Monthly Legal Briefing

Transcription

1 Monthly Legal Briefing Edition 1 September 2013 Banking & Finance Corporate Dispute Resolution Intellectual Property Real Estate& Infrastructure Key contact: Dr. Net Le Net.le@LNTpartners.com Mr. Huy Do Huy.do@LNTpartners.com Banking 1. Procedures for registration and change registration of foreign loans and issue of international bonds guaranteed by Government page 2 2. Sanctions for Administrative Violations in Securities and Securities Market page 2 Key contact: Ms. Quyen Hoang Quyen.hoang@LNTpartners.com Mr. Hong Bui Hong.bui@LNTpartners.com Corporate Corporate - Employment & Benefits Guidance on foreigners working in Vietnam page 4 Corporate Compliance Guidance for registration, use of commercial assessing professional stamp page 5 Corporate Tax Guidelines on self-printed invoices page 6 1

2 Banking 1. Procedures for registration and change registration of foreign loans and issue of international bonds guaranteed by Government On September 24, 2013, the State Bank issues the Circular No. 22/2013/TT- NHNN of the State Bank dated September 24, 2013 issuing procedures for registration and change registration of foreign loans and issue of international bonds guaranteed by Government. The applicable subjects are: a) Borrowers, issuers of international bonds guaranteed by Government as prescribed in Decree No. 15/2011/ND-CP dated February 16, 2011 on provision and management of Government guarantees (borrowers). b) Organizations and individuals related to execution of procedures for registration and change registration of foreign loans and issue of international bonds guaranteed by the Government. Relevant main contents a) Procedures for registration of foreign loans and issue of international bonds guaranteed by the Government; b) Procedures for registering changes to foreign loans and issue of international bonds guaranteed by the Government; c) Reporting liability of the borrower guaranteed by the Government. Changes in comparison with the current/old regulations Circular No. 09/2004/TT-NHNN dated December 21, 2004, of the State bank, guiding the foreign borrowing and repayment by enterprises: annul provisions in section I, section II, section III and section IV, Chapter III. This Circular takes effect on October 01, Sanctions for Administrative Violations in Securities and Securities Market On 23 September 2013, the Government issues the Decree No. 108/2013/ND- CP of the Government dated 23 September 2013 providing sanctions for administrative violations in securities and securities market. The applicable subjects are: a) Individuals and organizations based in Vietnam or abroad who violate laws and regulations regarding securities and securities market. b) Where an organization is sanctioned under this Decree, there must be an individual liable for the sanction, which will be reported to the State Securities Commission ( SSC ) within 30 days from the date of implementing the sanction. INCREASE IN MAXIMUM FINE 2

3 The maximum fine increases to VND 2,000,000,000 (for organizations) or to VND 1,000,000,000 (for individuals), except for the case of raising money illegally from: a) public offering without approval from SSC; b) sophisticating application for public offering; or c) non-compliance with regulations on organization of market for securities transactions. SUPPLEMENTATION TO VIOLATIONS IN THIS SECTOR: a) Violations against regulations on private stock offering by public company in Vietnam, regulations on private bond issuance in Vietnam (Section 1 Article 4); b) Violations against regulations on issuing bonds to international market, stock offering abroad, issuing new securities for the purposes of offering securities depository certificates abroad or supporting the issuance of securities depository certificates abroad based on stocks to be issued in Vietnam (Section 3 Article 7); c) Violations against regulations on additional issuance of stocks (Section 4 Article 8); d) Violations regarding administration in public company (Article 11); e) Violations against regulations on stock buyback, sale of treasury stocks (Section 6 Article 12); f) Violations against regulations on public bidding (Section 7 Article 13); g) Violations against securities listing of Vietnamese issuers at a foreign stock exchange (Article 15); h) Violations regarding business and operation of private securities investment company having self-managed capital (Article 23); i) Violations against regulations on transactions of founding shareholders, internal shareholders, internal investors of closed-end public fund, major shareholders, investors holding 5% of fund certificates or more of a closed-end public fund, personnel in charge of disclosing information, and affiliated persons (Article 27); COMPETENT AUTHORITIES FOR ENFORCING SANCTIONS: a) Chief Inspector and Head of specialized inspectorate team of SSC are authorized to impose fines up to VND 100,000,000. b) Chairman of SSC is fully authorized to impose fines up to the statutory maximum. Only the Chairman is authorized to enforce additional sanctions to violators. Changes (in comparison with previous regulations This Decree has a number of provisions removed in comparison with the repealed Decree No. 85/2010/ND-CP as follows: a) There is no statute of limitations to impose sanctions for these violations. b) There is no provision to define a period to expunge disciplinary records. c) Operation registration certificate of representative office and practicing certificate in securities practice will be deprived within a definite term in the 3

4 case of violation, which is new sanction as replacement for withdrawing licenses with indefinite period. This Decree shall take effect on 15 November 2013 For more information about the legal brief, please contact the authors: Dr. Net Le Tel: Emai: Mr. Huy Do Tel: Emai: Huy.do@LNTpartners.com Corporate - Employment & Benefits Guidance on foreigners working in Vietnam On 5 September 2013, the Government issues the Decree No. 102/2013/ND- CP of the Government dated 5 September 2013 providing guidance on foreigners working in Vietnam. Decree 102 implements a number of articles of the Labour Code on foreigners working in Vietnam Setting out more cases where foreigners working in Vietnam. Setting out cases where foreigners working in Vietnam are exempt from work permits. REPORT ON THE DEMAND OF FOREIGN EMPLOYER On an annual basis, employers (with exceptions) are now required to submit a report to the Chairman of the local People s Committee (PC) to set out their needs for expatriate employees for the year. The Chairman of the PC shall then issue an approval to each employer setting out each position which the employer is allowed to recruit. WORK PERMIT 4

