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A contract for the international sale of goods is only recognized as valid if it is expressed in a certain form, by the provisions of applicable law. What conditions on the forms of contracts for the international sale of goods can make the contracts valid? In this article, Apolo Lawyers - Solicitors & Litigators (Tel: (+84) 903.419.479) will answer these questions.

The form of a contract is the outward expression of the contract content, including the synthesis of forms, procedures and means to express and announce the will of the parties, record the contract contents and represent the indicates the existence of the contract. 

1. General provisions on international goods sale and purchase contracts

A contract for the international sale of goods is only recognized as valid if it is expressed in a certain form, by the provisions of applicable law. This is a mandatory condition to prove the existence of the contract.

International sales contracts can be governed by international treaties, national laws or international commercial practices. To determine the law applicable to the form of international sale of goods, the laws of countries mainly apply the principle of “locus regit actum”.

2. Provisions of international treaties on contracts for the international sale of goods

Unlike the provisions in the laws of other countries, as well as the mutual legal assistance agreements that Vietnam has signed with other countries, the United Nations Convention on Contracts for the International Sale of Goods, 1980 (CISG) Article 11 “A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses”. However, the CISG also allows States to reserve the right not to apply this Article 11, according to which contracts for the international sale of goods are required to comply with certain formal conditions of international law. The new country is recognized in force.

According to the 2010 PICC, paragraph 2 of Article 1 provides that a contract can be proved “including by witness”. Paragraph 2, Article 9 of the 1980 Rome Convention on the Law Applicable to Contractual Obligations provides that in the case of the parties entering into a contract in different countries, the contract is still valid if it satisfies the condition of formality of the law governing the contract of one of these countries. Thus, the provisions in these documents are quite open to most widely recognizing the conditions of validity of the contract.

>>> Read more: Time of risk transfer in the international contract for the sale of goods in Incoterms 2020

Conditions on the forms of contracts for the international sale of goods​

3. Regulations of Vietnamese law on international goods sale and purchase contracts

To determine the validity of a contract, Vietnamese law in Clause 7, Article 683 of the Civil Code 2015 provides that “Form of a contract shall be determined by the law applied to such type of contract. In the case where the form of a contract does not comply with the form of the law applied to such contract but complies with the form of the law of the country where the contract is entered into or the law of Vietnam, such form of contract shall be recognized in Vietnam”.

Thus, the provisions of Vietnamese law are consistent with the provisions of the Mutual Legal Assistance Agreement that Vietnam has signed with other countries, similar to the provisions of the Nordic countries, Western Europe and the United States. With the above-mentioned general principles, it can be seen that Vietnamese law does not allow subjects to choose the law to regulate the form of a contract.

Thus, if Vietnam joins the United Nations Convention On Contracts For The International Sale Of Goods 1980, Vietnam is entitled to reserve, not apply Article 11 of this Convention, because Vietnamese law contracts for the international sale of goods must be signed in writing.

>>> Read more: Legal service on Penalties For Breach Of Contract

Conditions on the forms of contracts for the international sale of goods​

4. Legal service about the commercial contract of Apolo Lawyers. 

Apolo Lawyers is confident in providing Clients with optimal and effective legal service,  including the following:

Consulting on the right and obligation of the parties in the contract sale of goods;

Consulting to determine the basis for dispute settlement and legal basis for dispute settlement;

Consulting, and preparing to contact and negotiate with related parties in the settlement of international contract sale of goods disputes;

Guide customers to collect documents and evidence, and provide information;

Authorized representative lawyers meet and discuss with Arbitration, Courts, and judgment enforcement agencies to protect the legitimate rights and obligations of clients.

>>> Read more: Dispute settlement of goods sale contract by commercial arbitration in Vietnam

Apolo Lawyers is proud to be a law firm with many years of experience in business consulting that will support clients in the field of commercial contracts. In case you need advice related to a commercial contract, please contact us via email at [email protected] or Hotline – (+84) 903 419 479 for the best advice and support.

A contract for the sale of goods, also known as a commercial contract, is one of the most common types of contract in daily life. The performance of the contract is according to the contractual agreement between the parties when entering into each other. However, in the process of performing, it is quite common for one party to deliver the goods not according to the agreement. So what responsibility does the party that fails to deliver on time have to take?  Apolo Lawyers - Solicitors & Litigators (Tel: (+84) 903.419.479) will help you determine the responsibility in this case.

Contract penalty due to delay in delivery is one of the sanctions of the contractual relationship. Contractual penalties are applied when both parties have an agreement on the contract. As follows:

1. Obligations about the delivery time by Vietnamese law

According to the provisions of Article 37 of the Commercial Law 2005, the seller must deliver the goods at the time of delivery as agreed in the contract.

2. Forced the correct performance of the contract

The contract performance process cannot avoid errors such as late delivery, missing delivery, violation of the terms of quantity and quality of goods, technical requirements of the work, and incorrect provision of services contract, etc. The aggrieved party has the right to require the infringing party to deliver the goods in full, in the right quantity and quality, and to provide services as agreed upon in the contract; the aggrieved party has the right to require the infringing party to eliminate the defects of the goods, to deliver the goods in full or to deliver the goods instead.

The compulsory performance of a contract is specified in Clause 1, Article 358 of the Civil Code 2015, specifically: “Where an obligor fails to perform an act which it must perform, the obligee has the right to request the obligor to perform the act, or the obligee may perform the act or assign the performance of the act to another person and require the obligor pay reasonable expenses incurred and compensate for any damage".

>>> Read more: Note of signing a contract for the international sale of goods

Liability for compensation on late delivery

3. Liability when violating delivery time

In a commercial contract, the parties will agree with each other on the rights and obligations of the contract as well as when breaching the contract the responsibility between the parties. In case the parties do not stipulate the penalty for breach of contract, the penalty for this violation will be implemented by the provisions of law.

When violating the delivery time limit, delivering goods on time but not falling into one of the cases of liability exclusion mentioned above, the violating party will be responsible for fines for violations according to the provisions of Article 300 of the Commercial Law 2005. Penalty for breach is the fact that the aggrieved party requests the violating party to pay a fine for breach of contract if so agreed in the contract, except for the cases of liability exemption specified in Article 294 of this Law.

4. Penalties for violations and compensation for damage when one party violates the delivery time

According to the provisions of Article 301 of the Commercial Law 2005, the fine level for a breach of a contractual obligation or the aggregate fine level for more than one breach shall be agreed upon in the contract by the parties but must not exceed 8% of the value of the breached contractual obligation portion.

In addition to the penalty for breach, the breaching party also has to pay compensation for the damage caused by the breaching party to the breached party. Compensation value includes the value of the actual, direct loss suffered by the aggrieved party caused by the violating party and the direct benefits that the aggrieved party would have been entitled to if there were no acts of violation according to the provisions of Clause 2, Article 302 of the Commercial Law 2005.

>>> Read more: Difference between cancellation of contract and invalidation of contract

Liability for compensation on late delivery​

5. Consulting services for drafting contracts for lawyers

When consulting a contract, a lawyer not only considers the interests of the parties in the contract but also has to anticipate the risks that will occur in the future.

With a team of lawyers who are knowledgeable in business and commercial law and have a lot of practical experience in the business activities of enterprises, Apolo Lawyers will provide comprehensive support to clients in consulting and drafting contracts for clients in the process of negotiating, signing and performing business contracts. The scope of work of Apollo Lawyers includes:

Consult the provisions of the law and the application in practice related to the terms in all kinds of contracts of enterprises;

Drafting the contract based on the requirements of the enterprise and by the law, ensuring maximum benefits for the customer and balancing the interests of the parties in the contract;

Appoint a lawyer to advise and join the business in the process of negotiating contracts with partners.

Legal assessment of the contents of the draft contract of the enterprise with its partners according to the requirements of the enterprise and according to the provisions of law;

Check the content, review and edit the contract offered by the partner;

Drafting necessary contract terms, negotiating with partners to protect important terms and ensuring the legal rights of enterprises.

Thus, for the enterprise not to suffer disadvantages, as well as to limit the risks that may occur when performing the contract, especially the liability for compensation and fines for violations in the contract, the enterprise needs to be consulted by a lawyer before signing with partners. If you have any questions, please contact us via email at [email protected] or Hotline (+84) 903 419 479.

When signing a contract for the sale of goods, both parties want to be the ones to gain the most benefits in the transaction. However, many entrepreneurs fall into the profit trap and forget about the outstanding risks in contracts for the sale of goods. In fact, there are many risks in entering into contracts for the sale of goods. This article below by Apolo Lawyers (Hotline: (+84) 903.419.479) will provide our clients with the above information.

When entering a contract for the sale of goods, there are some common contract risks as follows:

1. The subject of the contract:

In fact, two contract risks about the subject when signing a contract are often mentioned:

The signer does not have the authority to sign. That is, that person is not a legal representative or a legal representative but does not have the authority to sign.

A person who is not the legal representative of the company, has legal authorization but signs contracts beyond the scope of authorization.

Contracts signed by unauthorized persons in principle will be void. Depending on the specific case, it will be completely or partially disabled. Therefore, in order to avoid unexpected situations that may occur, when signing a contract, it is necessary to check the Business Registration Certificate to see who is the legal representative, whether or not has the authority to sign the contract for the sale of goods; request to provide the Authorization Letter to the employee when transacting or checking the scope of authorization of the person preparing to sign.

2. The object of the contract

The parties to the contract often dispute about the goods are not the right object as agreed, the quality of the goods is not right or the quantity is not enough as in the agreed contract for the sale of goods. There are also many cases where the parties take advantage of loopholes in non-specific and easily misunderstood details in the contract to evade the performance of obligations. Therefore, when signing a contract for the sale of goods, it is necessary to study the terms of the contract carefully, detailing the subject matter of the contract, the quality of the goods, the quantity, and weight; at the same time, agree on how to understand the terms of the contract to avoid talking at cross purposes when concluding the contract.

3. The price and payment method

Although it has been agreed, there are some risks such as price when the market fluctuates, currency as a payment method, disputes over loading and unloading costs, transportation and storage, money delivery and delivery methods, and security methods. Contracts by the method of guarantee still frequently occur when concluding a contract for the sale of goods. Therefore, the parties need to come up with detailed, specific, and flexible terms to suit each transaction.

4. Risk of penalties for violation

A penalty for a violation is an agreement of the parties, so one party cannot ask the other party to pay a penalty for a violation if the parties do not agree to the contract. Although it is an agreement between the parties, the Commercial Law 2005 limits the maximum penalty for breach of contractual obligations or the total fine for multiple violations as agreed by the parties in the contract to no more than 8 % value of the breached contractual obligation. Any excess in the penalty agreement will be considered a violation of the law and will be void.

5. The compensation in the contract

There is a difference between penalty and compensation, the liability for compensation arises in case there is no agreement about it in the contract. There are three conditions for the arising of compensation:

There is a breach of contract

Has actual damage occurred

There is a cause-and-effect relationship between the breach of contract and the damage caused

6. About the Force Majeure Clause

A force majeure clause is an event that occurs objectively, cannot be foreseen, and cannot be remedied even though all necessary and permissible measures have been applied. In some cases, because of force majeure clauses, if the obligor is unable to perform a civil obligation, he or she is not liable for civil liability, unless otherwise agreed upon or otherwise provided for by law. However, according to the provisions of the Commercial Law 2005, the violating party must prove the force majeure event in order to be exempted.

>>> Read more: Drafting a contract for the sale of goods

>>> Read more: Procedure for signing contracts for the international sale of goods

There is an overview of the risks in entering a contract for the sale of goods. Apolo Lawyers is proud to be a law firm with many years of experience in business consulting that will support clients with commercial contracts in general and contracts for the sale of goods in particular. In case you need advice related to commercial contracts, please contact us via email at [email protected] or Hotline - +84 903 419 479 for the best advice and support.

As a result of the development of the economy, the purchase and sale activities are not only developed in Vietnam but also develop in the world. International transactions are increasing day by day in the form of contracts for the international sale of goods. So, what is a contract for the international sale of goods, and what is the procedure for signing contracts for the international sale of goods? The below article by Apolo Lawyers (Hotline: +84.903.419.479) will help our clients answer these questions.

Besides the national law such as Commercial law 2005, CISG is the rule that usually is used to stipulate the contracts for the international sale of goods in Vietnam.

1. What is a contract for the international sale of goods?

Article 3, Commercial law 2005 stipulates that a contract for the sale of goods is commercial activity whereby the seller is obliged to deliver goods, transfer ownership of goods to the purchaser and receive payment; the purchaser is obliged to pay the seller and receive goods and the ownership thereof as agreed.

However, different from a contract for the sale of goods, contracts for the international sale of goods have an international element. According to CISG, an international element refers to the address of the head office of the parties in the international contract. The head office of parties must be in different countries. Therefore, we can understand that contracts for the international sale of goods mean the agreement has international elements, in this, the seller has obligations to deliver goods and the ownership of the goods to the buyer, and the buyer has the obligation to make payments and receive goods.

2. The features of contracts for the international sale of goods

The international element is the key point that builds the features of contracts for the international sale of goods. In general, contracts for the international sale of goods have the following features:

The subject of contracts for the international sale of goods is the parties whose place of business is located in different countries.

Goods that are the subject of contracts for the international sale of goods are goods that can be transported across the border of a country, that is, can be moved from one country to another, or can be moved from an export processing zone….

The currency used for payment between two parties, the buyer and the seller, can be a foreign currency for either party.

Disputes arising between the parties surrounding the conclusion and performance of the contract may be adjudicated by a court of a country or by a competent arbitration institution.

The law governing contracts (law applicable to contracts) is complex and diverse: if it is a domestic contract, it is only governed by the law of that country, and if it is a contract for the international sale of goods, it may be necessary to apply foreign laws, international custom or treaties and even case precedents.

3. Procedure for signing contracts for the international sale of goods

Because this is a contract for the international sale of goods, not in every case the parties in the contract can meet directly and discuss the contract.

For contracts for the international sale of goods signed between people who can meet directly, the signing of the contract usually takes place simply, based on direct negotiations between the parties. If the parties fully agree on the issues raised during direct negotiation and jointly sign the draft contract, the contract is considered signed from the time the parties sign the contract. At this time, the date and place of signing the contract are determined by the date and place of the signing of the contract by the parties.

For contracts for the international sale of goods signed between people who are far away from each other, without direct negotiation conditions, the contract is signed by sending or exchanging proposals for contract signing (sending offers or placing orders); and accepting the conclusion of the contract (accepting an offer or accepting an order). These contracts typically go through two stages:

The stage of requesting the conclusion of a contract, at this stage, the person requesting to sign the contract must be in compliance with a number of provisions of the law such as the validity conditions of the application for contract signing; the validity period of the offer to sign the contract and the conditions for unilaterally declaring the cancellation of the offer to sign the contract take effect.

The stage of accepting the proposal to sign the contract also has several provisions to note. For example, under the laws of most countries, if the offeree unconditionally accepts the offer to enter a contract, the contract is considered concluded. On the contrary, if this person adds or amends some points to the proposal to sign the contract, then legally, they have refused to sign the contract. This refusal to sign has certain legal consequences: a contract is considered concluded only if the offeror accepts any amendments made by the offeree.

​>>> Read more: Drafting a contract for the sale of goods

>>> Read more: How to determine the compensation for damages for the breach of contract?

4. How can Apolo Lawyers help our client in signing contracts for the international sale of goods? 

In addition to the information analyzed above, there are some challenges to preparing to sign contracts for the international sale of goods. If you have any problem with the procedure for the international sale of goods or anything else, feel free to contact Apolo Lawyers at our website APOLO LAWYERS, or by Hotline: +84.903.419.479. With a high - professional, long–term practice experienced team of solicitors, Apolo Lawyers claim to give you accurate legal advice fastly and effectively. Besides that, we also provide consultation about legal issues related to the procedure for signing contracts for the international sale of goods, such as:

Consulting about the provisions of the procedure for signing contracts for the international sale of goods;

Draft international contracts and other related documents;

Review international contracts;

Anticipate ideas and agreements that partners can use, thereby proposing appropriate countermeasures.

Apolo Lawyers is proud to be a law firm with many years of experience in business consulting that will support clients in the field of commercial contracts. In case you need advice related to a commercial contract, please contact us via email at [email protected] or Hotline – (+84) 903 419 479 for the best advice and support.

 For a long time, consumers are used to the image of barcodes or the black and white lines or square matrix codes on products. These images, though simple, contain a great amount of information as well as contribution to helping many retailers easily arrange, store and search for product information. Because of its great benefits, barcode registration for goods is received a lot of attention from business subjects. Therefore to meet the needs of our clients, Apolo Lawyers (Tel: (+84) 903.419.479) provides the legal consultation service on barcode registration in Vietnam, which helps you to complete the procedure for barcode registration for goods fastly and efficiently.

1. What are barcodes and barcode registration?

Barcode is the combination of white spaces and white bars arranged according to the rules and parameters, which can only be read by specialized devices such as scanners. Barcode is a method to store and transport the information, data of products, goods,… encoded using a combination of spaces and dashes to represent letters, symbols, and numbers.

Barcode registration is when organizations or individuals prepare dossiers and register at the Ministry of science and technology of the Socialist Republic of Vietnam to be granted the certificate of barcode registration. Therefore, organizations and individuals can bring barcodes to print on their products to use.

2. How to register a barcode?

Vietnamese Law does not require business entities to conduct the procedure for barcode registration, but it encourages them to do this to expand markets and develop businesses and the economy of the country. The procedure for barcode registration will be implemented according to these steps:

Step 1: Determine the number of products needed to be registered with barcodes

There are three types of barcodes:

Less than 100 products;

Less than 1000 products;

Less than 10.000 products.

Depending on the number of products that clients want to register barcode, client could choose a suitable barcode package.

Step 2: Prepare barcode registration dossier

The application for barcode registration includes:

Registration form of use of codes and barcodes;

A copy of the business registration certificate or establishment decision;

Registration form of the product catalog using the GTIN code;

Registration form for GS1 Vietnam database.

Step 3: Register the dossier to the Ministry of science and technology of the Socialist Republic of Vietnam.

Step 4: The registry examines the application for registration of barcode

After submission, the dossier of barcode registration will be appraised at the Registra from 5 – 7 working – days.

Step 5: Granting a barcode and certificate of registration for the enterprises

After verifying the registration documents and confirming the complete and valid documents, the registration agency will issue the barcode to the enterprise for use first, and the barcode registration certificate will be issued to the registrar. Signed then about 30 days.

>>> Read more: Conditions for the protection of industrial designs

3. Legal service for barcode registration for goods in Vietnam at Apolo Lawyers

Proud to be a law firm with many years of experience, Apolo Lawyers committees to provide our clients no limitations, but this support:

Consulting on choosing the type of barcodes that are suitable to the size and intentions of the Enterprise.

Consulting on the selection of barcodes film master in accordance with the product characteristics of the enterprise.

Consulting and completing the application for barcode registration.

Support Enterprises to implement the Ministry of science and technology of the Socialist Republic of Vietnam used to register barcodes.

Submit an application for a barcode certificate at the General Department of Standards, Metrology, and Quality. Monitor the progress of case processing. Receive MSMV film master and transfer to Enterprise for printing and use.

Consulting and supporting businesses in the entire process of using barcodes.​

For further information, please contact us: Apolo Lawyers

 In recent years, Vietnam has attracted more and more foreign tourists and domestic tourists. Tourism is receiving more and more attention from society. Many businesses want to develop in this field. However, the establishment of domestic travel as well as granting a business license for domestic travel need to meet certain standards that not everyone can know. Therefore, Apolo Lawyers (Tel: (+8428) 66.701.709) provides our clients with information about the establishment of domestic travel as well as the consulting service for the procedure for granting a business license for domestic travel fastly and efficiently.

The establishment of a domestic travel business must satisfy the following legal terms:

1. Conditions for domestic travel business

According to the Article 31, Law on Tourism, to be granted a business license for domestic travel, businesses shall meet the following conditions:

The enterprise is established as prescribed by the law on enterprises and has registered a business line that is travel.

The enterprise must make has paid a deposit to a bank. The deposit to the domestic travel business is 20.000.000 dong.

The person in charge of the provision of travel services holds an associate degree or higher in travel; in case he/she holds an associate degree or higher in another major, a certificate of training in domestic tour operation is required.

2. The procedure for granting a business license for domestic travel

Step 1: Prepare and apply the dossier requesting to grant a business license  for domestic travel

The enterprise applying for the license for the provision of domestic travel shall submit 01 application to the tourism authority of the province where the enterprise is located;

The dossier consists of:

An application form for issuance of the license for the provision of domestic tours according to the form prescribed by the Minister of Culture, Sports and Tourism;

A certified true copy of the business registration certificate;

A certificate of deposit payment;

A certified true copy of the decision on appointment or employment contract between the travel service provider and the person in charge of provision of travel services;

Certified true copy of qualifications of the person in charge of provision of travel services prescribed in Point c, Clause 1, Article 31 of this Law.

Step 2: Processing files

Within 10 days from the day on which a valid application is received, the tourism authority of the province shall assess and issue the license for provision of domestic tours to enterprise; in case of refusal, a written response stating reasons thereof must be given.

3. Rights and obligations of a domestic travel business

A domestic travel service provider has the following rights and obligations:

Develop, advertise, sell and provide tourism services and tour programs for tourists within the scope of business specified in the license;

Maintain the fulfillment of conditions for provision of tour specified in Clause 1, Article 31 of this Law; publish the name of provider and tour provision license number on the signboard of the provider, its branches, transaction offices, in travel contracts, on print advertisement and in electronic transactions;

Notify the change of the person in charge of provision of travel services, submit the profile on the new person in charge of provision of travel services to the licensing authority within 15 days since the change;

Provide information on the tour, tourism services and destinations for tourists;

Buy insurance for tourists during their tours, except for those who have had insurance for the whole tour.

Employ tour guides to guide tourists under the travel contract; be responsible for tour guides’ performance during the tour under the contract;

Observe, disseminate and guide tourists to observe local law and regulations; behave in a civilized manner, respect Vietnamese and local cultural identity, customs and practices; cooperate with a competent authority in promptly imposing penalties for the illegal acts committed by tourists during the tour;

Comply with regulations on reporting, statistics, accounting and keep documents in accordance with law.

Take measures to ensure safety of tourists’ lives, health and property; promptly inform competent authorities of accidents and risks which may happen tourists and take remedial measures.

Manage tourists in accordance with the tour program signed with them.

​>>> Read more: Application for construction permit for foreign contractor

>>> Read more: Legal service for the APEC business travel card

4. Legal consultation service on granting a business license for domestic travel at Apolo Lawyers

Here is the overview of the procedure for granting a business license for domestic travel. If you still have any problems with it, do not hesitate to contact us. With a team of high-professional and experienced lawyers in many fields, Apolo Lawyers is committed to providing you with the most optimal service fastly and efficiently. We will perform the following tasks for you:

Consulting on conditions for registration of domestic travel business licenses;

Guide customers to provide information to complete the application for a domestic travel business license;

Drafting application for a license for domestic travel business;

On behalf of the enterprise, carry out the procedures for applying for a license for domestic travel business;

Exchange and provide information to customers in the process of granting domestic travel business licenses

Receive and hand over the domestic travel business license to customers.​

For further information, please contact us: Apolo Lawyers

Because of the significant influence of each M&A deal, investors must always be cautious when researching and performing the signing of M&A contracts. However, the risks from the terms of the contract are not easy to recognize. In this article, Apolo Lawyers will highlight noteworthy points when signing an M&A contract. Our clients, who have a problem with legal due diligence issues, do not hesitate to contact us via email at [email protected] or Hotline - (+84) 903419479.

Before you can perform any activities related to an M&A transaction, it is necessary to understand the nature of an M&A transaction.

1. What is an M&A transaction?

Mergers and Acquisitions (M&A) refer to transactions between two companies combining in some form. Although mergers and acquisitions (M&A) are used interchangeably, they come with different legal meanings. In a merger, two companies of similar size combine to form a new single entity.

On the other hand, an acquisition is when a larger company acquires a smaller company, thereby absorbing the business of the smaller company. M&A deals can be friendly or hostile, depending on the approval of board of the target company.

2. Noteworthy points when signing M&A contracts.

Investors typically conduct the signing and closing process and take on the responsibility for organizing the process, obtaining signatures, and drafting and negotiating all closing documents. Investors must:

First, pay attention to the assurance and assurance measures. This is a form of forcing the participating parties to ensure that the information provided is entirely accurate at the time of signing. When drafting a contract, the parties to the contract must agree to this guarantee and this guarantee is a contractual obligation for which the two parties will be responsible for what they have declared and committed.

if this clause is just a declaration of the parties when entering into an M&A contract, then basically according to the provisions of law, this will not be a legal basis to have the right to claim compensation. Usually damages if one of the parties provides untruthful and causes damage.

Second, the mechanism for determining and adjusting prices. One of the important activities that can determine the future of deal is the valuation of business. The two parties involved need to clearly stipulate the relevant terms, because this valuation result depends on many different factors.

More attention should be paid to disputes that may occur in practice such as: Extra payment based on business performance; one party breaching a contractual obligation; Prerequisites; Reimbursement; or Other disputes (usually labor and shareholder disputes).

>>> Read more: Legal advice on Mergers and Acquisitions (M&A) in Vietnam

>>> Read more: Legal advice on tranfer of investment project in Vietnam

3. Disputes often occur when the parties signed M&A contract.

First, breach of warranties and guarantees.

As mentioned above, warranties and guarantees involves the provisions as well as the information, have been indentified as the basis for entering into contract, so this dispute is quite complicated.

Second, the mechanism of price determination and adjustment.

This problem often arises when the parties have fully paid one or all and have other price adjustment mechanisms right after the conclusion of the contract. However, the parties when signing a contract will be based on a certain pricing method as well as a certain price adjustment that has been agreed in advance.

Third, contractual obligations are breached.

This kind of dispute often arise when the parties do not follow the management and operation of the company, which was agreed upon after the completion of the transaction. Disputes often arise immediately after the completion of the contract.

Fourth, claim for damages, fines for violations and late payment of interest.

According to Vietnamese law, when violating, they will have to pay compensation according to reality. Parties often seek monetary damages because it feels easier and quicker than demanding performance.

Preparing and drafting an M&A contract before signing is a complicated process. To reduce the potential risks for the parties, this process should be conducted by attorneys. Apolo Lawyers is a law firm providing legal service relating to consulting and drafting business contracts. If you want to know more detail about our service, please contact Apolo Lawyers via email at [email protected] or Hotline - (+84) 903419479 for the best legal advice and support.

Mergers and acquisitions are terms often used in the same breath, even to the point where we abbreviate them as M&A. However, while they both refer to the joining of two companies together, they are very different concepts. In this article, Apolo Lawyers (Tel: (+84) 903.419.479) will help our clients distinguish the difference between Merger and Acquisition. 

People said that there is a difference between mergers and acquisitions. So, what is the difference between merger and acquisition?

1. What is merger and acquisition? 

A merger or acquisition transaction is the combination of two companies, resulting in either one corporate entity or a parent-holding and subsidiary company structure. Mergers and acquisitions (M&A) is the process through which companies consolidate via acquiring or merging with other companies, including the acquisition of assets of the company as well as its equity.

2. What is a merger?

A Merger is a corporate strategy of combining two separate entities into a single company in order to increase the financial and operational strengths. One reason companies often decide to merge is to save on production costs. Another reason is to achieve enough to enter new markets or launch new products. These types of financial transactions are heavily regulated to prevent illegal deals and protect consumers from illegal pricing. 

Legally speaking, a merger requires two companies to consolidate into a new entity with a new ownership and management structure (ostensibly with members of each firm). Mergers require no cash to complete but dilute each individual power of company. Typically, mergers are done to reduce operational costs, expand into new markets, boost revenue and profits. Mergers are usually voluntary and involve companies that are roughly the same size and scope.

3. What is an acquisition? 

An acquisition is the purchase of all or a portion of a corporate asset or target company. Acquisitions are a way for a company to achieve substantial growth seemingly overnight, build on the target strengths of the company, and capture synergies. Other reasons behind acquisitions include increased market share, new technologies, control of underutilized assets, and access to thorough distribution channels. During an acquisition, the acquiring company buys the target asset shares of the company which gives the acquirer decision-making power concerning the acquired assets. 

Acquisitions tend to be more hostile than mergers since there is usually a high imbalance in power. They are also more common since it is fairly rare for two companies of roughly equal standing to consent to merge. Often, acquisitions are called mergers purely to avoid a negative connotation. In an acquisition, a new company does not emerge. Instead, the smaller company is often consumed and ceases to exist with its assets becoming part of the larger company. 

An acquisition takes place when one company takes over all of the operational management decisions of another company. Acquisitions require large amounts of cash, but the power of buyer is absolute.

Companies might look to improve their market share, reduce costs, and expand into new product lines. Companies engage in acquisitions to obtain the technologies of the target company, which can help save years of capital investment costs and research and development. 

4. The main difference between mergers and acquisitions

The primary difference between mergers and acquisitions is that a merger is the combining of two organizations into an entirely new entity, while an acquisition is when a company absorbs another, but no new organization is created.

For instance, if two companies agree to merge and create a new legal entity, that would be a merger. On the other hand, if one company buys out another and absorbs it into itself without changing its own identity, that would be an acquisition.

Although some like to explain the difference as surrounding whether one of the disappears of companies into the other after the acquisition, this is not necessarily the case: Rather these are often issues of branding, incorporation, and even tax, and vary across all transactions.    

A merger occurs when two separate entities combine forces to create a new, joint organization. Meanwhile, an acquisition refers to the takeover of one entity by another. Mergers and acquisitions may be completed to expand the reach of the company or gain market share in an attempt to create shareholder value.

>>> See more: The advantage of sharing acquisition in M&A transaction

>>> See more: Cross-border M&A activity

5. How can Apolo Lawyers support clients who need to be consulted legal services in M&A process? 

Apolo Lawyers is a law firm with many years of experience in legal issues relating to merger and acquisition transactions. Clients who are conducting merger and acquisition transactions can contact Apolo Lawyers for: 

Advice on the process of mergers and acquisitions. 

Support due diligence process and intellectual property due diligence

Advice on the notes when making M&A transactions, legal regulations and common risks when merging and acquiring businesses. 

Consulting and representing in the negotiation process of merger and acquisition transactions. 

For further information, please contact us: Apolo Lawyers via email at [email protected] or Hotline - (+84) 903419479 for the best legal advice and support. 

Nowadays, the development of the economy has attracted many foreign investors to invest in Vietnam. When deciding to invest in Viet Nam, many foreign investors choose the merger as the form of investment because of its benefit. Besides that, when merging a foreign-invested business in Vietnam, investors shall comply with the provision of Vietnamese Laws, especially in compliance with the procedure for a foreign-invested companies merger. The article below by Apolo Lawyers (Hotline: (+84) 903.419.479) will let clients know about the procedure for a foreign-invested companies merger.

Mergers occur when two (or more) companies agree to go on to form an entirely new company without maintaining ownership and operations of the component companies. The securities of the component companies will be deleted and the company after the merger will issue new securities. Concurrently, the assets and liabilities will be taken over by the new company.

1. The condition for foreign-invested company merger

When conducting a merger of a foreign-invested company, the investor must comply with the following conditions:

In case of a merger of companies where the merged company accounts for between 30% and 50% of the market share of the relevant market; the legal representative of the merging company with foreign investment is required to notify the Competition Authority before conducting the merger; unless otherwise provided for in the Competition Law.

Prohibit mergers; in which the merged company accounts for more than 50% of the market share of the relevant market; unless otherwise provided for in the Competition Law.

2. The dossier for foreign-invested company merger

A dossier of mergers of a foreign-invested company includes:

Application for adjustment of investment certificate signed by the director;

Resolution of the Board of Directors of the joint venture enterprise; or the agreement of the business cooperation parties; or the request of foreign investor for additional adjustment of the investment certificate.

Report on the operation of the company;

Application for business reorganization;

Dossier of capital transfer (in case of capital transfer);

New company charter (unless it is transformed into a Vietnamese enterprise);

Explain the reorganization of the company;

Documents related to land use;

For company merger procedures: Attached to the company merger contract.

3. Procedures for the merger of foreign-invested companies

Procedures for merging foreign-invested companies are prescribed as follows:

Step 1

The related companies prepare the merger contract and draft the charter of the foreign-invested merging company.

The company merger contract must include the following main contents:

Name and head office address of the merging company;

Name and head office address of the merged company;

Procedures and conditions for merger; labor use plan;

Methods, procedures, deadlines, and conditions for property conversion; Converting contributed capital, shares and bonds of the merged company into contributed capital, shares, and bonds of the merging company;

Time limit for the merger of foreign-invested companies.

Step 2

Members, company owners or shareholders of related companies through merger contracts of foreign-invested companies; Charter of the merging company and conducting business registration of the merging company in accordance with the Law on Enterprises. The merger contract must be sent to all creditors; and notify employees within 15 days from the date of adoption;

Dossier and order of business registration of the merged company with foreign-owned capital must comply with the provisions of the Enterprise Law and be enclosed with copies of the following papers:

Contract on merger of foreign-invested companies;

Resolutions and meeting minutes approving the merger contract of the merging companies;

Resolution and meeting minutes approving the merger contract of the merged companies, unless the merged company is a member or shareholder and owns more than 65% of the charter capital or the voting shares of the merged company. merged company.

Certificate of business registration or other equivalent documents of the merging company and the merged companies.

After receiving the business registration application, the Business Registration Office shall issue a receipt, check the validity of the application and issue a Certificate of Business Registration, a Certificate of Change of Registration Contents. business for business.

Step 3

After the merged company registers the business; the merged company ceases to exist; the merging company enjoys lawful rights and interests; takes responsibility for obligations and unpaid debts; labor contracts and other property obligations of the merged company.

The merging companies automatically inherit all rights and obligations, and legitimate interests of the merged companies under the merger contract.

>>> Read more: Legal advice on Mergers and Acquisitions (M&A) in Vietnam

>>> Read more: Legal advice on tranfer of investment project in Vietnam

4. How can Apolo Lawyers do for our clients?

Merger activities in general and mergers of foreign-invested enterprises, in particular, both need a solid and experienced legal team to advise businesses. Recognizing the needs of customers for consulting on the procedures for merging foreign-invested enterprises, Apolo Lawyers provides consulting services on business mergers and acquisitions. Apolo Lawyers will perform the following tasks for clients:

Collect information, verify the profile of the target company

Assess risk and plan to deal with risk

Completing legal documents for the merger process

Consulting and completing business restructuring procedures after completing a merger.

Apolo Lawyers is proud to be a law firm with many years of experience in business consulting that will support clients in the M&A process. In case you need advice related to M&A, please contact us via email at [email protected] or Hotline - 0903 419 479 for the best advice and support.

With the opposing interests, the occurrence of disputes in labor relations is inevitable. Understanding the knowledge of labor dispute resolution is essential for both employees and employers. However, not everyone understands the provisions of the law on labor dispute settlement. Therefore, Apolo Lawyers (Tel (+8428) 66.701.709) provides customers with legal consulting services on the settlement of labor disputes in Vietnam, helping clients to have a general understanding of it as well as helping clients to avoid it.

1. What is a dispute of labor?

When participating in labor relations, while employees want to reduce working – time and increase their salary, employers want to increase working – time, and productivity and reduce salary. Therefore, it is why conflicts between employees and employers always exist. Generally, the content of a labor dispute is usually the conflict about rights and obligations among the parties in the labor relations.

According to article 179 of Labor Code 2019, a labor dispute means a dispute over rights, obligations, and interests among the parties during the establishment, execution, or termination of labor relation; a dispute between the representative organizations of employees; a dispute arising from a relationship that is directly relevant to the labor relation.

Labor disputes arise and exist in association with labor relations. Concurrently, it is not just a dispute over rights and obligations among the parties, it includes disputes over the interests of each other in labor relations.

2. Types of a dispute of labor

Depending on the scale and the number of one party of the dispute is employees, the labor dispute can be divided into these types:

Individual labor disputes

This is a dispute arising among employees and employers; among employees and businesses or organizations which send employees to work overseas under the contract; between the dispatched employee and the client enterprise.

Disputes between labor collectives and employers

This dispute is a right-based or interest-based collective labor dispute between one or several representative organizations of employees and the employer or one or several representative organizations of employees. In this type of labor dispute, we continue to divide it into 2 little types:

Firstly, a right-based collective labor dispute of rights. It means a dispute between one or several representative organizations of employees and the employers or one or several representative organizations of employees in the following cases:

Discrepancies in interpretation and implementation of the collective bargaining agreement, internal labor regulations, and other lawful agreements;

Discrepancies in the interpretation and implementation of labor laws; or

The employer’s discrimination against the employees or members of the management board of the representative organization of employees for reasons of establishment, operation, or participation in the organization; the employer’s interference or influencing the representative organization of employees; the violation of employer against amicable negotiation.  

Secondly, an interest-based collective labor dispute includes (i) labor disputes that arise during the process of collective bargaining; (ii) a party refuses to participate in the collective bargaining, or the collective bargaining is not held within the time limit prescribed by law.

3. The settlement of labor dispute

The settlement of labor dispute is a process in which the competent State agency will apply the provisions of the law to settle the individual dispute and the dispute between labor collectives and employers about the legitimate rights and interests of employees and employers.

3.1. Settlement of individual labor dispute:

3.1.1. The settlement of the individual dispute by labor mediators

Individual labor disputes shall be settled through mediation by labor mediators before being brought to the Labor Arbitration Council or the Court. However, in the following labor disputes, mediation is not mandatory:

Disputes over dismissal for disciplinary reasons; unilateral termination of employment contracts;

Disputes over damages and allowances upon the termination of employment contracts;

Disputes between a domestic worker and his/her employer;

Disputes over social insurance in accordance with social insurance laws; disputes over health insurance in accordance with health insurance laws; disputes over unemployment insurance in accordance with employment laws; disputes over insurance for occupational accidents and occupational disease in accordance with occupational safety and health laws;

Disputes over damages between an employee and an organization that dispatches the employee to work overseas under a contract;

Disputes between the dispatched employee and the client enterprise.

In case of mediation is not mandatory as prescribed in Clause 1 of Article 188, Labor Code 2019, the labor mediator fails to initiate the mediation by the deadline specified in Clause 2, Article 188, Labor Code, or the mediation is unsuccessful as prescribed in Clause 4, Article 188 Labor Code  the disputing parties may:

Request the Labor Arbitration Council to settle the dispute in accordance with Article 189 of this Labor Code; or

Request the Court to settle the dispute.

3.1.2. Settlement of individual labor disputes by Labor Arbitration Council

By consensus, the parties are entitled to request the Labor Arbitration Council to settle the dispute in any of the cases specified in Clause 7, Article 188, Labor Code 2019. The parties must not simultaneously request the Court to settle a dispute after requesting the Labor Arbitration Council to settle the same dispute, except for the cases specified in Clause 4 of Article 188. In cases that one of the parties does not enforce the award of the settlement of labor dispute by the Labor Arbitration Council, the parties can request the Court to settle the dispute.

3.1.3. Settlement of individual labor disputes by the Court

In case of mediation is not mandatory, the parties are entitled to request the Court to settle a dispute. If one of the party does not enforce the settlement of the labor dispute of the Labor Arbitration Council, the parties are entitled to request the Court to settle the dispute.

3.2. Settlement of right-based collective labor disputes

The following agencies, organizations and individuals have the competence to settle right-based collective labor disputes:

Labor mediators;

Labor Arbitration Councils;

The People’s Court.

Right-based labor disputes shall be settled through mediation by labor mediators before being brought to the Labor Arbitration Council or the Court.

3.3. Settlement of interest-based collective labor disputes

Agencies, organizations and individuals who have the competence to settle interest-based collective labor disputes include:

Labor mediators;

Labor Arbitration Councils.

An interest-based collective labor dispute shall be settled through mediation by labor mediators before it is brought to the Labor Arbitration Council or a strike is organized.

>>> Read more: Labour contract in Vietnam

>>> Read more: The termination of labor contract in Vietnam

4. The service at Apolo Lawyers

Using the legal consulting service on labor dispute resolution at Apolo Lawyers, you will be helped by us with the following tasks:

Advising on the rights and obligations of the disputing parties;

Consulting on dispute resolution options;

Determining grounds for dispute settlement;

Guiding clients to collect evidence;

Participating in negotiation and conciliation in labor cases;

Advising on the order and procedures for instituting a labor case;

The lawyer represents to protect the legitimate rights and interests of the client before the Labor Arbitration Council, the Court;

The lawyer represents to protect the legitimate rights and interests of the client during the judgment enforcement phase.​

For further information, please contact us: Apolo Lawyers

In the fast-moving world, M&A transactions are strongly developing. Concurrently, M&A transactions are more and more complex. So, it is not easy for any investors to implement M&A transactions. The demand for legal advisors who understands the broad impact of all aspects of one transaction is increasing. Realizing that, Apolo Lawyers introduces the service “Legal advice on Mergers and Acquisitions (M&A) in Vietnam” to our clients. Contact Apolo Lawyers (Hotline: (+84) 903.419.479) to be supported about Mergers and Acquisitions (M&A) quickly and efficiently.

Mastering the basis of M&A is one of the most important keys to helping us open the door to success when conducting M&A transactions. So, what is M&A? How do M&A transactions affect business? Let’s find the answers with us.

1. What is an M&A transaction?

M&A is an acronym for two words Mergers and Acquisitions. The essence of M&A transaction is the act of gaining control of a business through mergers or acquisitions. In there:

Mergers occur when two (or more) companies agree to go on to form an entirely new company without maintaining ownership and operations of the component companies. The securities of the component companies will be deleted and the company after the merger will issue new securities. Concurrently, the assets and liabilities will be taken over by the new company.

Acquisitions refer to a business that seeks to acquire control over another business by acquiring all or part of the total shares or assets of the business. Unlike mergers, acquisitions do not erase the old securities of the company and do not issue new securities. Assets and liabilities will be settled at the discretion of the acquiring company.

2. The advantages of M&A

In recent years, the development of M&A has brought a great profit for the economy in general and business in particular because of the great advantages of M&A activities.  

In general, when conducting an M&A transaction, both buyers and sellers gain different profits.

For the buyer, M&A is an effective form of excess capital investment, concurrently businesses can control this activity. M&A helps the buyer reduce a lot of costs by taking advantage of available resources such as machinery, human resources, market share, or even distribution channels of the target company. At the same time, M&A also helps to increase the influence of enterprises by expanding both geographical markets and product markets. And of course, when doing M&A, the parent company will have one less competitor as the target company. All of the above benefits will help the parent company increase revenue and grow stronger in the market.

For the seller, M&A is the fastest way to get profits from the company, and it is also a quick procedure to terminate the operation of the company. At the same time, M&A also helps the seller to maximize profits from the valuation of all tangible and intangible assets of the company. For companies that still want to grow, this is also a suitable tool to grow their business from the capital of the acquired/consolidated company.

3. The provisions of the law about the M&A

M&A brings many benefits to both businesses and the economy, but the legal framework governing M&A activities is quite complicated. Currently, regulations on M&A are located separately in different documents such as Competition Law, Enterprise Law, Investment Law, Securities Law, etc.

Each document, M&A is regulated in the form of a different activity, for example, the Competition Law stipulates that M&A is a form of economic concentration, while the Enterprise Law considers M&A to be a form of business reorganization, and M&A is a form of direct investment through the purchase and sale of capital/shares according to investment law.

>>> Read more: Legal advice on tranfer of investment project in Vietnam

>>> Read more: Legal Due Diligence consulting service

4. The service of legal advice on Mergers and Acquisitions in Vietnam at Apolo Lawyers

M&A activities need a solid and experienced legal team to advise businesses because M&A is regulated in many different legal documents. Recognizing the needs of customers for consulting on business mergers and acquisitions, Apolo Lawyers provides consulting services on business mergers and acquisitions. Apolo Lawyers will perform the following tasks for clients:

Collect information, verify the profile of the target company

Assess risk and plan to deal with risk

Completing legal documents for the M&A process

Consulting and completing business restructuring procedures after completing M&A.

Apolo Lawyers is proud to be a law firm with many years of experience in business consulting that will support clients in the M&A process. In case you need advice related to M&A, please contact us via email at [email protected] or Hotline - 0903 419 479 for the best advice and support.

For further information, please contact us: Apolo Lawyers

Mua lại doanh nghiệp (Acquisition) là hoạt động trong đó một doanh nghiệp tìm cách nắm giữ quyền kiểm soát đối với một doanh nghiệp khác thông qua thâu tóm toàn bộ hoặc một phần tổng số cổ phần hoặc tài sản của doanh nghiệp. Có thể thấy, có nhiều cách thức để mua lại doanh nghiệp. Bài viết dưới đây của Apolo Lawyers (Hotline: 0903.419.479) sẽ nêu rõ một số kiểu mua lại doanh nghiệp.

Thị trường mua bán doanh nghiệp thường có 4 kiểu mua lại doanh nghiệp như sau: (i) Mua lại kiểu thân thiện (Friendly Takeover); (ii) Mua lại kiểu thù địch (Hostile Takeover); (iii) Mua lại kiểu thâu tóm ngược (Reverse Takeover); (iv) Mua lại kiểu Backflip (Backflip Takeover)

1. Mua lại kiểu thân thiện (Friendly Takeover)

Một thương vụ mua lại thân thiện là khi các bên “Thuận mua vừa bán”, đồng thời cả hai bên đều đạt được những mục tiêu riêng của mình. Thông thường, bên mua lại sẽ gửi một đề nghị đến Hội đồng quản trị của bên bị mua lại để xem xét và thông báo cho các cổ đông. Nếu như Hội đồng quản trị thấy rằng thương vụ mua lại này đem lại nhiều lợi ích cho cổ đông thì Hội đồng quản trị sẽ đề nghị các cổ đông chấp nhận thương vụ này. Từ đó hình thành một giao dịch mua lại kiểu thân thiện.

2. Mua lại kiểu thù địch (Hostile Takeover)

Ngược lại với sự đồng thuận trong giao dịch mua lại thân thiện, trong giao dịch mua lại thù địch, kết quả của giao dịch chỉ là ý muốn đơn phương của bên mua lại và không nằm trong ý chí của bên bị mua lại. Thông thường, một giao dịch được coi là mang tính thù địch khi Hội đồng quản trị công ty bị mua lại từ chối lời đề nghị của bên mua lại tuy nhiên bên này vẫn tiếp tục theo đuổi thương vụ, hoặc tuyên bố một cách thẳng thừng về việc sẽ thực hiện thương vụ.

3. Thâu tóm ngược (Reverse Takeover)

Khi một doanh nghiệp có tình trạng kinh doanh không hiệu quả, đồng thời giá trị thị trường giảm, hoặc mong muốn tìm một đối tác chiến lược, họ chấp nhận bị mua lại bởi những công ty chưa đủ điều kiện niêm yết. Những công ty chưa đủ điều kiện niêm yết sau khi mua lại những công ty nói trên nghiễm nhiên được niêm yết trên thị trường chứng khoán bằng việc đổi tên cổ phiếu đã niêm yết. Những thương vụ như vậy sẽ gọi là thâu tóm ngược. Những cổ phiếu được niêm yết sẽ mang lớp “vỏ” của công ty bị mua lại những là “ruột”

>>> Xem thêm: Luật sư tư vấn về M&A - mua bán và sáp nhập doanh nghiệp 

>>> Xem thêm: Luật sư tư vấn giai đoạn đàm phán hợp đồng M&A

4. Mua lại kiểu Backflip (Backflip Takeover)

Mua bán kiểu Backflip là một dạng mua lại mà ở đó công ty đi mua lại tự biến mình thành công ty con của công ty bị mua lại. Loại hình này thường xảy ra khi công ty mua lại là một công ty lớn hơn nhưng lại có ít danh tiếng hơn và công ty bị mua lại là một công ty có danh tiếng nhưng lại gặp khó khăn về tài chính.

5. Dịch vụ luật sư tư vấn về mua lại doanh nghiệp

Có thể thấy, với nhiều kiểu mua lại khác nhau, doanh nghiệp cần phải cân nhắc, lựa chọn kiểu mua lại nào là phù hợp với tình hình của mình. Do đó, việc cần có một đội ngũ pháp lý đủ vững chắc và giàu kinh nghiệm để cố vấn cho doanh nghiệp khi thực hiện giao dịch mua lại là hết sức cần thiết. Nhận thấy được nhu cầu của Quý khách hàng đối với việc tư vấn về mua lại doanh nghiệp, Apolo Lawyers cung cấp dịch vụ luật sư tư vấn về mua lại doanh nghiệp. Apolo Lawyers sẽ thực hiện các nhiệm vụ sau đây cho quý khách hàng:

Thu thập thông tin, xác minh hồ sơ của công ty mục tiêu

Đánh giá rủi ro và lên kế hoạch giải quyết rủi ro

Hoàn thiện hồ sơ pháp lý cho quy trình mua lại doanh nghiệp

Tư vấn và hoàn thành thủ tục tái cơ cấu doanh nghiệp sau khi hoàn thành thủ tục mua lại.

Apolo Lawyers tự hào là công ty luật có nhiều năm kinh doanh trong việc tư vấn doanh nghiệp sẽ hỗ trợ quý khách hàng trong quá trình thực hiện M&A. Trường hợp có nhu cầu được tư vấn liên quan đến M&A, quý khách hàng vui lòng liên hệ với chúng tôi qua email [email protected] hoặc Hotline - 0903 419 479 để được tư vấn, hỗ trợ tốt nhất.

Hoạt động M&A mang lại nhiều lợi ích cho doanh nghiệp. Song, nó cũng làm phát sinh nhiều vấn đề pháp lý. Một trong những câu hỏi pháp lý nổi bật mà Apolo Lawyers thường xuyên nhận được đó chính là: Hậu M&A, nợ cũ ai trả? Việc thay đổi tên gọi và thay đổi cổ đông của doanh nghiệp có giải phóng doanh nghiệp khỏi các khoảng nợ cũ hay không? Bài viết dưới đây của Apolo Lawyers (Hotline : 0903 419 479) sẽ giúp Quý độc giả giải đáp những thắc mắc đó.

Hiện nay, một số doanh nghiệp vinh vào M&A để từ chối trả những khoảng nợ cũ. Không ít người lao động khốn đốn vì bị nợ lương vì sau M&A không ai chịu trách nhiệm về các khoản nợ cũ.

M&A không có nghĩa là thay đổi doanh nghiệp

Đầu tiên, cần phải làm rõ ràng, hoạt động M&A không là thay đổi doanh nghiệp mà sẽ chỉ làm thay đổi cổ đông hoặc có thể thay đổi tên doanh nghiệp. Và việc thay đổi cổ đông không làm thay đổi cách doanh nghiệp sử dụng người lao động. Bởi, doanh nghiệp trước là người sử dụng lao động, đồng thời, mối quan hệ giữa doanh nghiệp và người lao động là độc lập với cổ đông. Vì vậy, sau M&A, doanh nghiệp trước đó vẫn có trách nhiệm thanh toán khoản nợ lương cho người lao động.

Nghị định 01/2021/NĐ-CP quy định về hướng dẫn đăng ký doanh nghiệp như sau: "Việc thay đổi tên doanh nghiệp không đồng nghĩa với việc thay đổi quyền và nghĩa vục của doanh nghiệp".

Từ đó, có thể thấy rằng, việc thay đổi cổ đông, thay đổi tên công ty sau hoạt động động M&A không làm thay đổi nghĩa vụ của doanh nghiệp trước đó.

Cần rõ ràng ngay từ đầu đối với hoạt động xử lý nợ trong M&A

Các khoản nợ của công ty là một trong những vấn đề dễ gây ra tranh chấp trong giao dịch M&A. Thông thường, tranh chấp pháp sinh khi bên bán che giấu các khoản nợ, và bên mua chỉ phát hiện ra sau khi tiếp quản công ty.

Về nguyên tắc, lợi ích của các cổ đông trong doanh nghiệp cũ (bên bán) không bị ảnh hưởng bởi các khoản nợ của doanh nghiệp, bởi bên bán chỉ đang thực hiện quyền bán cổ phần của mình và nhận tiền chuyển nhượng cổ phần đó chứ không bán tài sản của doanh nghiệp.

Tuy nhiên, trên thực tế, một trong những nguyên nhân khiến cho giá bán cổ phần bị giảm là nợ của doanh nghiệp. Tùy vào số nợ của doanh nghiệp, bên mua thường sẽ yêu cầu bên bán giảm giá tương ứng với số nợ đó. Và thông thường, các bên trước khi hoàn tất giao dịch M&A sẽ yêu cầu bên bán hoàn tất các khoản nợ, thanh toán khoản nợ lương trước đó.

Những thông tin ở trên dựa theo những quy định, bên cạnh đó, cần phải rõ ràng trước M&A để tránh những rủi ro về tài chính cũng như pháp lý cho cả hai bên khi tham gia hoạt động. Đồng thời, hai bên cũng có thể thỏa thuận với nhau, khi xảy ra những vấn đề « hậu » M&A, những thỏa thuận trước đó sẽ được áp dụng để giải quyết.

>>> Xem thêm: Mẫu đơn khởi kiện tranh chấp đất đai

>>> Xem thêm: Bắt người lao động không được làm việc cho Công ty đối thủ liệu có đúng luật

Nếu có khó khăn, thắc mắc về mua bán và sáp nhập doanh nghiệp cũng như các vấn đề pháp lý khác Quý khách hàng vui lòng liên hệ với công ty chúng tôi Công ty Luật Apolo Lawyers qua email [email protected] hoặc Hotline - 0903 419 479 để được tư vấn, hỗ trợ tốt nhất.

Chúng tôi là công ty luật hoạt động dựa trên nền tảng lấy sự uy tín, tinh thần trách nhiệm làm đầu. Luật sư của chúng tôi là những người có trình độ chuyên môn cao, có kinh nghiệm hành nghề lâu năm, luôn làm việc tận tâm, nhiệt tình và hiệu quả. Chúng tôi luôn cung cấp dịch vụ pháp lý chuyên nghiệp với chất lượng vượt trội. Thông tin của khách hàng được chúng tôi bảo mật tuyệt đối. Và điều quan trọng mang đến sự thành công cho chúng tôi là chúng tôi luôn mang đến cho khách hàng sự an tâm và lợi ích tối đa trong từng vụ việc.

An international transaction is strongly developing day by day, the demand to travel for business is enhanced rapidly. One of the ways to make business travel easier and more convenient is the APEC business travel card - ABTC. However, not all businessmen can make their own APEC business travel cards. Therefore, Apolo Lawyers (Tel: (028) 66.701.709) offers our clients the legal service for the APEC business travel card (ABTC).

If you are looking for information about the APEC business travel card (ABTC) or the legal service for the APEC business travel card (ABTC), this article is a good option for you.

1. What is the APEC business travel card?

First of all, APEC, Asia–Pacific Economic Cooperation, is the leading cooperation mechanism in the Asia-Pacific to promote trade and investment liberalization, economic growth, and shared prosperity in the region. Nowadays, there are 21 countries that are members of the APEC. These countries are the USA, Canada, Australia, New Zealand, Papua New Guinea, China, Hong Kong, Taiwan, Japan, Korea, Singapore, Indonesia, Malaysia, Philippines, Thailand, Brunei, Vietnam, Russia, Mexico, Chile, and Peru.  

APEC business travel card (ABTC) is a special type of card that the authorities of countries and territories grant to businessmen for convenient travel, stay for purpose of commercial business, and performing services.

2. The advantages of ABTC

A businessman who has ABTC, when entering and exiting the countries and territories listed on the card, you do not need a 5-year visa (Visa exemption), do not have to go through the procedures for registration of residence, and can enter and exit many times, each time is 60 - 90 days for those countries and territories. Besides that, businessmen with ABTC are given priority for administrative procedures in public places such as airport procedures, customs,…

3. The conditions for being granted ABTC

Not every businessman will be granted an APEC business travel card, but that businessman must meet some specific conditions as follows:

3.1. The conditions for businesses

Businesses with minimum production and business turnover of 10 billion Vietnam dong or total import-export turnover of at least 10 billion Vietnam dong in the lastest year;

The business does not dept tax;

Enterprises that have business, trade, investment, and service cooperation activities with partners in member economies participating in ABTC cards, expressed through transaction contracts.

3.2. The conditions for positions of businessmen

Businessmen who are granted ABTC include people holding positions such as: Owner of a private enterprise, Chairman of the Board of Members, member of the Board of Members, Chairman of the Board of Directors, member of the Board of Directors, General Director or Director of the company, Chief Accountant, Head of Department.

>>> Read more: Legal service on the Visa application to go abroad

>>> Read more: Application for construction permit for foreign contractor

3.3. The conditions for businessmen of businesses

Hold an ordinary passport with a validity of at least 3 years from the date of submission of the application for approval to use the ABTC card.

Currently working at enterprises specified in Article 2 of this Regulation that has business, trade, investment, and service cooperation activities with partners in member economies participating in ABTC cards.

Working at enterprises is represented by labor contracts, decisions on the appointment of positions, and participation in social insurance contributions as prescribed by law.

Being a person who is full 18 years old and has not been restricted or lost his civil act capacity.

Being an owner, a capital contributor, or working under a labor contract (with a signed labor contract of the indefinite term) having worked at the enterprise before applying for an ABTC card for at least 12 months.

There is a regular demand for short-term trips to ABTC member economies to sign and implement business commitments in the APEC region.

4. Legal service for the APEC business travel card

We are Apolo Lawyers, a law firm of Ho Chi Minh City Bar Association. With the principle of operation “to help, to protect”, we are committed to providing our clients the most optimal legal consultation service on the wide fields, especially in the APEC business travel card. When our clients use legal consultation service at Apolo Lawyers, you will take quality and professional service from Solicitors who are high – professional and experienced. Choosing legal consultation service on the procedure for registration of foreign loans, Apolo Lawyers will help you with no limited but specified following tasks:

The new issue of ABTC card;

Renewal of ABTC card is about to expire;

Issue and exchange ABTC due to lost, broken, or damaged;

Renewal of ABTC due to change of passport;

Issuing and changing ABTC due to insufficient countries.​

For further information, please contact us: Apolo Lawyers

One of the common reasons that lead to the failure of M&A transactions is the insufficiency of the basic information about parties. To avoid risks, and enhance the success rate of M&A transactions, many companies pay huge attention to Due Diligence, especially Legal Due Diligence. Realizing the demand of companies on the Legal Due Diligence process, Apolo Lawyers (Hotline: (+84) 903.419.479) provides the Legal Due Diligence consulting service, which helps our clients get the success in Legal Due Diligence in particular and in M&A transactions

In general, there are many criteria when evaluating a business, including: Financial Due Diligence, Legal Due Diligence, Tax Due Diligence, and Intellectual Property Due Diligence,… But Legal Due Diligence plays an important role in Due Diligence.

1. Why do we need to implement Legal Due Diligence?

Legal Due Diligence aims to find out, review legal information and assess the legal risk of the business. As spoken above, Legal Due Diligence plays an important role in Due Diligence in particular and M&A transaction in general. Before the company signs any contract, it is necessary to understand the “health” of the partner to be able to make a decision whether to buy, cooperate or invest with that company or not? Is the business value offered by the seller reasonable? If not, what is the basis for negotiation and negotiation in the M&A deal?

No investors can risk pouring money into a business that lacks transparency. The discovery of legal loopholes in the business can greatly affect the investment process because it can prolong the time of agreement between the parties.

2. The necessary documents for Legal Due Diligence

The longer the business has been in operation, or the larger the company, the greater the number of documents that need to be verified.

The documents that companies need to focus on when performing Legal Due Diligence of partner businesses or customers:

2.1. Establishment and operation dossier

Certificate of business registration

Investment certificate/Certificate of investment registration/Approval to allow registration of the purchase of contributed capital/shares for foreign investors/Business license.

Outward investment certificate (applicable to all countries and territories where the enterprise has investment activities – directly or indirectly)

Certificate of operation registration of branch/representative office/business location.

Enterprise charter

List of shareholders/founding members of the enterprise

Dossier for adjustment or change related to business registration information and contents:

Minutes of the Board of Directors / Board of Members / General Meeting of Shareholders;

Decision/ Resolution passed by the general meeting of shareholders/board of management/members council;

Relevant contracts and agreements;

Other relevant documents.

Tax code registration certificate;

Any other relevant documents (if any).

2.2. Capital and owner

Minutes, agreements, capital contribution contracts between the founders/members / founding shareholders / existing shareholders;

Agreements, contracts for purchase and sale - transfer of shares/contributing capital/bonds, convertible loan contracts and other relevant agreements related to the transfer/contribution/issuance of shares;

List of members/ Register of shareholders/ Certificate of capital contribution/ Certificate of share ownership and equivalent documents (if any);

Minutes of valuation of assets contributed as capital/Deed on valuation of assets contributed as capital;

Documents proving the transfer transaction for the issue of capital contribution, share purchase/Written receipt or other equivalent certification in this regard;

Any other relevant documents.

2.3. Property

List of assets owned/rented or leased/otherwise used by the business.

Registration documents/Certificates/Protection documents/Registration documents/Agreements related to intellectual property objects of the enterprise/business owner (including trademarks) , industrial designs, inventions, utility solutions, etc.).

Contract/Invoice/Certificate of ownership/use and all documents related to the ownership of fixed assets of the enterprise.

Loan/mortgage/guarantee/purchase/other arrangements affecting the ownership of enterprise of current and future assets (if any).

2.4. Management personnel and organizational structure

List and personal information of:

Board of members / Board of Directors;

General Meeting of Shareholders;

Key personnel of the enterprise (manager level/head of department and above).

Minutes, decisions, notices related to hiring/appointment/other forms of recruitment/removal/dismissal/disciplinary handling of personnel managing and operating the enterprise:

Chairman of the Board of Directors/ Chairman of the Council of Members;

Member of the Board of Directors/the Council of Member;

General Director/Director/Deputy Director;

Head of branch/representative office/business location;

Managing Director / Sales Director;

Chief Accountant/Finance Director;

Checker;

Directors, heads of other departments (from management level/head of department upwards).

All meeting minutes, resolutions/decisions of the Board of Directors/Board of Members and the General Meeting of Shareholders on business matters.

All meeting minutes of the Board of Directors, decisions of the General Director/Director (if any).

Corporate internal policy documents, including (applicable to managers/heads of departments and above):

Work assignment mechanism;

Authorization and representation mechanism;

Principles of revenue and expenditure and reporting;

Management and operating mechanism of the enterprise;

Job description;

Commitment to responsibility, commitment to confidentiality (if any).

Any other relevant documents (if any).

2.5. Labor

Types of labor contracts of indefinite duration;

Labor contract with definite term;

Probationary contract;

Agreement on labor transfer/labor hire;

Vocational training contract/ Apprenticeship contract/ Agreement/ Other labor agreement in any form;

Labor regulations;

Collective labor agreement;

Employee handbook/Work manual/Office rules and relevant internal personnel documents (if any);

List when declaring/reporting employers;

List of employees entitled to social insurance premiums and personal income tax deduction, together with certification from competent authorities;

Registered salary scale and table;

Invoices, vouchers or other documents proving the payment of salaries, allowances, other support regimes, social insurance and other insurances;

Internal labor regulations:

Regulations on handling of labor discipline;

Confidentiality Regulations;

Regulations on bonus - allowance - support;

Regulations on rest and working regimes; Other regulations (if any).

Operational regulations, establishment decision, list of Executive Committee, trade union members (Attached with personal information of each member);

Documents certifying the fulfillment of the obligation to pay trade union dues, financial documents on trade union activities at the enterprise, other documents on trade unions (if any);

Labor management book;

Other decisions, policies and announcements related to the labor of enterprise;

All documents and records on handling labor discipline, labor disputes, termination/suspension/adjustment of labor relations (if any).

2.6. Contract

Contract of lease/cooperation in the use of premises/leasing/transfer of premises/other contracts related to land use rights and land-attached assets in the operation of the enterprise.

Business cooperation contract;

Contract in the form of service provision;

Contracts in the form of goods sale and purchase;

Other economic contracts/transactions (if any), including the following fields:

Agency;

Processing;

Import and export;

Promotion;

Carriage;

Rental activities.

Written authorization/approval/appointment of personnel to sign/participate in the performance of respective contracts/transactions.

2.7. Tax, and Accounting

Set of annual financial statements.

Value added tax declaration.

Enterprise accounting book (general diary);

Bank records;

Output vouchers and beginning of years;

Receipts, certifications, notices on the fulfillment of the annual tax payment obligation;

Details of corporate debt;

Documents, invitations, notices, decisions on the sanction, arrears, requests for explanation and other requests of functional agencies (if any);

Documents and information on tax disputes and complaints (if any);

Enterprise audit report from financial years (if any);

Dossiers of official dispatches directing/incentives - exemptions and reductions directly applicable to enterprises and relevant decisions and announcements (if any).

2.8. Bank and credit

List and details of bank accounts including personal accounts designated to receive payments (if any);

Information of the registrant/name of another account of the Enterprise/Authorized person to manage;

Official confirmation from the bank about the status of the business account and the statement of transactions of the business account in the last 3 financial years;

All other credit contracts and agreements with the Bank/Organization designated by the bank/Other relevant organizations (if any).

