Thứ Hai, 21 tháng 3, 2022

How Probation is Regulated in Vietnam Labour Code? | ANT Lawyers

Probation is an agreement between an employee and an employer on a probationary job in a certain period of time in accordance with the provisions of law. Before entering into a labor contract, the employer and the employee should go through a probationary period to determine the long-term cooperation and attachment between the parties. The probation should comply with the provisions of the Labor Code and relevant guiding documents. The Labor Code 2019 comes into force as of January 1st, 2020, a number of new regulations accordingly are issued in connection to the probation, which each company should review the matter with its labour lawyers in Vietnam for compliance.

Regarding the circumstances which are permitted to enter into a probationary contract, this contract is not applicable to the labor term which is below 01 month. The Labor Code 2012 does not require that the probationary provision must be stipulated in the labor contract. Accordingly, an employer and an employee may negotiate on the probation, the rights and responsibilities of the parties during the probation period. The parties may conclude a probation contract if there is an agreement on the probation. If the probation work meets the requirements, the employer shall conclude an employment contract with the employee. From these provisions, it can be understood that the employee and the employer should make a separate probationary contract. The labor contract should be signed when the probation is completed and the employee meets the recruitment requirements of the employer. According to the latest provisions in the Labor Code 2019, the employer and the employee may agree on the probation stated in the labor contract or a separate probationary contract. If the probationary provision is stipulated in the labor contract, the employer shall continue performing the existing labor contract at the end of the probationary period once the employee satisfies the requirements. Otherwise, a new labor contract shall be entered into.



The Labor Code determined the restriction of the probation period based on the nature and complexity of the job. The probationary period previously was limited to no more than 60 days for jobs requiring a college or higher professional qualification. Currently, the probationary period is permitted to extend up to 180 days for the executives. The executives play an important role in business and operation of the enterprises, including owner of a sole proprietorship, a partner of a partnership company, chairperson or member of the Board of Member, President of a company, President or member of the Board of Directors, Director/General Director, or holder of another managerial position prescribed in the company’s charter (applicable to the enterprise with no state capital)

Another amendment to the cancellation of the probationary contract, the Labor Code 2019 removed the limitation of the right to cancel. Accordingly, during the probationary period, each party has the right to cancel the probationary contract or labor contract entered into without prior notice and compensation. On the contrary, the employee and the employer may cancel the probation if the probationary job does not meet the requirements that the parties have agreed upon under the Labor Code 2012

Probationary periods are primarily designed to test out whether both employer and employee to match each other at the start of an employment relationship. The enterprises as employers need to have a clear understanding of the principles of entering into a labor contract as well as a probationary contract to avoid potential dispute in Vietnam.

Thứ Sáu, 18 tháng 3, 2022

How to Set Up Company in Hanoi? | ANT Lawyers

The Law on investment 2021 has a lot of investment incentive policies in economic sectors in Vietnam for foreign investors.