5 Procedure for issuance of work permit comprises two steps: (1) Applying for confirmation that foreigners are exempt from work permits; and (2) Applying for issue of work permits. The maximum term of a work permit is 2 years, and permits can be re-issued in certain circumstances such as expiration, change of the contents of work permit. Work permits issued before the effectiveness of Decree 102 (i.e., 01 November) shall remain valid and no re-registration is required. Changes in comparison with the current/old regulations a) With respect to cases where foreigners working in Vietnam are exempt from work permits: more cases provided, such as volunteers, teachers at international schools under diplomatic mission management. b) With respect to employer s responsibility: a new report to the Chairman of the local PC provided. c) With respect to procedures for issuance of work permit: one more step provided, applying for confirming foreigners are exempt from work permits. d) With respect to expired work permit: can be re-issued (do not allow to extend as before). e) With respect to maximum term of a work permit: shorter. Further changes Repealing Decree No. 34/2008/ND-CP of the Government dated 25 March 2008 on recruitment and management of foreigners working in Vietnam; Decree No. 46/2011/ND-CP of the Government dated 17 June 2011 amending and supplementing a number of articles of Decree No. 34/2008/ND-CP of the Government dated 25 March 2008 on recruitment and management of foreigners working in Vietnam. This Decree shall take effect from 1 November 2013 Corporate Compliance Guidance for registration, use of commercial assessing professional stamp On September 3, 2013, the Ministry of Industry and Trade issues the Official Letter No. 7899/BCT-CNK of the Ministry of Industry and Trade dated 03 September 2013 providing guidance for registration, use of commercial assessing professional stamp. The applicable subjects are: a) The provincial Department of Industry and Trade; b) Business entities engaged in the provision of commercial assessment services. The provincial Department of Industry and Trade shall guide the use of professional stamps and conduct other legal procedures relating to professional 5

6 stamps in compliance with Decree No. 20/2006/NĐ-CP dated February 20, Changes in comparison with the current/old regulations Decree 120/2011/ND-CP dated December 16, 2011 amending and supplementing administrative procedures provided in a number of Decrees (comprising Decree No. 158/2006/ND-CP dated October 28, 2006 of the Government providing detailed regulations of Law on Commerce regarding purchase and sale of goods via Commodity Exchange; Decree No. 72/2006/ND-CP dated July of the Government providing detailed regulations of Law on Commerce regarding representative offices, branches of foreign business entities in Vietnam; Decree No. 35/2006/NĐ-CP dated March 3, 2006 of the Government providing detailed regulations of Law on Commerce regarding franchising; Decree No. 20/2006/ND-CP dated February 20, 2006 of the Government providing detailed regulations of Law on Commerce regarding commercial assessment service) detailing the Commercial Law: recover the registration of professional stamp which was removed by Decree 120. This Official Letter takes effect on September 3, 2013 Corporate Tax Guidelines on self-printed invoices On 4 September 2013, the General Department of Taxation issues the Official Letter No. 2887/TCT-CS of the General Department of Taxation dated 4 September 2013 on self-printed invoices. It provides for guidelines on signatures and seals on invoices which are converted from electronic invoices to paper invoices. Accordingly, pursuant to Article 12 of Circular No. 32/2011/TT-BTC guiding the preparation, issuance and use of electronic invoices for selling goods and providing services CONVERTED ELECTRONIC INVOICES TO PAPER INVOICES It is permitted to converted electronic invoices to paper invoices in order to a) prove the origin of goods during the course of circulation, which may only be conducted once b) serve the purpose of filing accounting documents and papers pursuant to the Law on Accounting; CONDITIONS FOR CONVERTING ELECTRONIC INVOICES TO PAPER INVOICES: a) Having the full contents of the original electronic invoices; b) Having a specific mark realising the conversion from electronic invoices to paper invoices; c) Having the signature and full name of person in charge of converting electronic invoices to paper invoices. 6

7 This Circular shall take effect on 4 September 2013 For more information about any of these legal briefs, please contact the authors: Ms. Quyen Hoang Tel: Emai: Quyen.hoang@LNTpartners.com Mr. Hong Bui Tel: Hong.bui@LNTpartners.com For further information, please contact: Ho Chi Minh City Office Unit 03, Level 21, Bitexco Financial Tower No.02 Hai Trieu Street, District 1 Ho Chi Minh City, VIETNAM Tel: Fax: Hanoi Office Unit 08A, Level 2, International Centre 17 Ngo Quyen St., Hoan Kiem Dist. Hanoi, VIETNAM Tel: Fax: LNT & PARTNERS is a leading full-service independently ranked local law firm in Vietnam with offices in Ho Chi Minh City, Hanoi, Hong Kong, and San Francisco. The firm is among Vietnam s most prominent, representing a wide range of multinational and domestic clients, including Fortune Global 500 companies as well as well-known Vietnamese listed companies on a variety of business and investment matters. For more information about any of these legal briefs, please contact the individual authors or your usual LNT contact. Hong Kong Office (Affiliate) Two International Finance Centre Level 19, 8 Finance Street Central, Hong Kong CHINA Tel: Fax: San Francisco Office 101 California Street Suite 2710 San Francisco, CA USA Tel: Fax: