute settlement mechanism of ASEAN is built on the spirit of negotiation and mediation. At any time, Member States which are parties to the dispute have the right to choose forms of mediation. These forms may begin or end at any time. Only when the procedure for mediation has ended, the complainant proceeded to bring the matter to the Senior Economic Officials Meeting of ASEAN (SEOM). While the dispute is in progress, if the parties to the dispute agree, mediation procedures will continue to apply.

If the consultation does not resolve the dispute within sixty (60) days of the receipt of the request, the matter will be referred to SEOM. SEOM will set up a panel or, if possible, refer the matter to the special rules and procedures team or additional for review. However, in specific cases, if deemed necessary, SEOM may decide to resolve the dispute amicably without having to appoint a panel.

SEOM will review the panel report during its discussion and give a decision to the dispute within thirty (30) days from the date the panel submitted the report. In exceptional cases, SEOM may have an additional ten (10) days in adjudicating a dispute. SEOM representatives of Member States who are parties to the dispute may be present during the discussion but may not participate in judgments of SEOM. SEOM will adjudge on a majority basis.

Member States that are parties to the dispute may appeal the judgments of SEOM to the ASEAN Economic Ministers (“AEM”) within thirty (30) days. AEM must make a decision within thirty (30) days of the appeal. In exceptional cases, AEM may have an additional ten (10) days to make a decision on dispute resolution.

Nguồn: https://antlawyers.vn/library/how-dispute-settlement-mechanism-of-asean-work.html

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Questionnaire in Anti-dumping Measures on Welding Materials From China, Thailand and Malaysia (AD15)

 On March 18th, 2021, Ministry of Industry and Trade issued Decision no. 947/QD-BCT on conducting an investigation to apply anti-dumping measure on some types of welding materials with HS code 7217.10.10; 7217.30.19; 7217.90.10; 7229.20.00; 7229.90.20; 7229.90.99; 8311.10.10; 8311.10.90; 8311.30.91; 8311.30.99; 8311.90.00 originating from People’s Republic of China (China), Kingdom of Thailand (Thailand) and Malaysia (Product under investigation) (code AD15).

In AD15 case, Trade Remedies Authority of Vietnam (Investigating Authority) has sent questionnaire on quality and value to all foreign manufacturing/exporting enterprises which Investigating Authority knows in order for them to answer investigating questionnaire. The deadline for answering the questionnaire is before 5pm of April 19th 2021 (Hanoi time).

Content of this Questionnaire includes:

-General information: Company details; Legal representative

-Product under investigation: Scope of the investigation; Description of product under investigation

-Information of quantity and value: Production and business activities of company in regard to product under investigation; Affiliate companies; Production capacity and total volume of product under investigation of the company and its affiliates during the POI period; Total sales volume and total value of sales revenue from the Company’s product under investigation during the investigation period; Net sales of the Company, excluding taxes and discounts

-Other information.

Regarding domestic producers and importing enterprises, the Investigating Authority has issued the investigating questionnaire in order to collect information, figures for this case. The deadline for answering the questionnaire is before 5pm of May 07th 2021 (Hanoi time).

Content of the Questionnaire for domestic producers includes:

-General information of company: Company; Individuals and organizations that control the activities of the Company; Legal representative; Operational links with other companies or persons in production – business activities; Other product; Accounting/financial practices

-Domestically produced like product: Description; Product Control Number PCN; Company Control Number CCN; Technical description and production process of the like product

-Production, purchases and stocks: Production and production capacity; Purchases of the like product or product under investigation; Stocks of finished product;

-Sales: Total sales of the product under investigation produced by company; Resales; Internal use

-Distribution system and selling prices: Distribution system and channels of sale; Price setting for the like product

-Transaction by transaction listing: Sales transactions in Vietnam during POI; Explanation of the apportionment of costs to transactions; Credit notes

-Cost of production: Cost accounting system; Production process; Cost of production; Different levels of purity; Suppliers of direct materials

-Profitability: Profitability of the like product during investigation period; Profitability of the overall company; Profit in the absence of injurious dumping ; Cash flow for the like product; Investments; Ability to raise capital; Return on investment (ROI) and assets (ROA)

-Employment and wages: Employment; Labor cost

-Other questions

Content of the Questionnaire for importing enterprises includes:

-General information of company: Company; Individuals and organizations that control the activities of the Company; Legal representative; Operational links with other companies or persons in production – business activities; Other product; Accounting/financial practices

-Imported product under investigation: Description; Details of the imported product; Product comparison

-Production, purchases and stocks: General information of sales; Purchase of product under investigation; Product under investigation originated from China and/or Thailand and/or Malaysia; Stocks

-Sales: Introduction

-Profitability: Profitability; Price setting

-Other questions

Our international trade and competition lawyers at ANT Lawyers – a law firm in Vietnam will always follow the development from authorities to provide update to our clients.

Nguồn:https://antlawyers.vn/library/questionnaire-in-anti-dumping-measures-on-welding-materials-from-china-thailand-and-malaysia-ad15.html

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Differences Between Limited Liability Company and Joint Stock Company

 How to distinguish a Limited Liability Company and Joint Stock Company?

Vietnam Law allows the establishment company in Vietnam in various forms. It is an important step in investment process.

Investors could choose different forms depending on the needs and capacity on the ability to raise capital and sharing the risk in business as well as the management and operating costs. Each form will have its own organizational structure, operating mechanism, rights and obligations specified under Law on Enterprise 2014.

Currently, Limited Liability Company (“LTD”) and Joint Stock Company (“JSC”) are two popular enterprise forms operating in Vietnam.

What is the difference between these two forms of companies?

I. Organizational Structure

Number of members/shareholders:

LTD

-Single member LTD: Having only one member (member can be an organization or an individual);

-Multi members LTD: Having at least 2 members and not exceed 50 members (member can be an organization or an individual).

JSC

Joint Stock Company has at least 3 shareholders and not limit the maximum number.

Management structure

LTD

-Single member LTD

Single member LTD owner by an organization shall be organized under two models: Company president, Director/General director and Supervisor; (OR) Members Council, Director/General director and Supervisor.

Single member LTD owner by an individual shall be organized as follows: Company president, Director/General director.

-Multi members LTD

Multi members shall be organized by: LTD Council members, Chairman of the Members Council and Director/General director;

Multi members LTD having 11 members or more shall establish the Board of Supervisors.

JSC

JSC can be organized under two models: General Meeting of Shareholders, Board of Directors, Board of Supervisors and Director/General director; (OR) General Meeting of Shareholders, Board of Directors (Board of Internal Supervisors under Board of Directors) and Director/General director.

II. Capital Contribution

Raising capital

LTD

-Single member LTD: Owner increases charter capital

-Multi members LTD: Members increase their charter capital, or increasing the number of capital contributors

JSC

Different from LTD, JSC can raise its capital by various methods as follows: Selling shares to existing shareholders; Selling shares individually to non-shareholders; Issuing shares on the stock market.

Transfer of contributed capital

LTD

-Single member LTD: Owner transfers a part of contributed capital to other persons and this could lead to changes of the type of business or other procedures if all capital is transferred (for instance in a M&A deal).

-Multi members LTD: Offer the stakes to other members in proportion to their stakes in the company under the same conditions; The stakes could only be transferred to other persons if the members do not buy or do not buy completely within 30 days from the offering date.

JSC

The shareholders of JSC are free for transfer their contributed capital after 03 years from the establishment.

Having said that, LTD is a type of enterprise that the capital contribution is not the only link between the members of the company but they are also linked together by relationship. They may be acquaintances and trust each other to jointly contribute capital to establish an enterprise. Therefore, the management of the LTD is as complicated as JSC. With the larger the number of shareholders, the level of capital mobilization, voting power to decide on issues of the company based on the ratio of capital contribution of each shareholder, the management and operation of the JSC is more complex.

The ability to raise capital of a JSC is higher than a LTD. Because, JSC can issue shares to the public in the form of securities. When the stocks are listed on stock exchange, the information of company’s business operations must be public and more transparent.

The procedure to set up a company in form of an LTD or a JSC has not much differences.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

Nguồn:https://antlawyers.vn/library/distinguish-a-limited-liability-company-and-a-joint-stock-company-in-vietnam.html

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Policies to Attract Foreign Investment in Hanoi

 Over the years, Hanoi city has organized quality conferences of foreign investment attraction, focusing on implementing measures to attract transnational corporations engaged in investment and business in Hanoi.

To perform domestic and international cooperation activities on investment promotion. Hanoi is constantly promoting and improving the efficiency of investment promotion activities, creating a reasonable and effective connection between domestic and foreign investment promotion activities in Hanoi in all fields, economic sectors; connecting investment promotion activities with trade promotion, tourism, and other related activities.

In addition, Hanoi has issued the preferential policies according to priority development groups in each locality based on the advantages and potentials of each locality; innovating the implementation method to well perform the works of attracting, calling and directing foreign investment; renovating mechanisms and policies to attract maximum financial resources from all economic sectors, especially mobilize idle capital from the population to develop production and business.

Hanoi is one of the cities that has favorable business conditions for high technology investors. The improvement of the business environment has greatly contributed to attracting domestic enterprises, foreign enterprises, and corporations to invest in industrial areas in Hanoi. Hanoi not only focuses on developing preferential policies for investors but also promotes the completion of industrial areas, especially high-tech parks. Many FDI enterprises and corporations investing in Hanoi appreciate the improvement of the business environment of Vietnam in general and Hanoi in particular. So the FDI corporations have affirmed that they will choose Hanoi as a place to expand their investment and business in the coming years, especially in the high-tech field.

According to the government in Hanoi, in recent years, Hanoi has become a center of attracting FDI of Vietnam. Currently, this city has more than 6,300 valid FDI projects with a total registered capital is more than 46,8 billion USD. In 2020, despite the Covid-19 epidemic influence, Hanoi still has attracted 4 billion USD of FDI capital and 145,000 billion of domestic capital.

Based on the attracting FDI schedule, from 2021 to 2025, Hanoi will attract 30-40 billion USD of foreign investment capital, in which 20-30 billion USD of disbursed capital. To achieve this goal, Hanoi will promote the investment attraction, focus on the investment in economic infrastructure development, developing the high-tech parks, industrial areas, industrial clusters according to planning, making the investment attraction lists for regions, fields, and products, selecting the investment for the projects using high technology which help the investors could make the investment in the city in an easy way.

Nguồn: https://antlawyers.vn/library/policies-to-attract-foreign-investment-in-hanoi.html

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How to Legalize Birth Certificate in Vietnam?

  How to Legalize Birth Certificate in Vietnam?

Legalize birth certificate is the authentication of signature and stamp on the birth certificate issued by the foreign country or organization in order for that document to be recognized and used in Vietnam.

In principle, the Vietnam State authorities only accept considering birth certificate that has been legalized, unless the law of Vietnam and international treaties in which Vietnam has signed or participated has other provisions.

In the trend of integration and development, Vietnam has expanded exchanges with all countries in the world. Therefore, the demand for legalize birth certificate is inevitable. ANT Lawyers is honored to provide the service to legalize birth certificate, evaluating the legitimacy of the birth certificate and on behalf of institutions and individuals to perform the procedure at the state agencies with the most reasonable cost.

The process to legalize birth certificate includes:

Step 1: Receipt of birth certificate record from client and conduct the document translation;

Step 2: Get the judicial stamp for the translation of birth certificate

Step 3: Get legalized stamp for the birth certificate

Step 4: Get the stamps of embassies, consulates for birth certificate

Step 5: Return the legalized birth certificate record to customer

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Law firm in Hanoi, Law firm in Ho Chi Minh and Law firm in Danang. 

Nguồn: https://antlawyers.vn/legal-service/how-to-legalize-birth-certificate-in-vietnam.html

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