Foreign investors that invest in Vietnam in general and Hanoi in particular for the first time must have investment projects and fill in investment registration or examination procedures at state agencies in charge of investment in order to be granted Investment Registration Certificates (“IRC”) and Enterprise Registration Certificate (“ERC”). Company with 100% foreign capital has founded and operated from the date of issuance of the investment certificate.
The investor who wishes to apply for IRC in Hanoi, s/he need to have a possible project which is accepted by the Government (The Department of Planning and Investment of Hanoi City). The dossier on applying for IRC
For Investment Registration Certificate, the investor must prepare the dossier included:
i) An application form for execution of the investment project, including a commitment to incur all costs and risks if the project is not approved;
ii) A document about the investor’s legal status;
iii) Document(s) proving the financial capacity of the investor including at least one of the following documents: the investor’s financial statements for the last two years; commitment of a parent company to provide financial support; commitment of a financial institution to provide financial support; guarantee for the investor’s financial capacity; other document proving the investor’s financial capacity;
iv) Proposal for the investment project including the following main contents: investor or method of investor selection, investment objectives, investment scale, investment capital and plan for raising capital, location, duration and schedule of the investment project, information about the current use of land in the location of the project and proposed demand for land use (if any), demand for labor, proposal for investment incentives, impact and socio – economic efficiency of the project and preliminary assessment of environmental impact (if any) in accordance with regulations of law on environmental protection.
If the law on construction requires formulation of a pre-feasibility study report, the investor is entitled to submit the pre-feasibility study report instead of a proposal for the investment project.
v) If the project does not require the State to allocate or lease out land or to permit land repurposing, a copy of the document regarding the land use rights or other document identifying the right to use the location for execution of the investment project is required to be submitted;
vi) Contents of the explanation for the technology to be used in the investment project if the project requires appraisal and collection of opinions on the technology in accordance with the Law on Technology Transfer;
vii) The business cooperation contract if the investment project is executed under a business cooperation contract;
viii) Other documents relating to the investment project, and requirements on the eligibility and capacity of the investor in accordance with regulations of law (if any).
After having the project, the investor needs to apply for Enterprise Registration Certificate, the dossier included:
i) An application for enterprise registration;



ii) The enterprise’s charter;
iii) A list of members of a limited liability company with two or more members or a list of general partners;
iv) A notarized copy of identity card or valid passport of individual member;
v) A notarized copy of the Enterprise Registration Certificate of the organization’s member;
vi) A notarized copy of valid identity card or passport of the organization’s legal representative;
vii) The copy of Investment Registration Certificate.

The time for applying the investment project is 15 working days and the time for applying the company is 03 working days after the date of submitting the valid dossier.

Thứ Năm, 17 tháng 3, 2022

Forms of Foreign Investment in Vietnam | ANT Lawyers

 From 01/01/2021, the Law on Investment 2020 in Vietnam came into force. According to the Vietnam Law on Investment 2020, there are five types of foreign investment in Vietnam.

  • Investment in the establishment the economic organizations:

This type comprises two methods: Establishment of a company with 100% capital from foreign investors or establishment of a company between the domestic investors or the domestic government and foreign investors.  Before establishing the economic organizations, the investors must have the investment project, perform the procedures for issuance of the Investment Registration Certificate, satisfy the conditions on the percentage of charter capital ownership according to the Law on Securities, on equitization and transformation of state-owned enterprises, and the other conditions according to the international treaties that Vietnam signed (if any).



  • Investment in the capital contribution, purchase shares, purchase contributed capital:

Capital contribution, purchase shares, purchase contributed capital are the types of indirect investment for foreign investors through the purchase of stocks, bonds, and other valuable documents. Investors must conform to the legal provisions on capital contribution, purchase share, and purchase contributed capital.

  • Implementation investment project:

Foreign investors can sign the PPP contract. This is an investment method based on limited-term cooperation between the State and private investors through the signing of PPP contracts to attract private investors to participate in the implementation of investment PPP projects.

  • Investment under the BCC contract:

BCC contract is signed between the domestic investors according to the Civil Law. BCC contract with at least one party being a domestic investor that performs the procedures for granting the Investment Registration Certificate.

  • New forms of investment and economic organizations according to the Government’s rules.

We could assist the client to set up company in Ha Noi, Ho Chi Minh City, Da Nang or in other provinces in Vietnam.

Thứ Ba, 15 tháng 3, 2022

Policies to Attract Foreign Investment in Hanoi | ANT Lawyers | ANT Lawyers

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.

How to Determine Interest Rate for Late Payment Obligations in Commercial Transaction? | ANT Lawyers



The most important obligation of the parties to a commercial contract is to deliver or provide services and pay in full and on time as agreed. However, in reality, there are times that one party or the parties fail to perform their payment obligations, causing damages to the other party. In particular, in the case of a breach of the payment obligation, the aggrieved party may request the person having caused damage to pay late payment obligations interest. Potential dispute on this matter might arise between parties.



Article 306 of the Commercial Law 2005 provides for the application of the interest rate due to the delay of payment as follows: Where a contract-breaching party delays making payment for goods or payment of service charges and other reasonable fees, the aggrieved party may claim an interest on such delayed payment at the average interest rate applicable to overdue debts in the market at the time of payment for the delayed period, unless otherwise agreed or provided for by law.

The interest rate for late payment of obligations in commercial business is applied according to the average interest rate on overdue debts in the market at the time of payment corresponding to the late payment period, unless otherwise agreed or otherwise provided by law.

However, the Commercial Law 2005 at that time did not have a specific regulation on the average interest rate of overdue debts on the market. The Resolution No. 01/2019/NQ-HDTP has detailed instructions on this interest rate. When determining the interest on late payments, the Court shall determine the interest rate on late payments on the basis of average interest rates on overdue debts announced by at least 03 (three) commercial banks (such as Vietcombank, VietinBank, Agribank, etc.) whose headquarters, branch or transaction office is located in the same province or central-affiliated city where the headquarters of the Court in charge of the case is located at the payment date (the date of first-instance trial), except otherwise agreed upon by the parties or regulated by laws.

In case of late payment liabilities defined in a contract which includes the parties’ agreement on interest payment, the judgment debtor is liable to pay interest on the outstanding judgment debt at the agreed interest rate which must be conformable with applicable laws; if the agreed interest rate is not available, the Court shall decide application of the interest rate prescribed in Clause 2 Article 468 of the 2015 Civil Code. In case interests are charged on amounts payable to the state budget as regulated by laws, the judgment debtor is liable to pay an interest on the judgment debt arrears calculated at the interest rate prescribed in Article 357 or Article 468 of the 2015 Civil Code, unless otherwise prescribed by laws.

In order to protect the best interest of parties, it is important to consult with dispute lawyers in Vietnam for advice.

Chủ Nhật, 13 tháng 3, 2022

What Are the Order of Disciplining Employee in Vietnam? | ANT Lawyers

Labour discipline is the provisions on compliance matters relating to work time, technology and production and business management in labor regulations. It can be understood simply that when an employee violates the labor regulations, depending on the extent and regulations of the company, he or she will be subject to disciplinary action. The order of disciplining labor is conducted in accordance with the provisions of labour code in Vietnam. Failing to follow the order of discipline would lead to potential disputes which both employer and employee should consult with dispute lawyers in Vietnam for advice to protect their best interests.

Firstly, the employer must confirm the employee’s violations

In the cases where an employee found committing a violation, the employer shall issue an offence notice, inform the employee representative organization (or the employee’s parent or legal representative if the employee is under 18) in order to hold a disciplinary meeting.

Secondly, issuing notice of the disciplinary meeting

This step is only carried out in case the employer detects violations of labor discipline after the time when the violation has occurred, there are sufficient grounds to prove the fault of the employee and the statute of limitations for disciplining.

The employer sends the notice with the content, time and place of the meeting to handle the labor discipline to the organization representing the labor collective at the grassroots level; workers; In the case of a person under 18 years old, there must be the participation of a parent or legal representative.



The employer must ensure these recipients receive notice before the meeting takes place and conduct a labor discipline meeting with the participation of the notification components.

Thirdly, conducting a disciplinary meeting

It is mandatory to have the minutes of the disciplinary meeting, which have to be approved by the participants before the end of the meeting. The minutes shall bear the participants’ signatures. If any participant that refuses to sign the minutes, there should be explanation.

Fourthly, disciplinary decisions

The person that concludes the employment contract on the employer’s side also has the power to issue the disciplinary decision. The disciplinary decision shall be issued before expiration of the original or extended time limit for penalty imposition specified the labour code.

The disciplinary decision shall be sent to the employee (or his/her parent or legal representative if the employee is under 18) and the employee representative organization.
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