2.9. Business conditions – License

All licenses/certifications/approvals/certifications of notification obligations, other registrations for any type of business activity (licenses) or documents proving Business eligibility legal equivalent;

List of registered business lines of the enterprise;

Details of dossiers and documents of adjustment/supplementation/revocation related to the contents of the licenses;

Other types of licenses depend on the type of business and business lines.

2.10. Sanctions, Disputes and Litigation

List and documents related to the disputes of the Enterprise/Founding Shareholder/Founding Member. Court or arbitration proceedings, prosecutions or claims relating to the business, whether completed, incomplete or threatened;

Minutes of decisions on sanctioning administrative violations/ inspections/ inspections applied by competent state agencies to enterprises and other relevant documents (if any);

In addition, during the appraisal, the enterprise may also need to present internal issues, such as internal disputes within the enterprise.

>>> Read more: General process of an M&A - Due Diligence (DD) Deal

>>> Read more: Legal advice on the transfer of investment project in Vietnam

3. How can Apolo Lawyers assist?

Apolo Lawyers is a law firm operating on the foundation of taking prestige and responsibility first. Our lawyers are high-professional and experienced, always working with dedication, enthusiasm, and efficiency. We always provide professional legal services with outstanding quality. We also keep the information of our clients completely confidential. We always bring our customers peace of mind and maximum benefits in each case.

About Legal Due Diligence consulting service, we support our Clients to do no limit but including the following tasks:

Conduct legal review and appraisal of important legal documents, documents and documents signed and issued during the establishment and operation of the target company

Check financial status, organizational structure, business registration content, employment status, transaction contracts, disputes and proceedings of the company, etc.

Prepare a legal due diligence report with details of the content mentioned by the investor.

Consulting, building an information confidentiality agreement for the parties before proceeding to the next stages of the M&A transaction.

Consulting, offering solutions for cases where there are factors affecting the legal feasibility of the transaction.

If you have any difficulties or questions about the procedure for the merger in Vietnam as well as other issues, please contact Apolo Lawyers via email at [email protected] or Hotline – (+84) 903.419.479 for the best legal advice and support.

For further information, please contact us: Apolo Lawyers

Day by day, more and more businesses have a higher demand for capital to grow and expand, due to the demand for foreign loans is a matter. In order to meet the needs of our clients and remove the difficulties with the registration of foreign loans, Apolo Lawyers (Tel: (+8428) 66.701.709) is willing to provide our clients an overview of the registration of foreign loans in Vietnam, concurrently the legal consultation service to register foreign loans.

Registration of foreign loans is the administrative procedure at the State bank of enterprises with the long–term and mid-term foreign loans or renewed short–term loans that total term of these loans in over one year.

1. The foreign loans shall be registered

The following foreign loans are subject registered at the State Bank:

Long – term and mid-term foreign loans;

Renewed short–term loans that the total term of these loans is over 1 year;

Short–term loans with no renewal contract, and remain outstanding for one year since their initial disbursement.

2. The condition to register foreign loans

To register foreign loans not guaranteed by the government, enterprises shall be in compliance with the terms to register foreign loans, forex management for foreign borrowing, and debt repayment activities that are regulated in the Circular No. 12/2014/TT-NHNN on requirements for taking foreign loans applied to enterprises not guaranteed by the government.

3. The procedure for registration of foreign loans

The procedure for registration of foreign loans includes these steps:

Step 1: The borrowers send the application to the competent authorities to confirm the registration of foreign loans within 30 days from:

The date of signing the mid – and long – term foreign loans agreement;

The date of signing the guaranteed documents in the case of guaranteed loans;

The date of signing the written capital withdrawal agreement in case the parties agree on capital withdrawal on the basis of the framework agreement signed and prior to capital withdrawal;

The date of signing the agreement to renew the short-term foreign loan into a mid - or long-term term for the renewed short-term self-borrowing loan that total term is over 01 year;

01 (one) day of the year from the date of first capital withdrawal, for short-term loans without extension contracts but with outstanding principal balance at the time of full 01 (one) year from the date of first capital withdrawal, except where the Borrower completes loan repayment within 10 (ten) days from the date of full 01 (one) year from the date of first capital withdrawal.

The borrowers who send online can choose to submit the additional documents according to the introduction on the Website.

Step 2: The competent authority has written confirmation or refusal to confirm the registration of foreign loans within the time limits.

12 working – days from the date of receipt of the complete and valid dossier of the Borrower (in case the Borrower chooses the online form), or;

15 working – days from the date of receipt of the complete and valid dossier of the Borrower (in case the Borrower chooses the traditional method);

45 working – days for the date of receipt of the complete and valid dossier of the Borrower, in case the loan is denominated in VND, which must be considered and approved by the Governor of the State Bank about the current regulations on foreign loan conditions of enterprises not guaranteed by the Government;

In case of refusal to confirm registration for loan change, the competent authority shall issue a written explanation clearly stating the reason therefor.

>>> Read more: The dispute settlement of the international contract for the sale of goods in Vietnam

>>> Read more: What does an application for registration of the company include?

4. Method to register foreign loans

There are two ways to register foreign loans:

Online registration

Direct registration

5. Legal consultation service on the procedure for registration of foreign loans in Vietnam at Apolo Lawyers

We are Apolo Lawyers, a law firm of Ho Chi Minh City Bar Association. With the principle of operation “to help, to protect”, we are committed to providing our clients the most optimal legal consultation service in the wide fields, especially in the procedure for registration of foreign loans. When our clients use legal consultation service at Apolo Lawyers, you will take quality and professional service from Solicitors who are high – professional and experienced. Choosing legal consultation service on the procedure for registration of foreign loans, Apolo Lawyers will help you with no limited but specified following tasks:

Legal consulting on conditions for foreign loans for enterprises;

Legal consulting on foreign loan contracts;

Draft and review the application for registration of foreign loans;

Legal consulting and assisting our clients with carrying out procedures for registration of foreign loans with the State Bank;

Consulting procedures for statistical reporting on foreign loans;

Comprehensive advice on arising issues related to foreign loans of enterprises.​

For further information, please contact us: Apolo Lawyers

The termination of labor contracts is an important legal event because of its legal consequences. Terminating the labor contract means ending the labor relations and, in some cases, it directly affects an employee’s life and work and may cause damage to employers. So that, both employee and employer shall consider carefully before deciding to terminate the labor contract and need to understand the provisions about the termination of labor contracts. Therefore, let Apolo Lawyers (Tel: (+84) 903.419.479)) provide you with an overview of the termination of labor contracts in Vietnam.

The provisions of the law on the termination of labor contract include the following contents:

1. What is the termination of labor contracts?

According to clause 1, Article 13 of the Labor law 2019, “A labor contract is an agreement between an employee and an employer on a paid job, salary, working conditions, and the rights and obligations of each party in the labor relations.”  The nature of the labor contract does not depend on the name of the contract but on the content of the agreement between the two parties in the contract, which shows paid job, salary, management, and supervision of a party with the other in the contract.

So, the termination of labor contracts is a legal event that one or both parties in the contract do not continue to implement the contract, terminate the rights and obligations of the two parties as agreed in the labor contract.

In general, current Vietnamese Law stipulates three main groups of causes leading to the termination of labor contracts, such as: (i) naturally termination of labor contracts; (ii) Unilateral termination of labor contracts.

2. Naturally termination of labor contracts

Naturally termination of labor contracts is understood as a case that a labor contract terminates when there are certain legal events that the parties usually do not need to perform any additional legal obligations to terminate the labor contract. In the light of the Labor Law 2019, some cases are automatically graded termination of the labor contract in accordance with the following legal events:

The labor contract expires, except for the case specified in Clause 4 Article 177 of this Code.

The tasks stated in the labor contract have been completed.

Both parties agree to terminate the labor contract.

The employee is sentenced to imprisonment without being eligible for suspension or release as prescribed in Clause 5 Article 328 of the Criminal Procedure Code, capital punishment, or is prohibited from performing the work stated in the labor contract by an effective verdict or judgment of the court.

The foreign employee working in Vietnam is expelled by an effective verdict or judgment of the court or a decision of a competent authority.

The employee dies; is declared by the court as a legally incapacitated person, missing or dead.

The employer that is a natural person dies; is declared by the court as a legally incapacitated person, missing or dead. The employer that is not a natural person ceases to operate, or a business registration authority affiliated to the People’s Committee of the province (hereinafter referred to as “provincial business registration authority”) issues a notice that the employer does not have a legal representative or a person authorized to exercise the legal representative’s rights and obligations.

The employee is dismissed for disciplinary reasons.

The employer allows the employee to resign in accordance with Article 42 and Article 43 of this Code.

The work permit or a foreign employee expires according to Article 156 of this Labor Code.

The employee fails to perform his/her tasks during the probationary period under the labor contract or gives up the probation.

3. Unilateral termination of labor contracts

Unilateral termination of labor contracts is when one party voluntarily terminates the rights and obligations agreed upon in the labor contract without depending on the willingness of the other party.

3.1. The employee unilaterally terminates the labor contract

Unilateral termination of labor contracts is an important right of the employee. The employee can unilaterally terminate the labor contract in two ways:

First, unilateral termination of labor contracts without giving reasons but must provide the employer notices in advance.

An employee shall have the right to unilaterally terminate the employment contract, provided he/she notices the employee in advance:

at least 45 days in case of an indefinite-term employment contract;

at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;

at least 03 working days in case of an employment contract with a fixed term of under 12 months;

The notice period in certain fields and jobs shall be specified by the government.

Second, unilateral termination of labor contracts without prior notice of the employee.

An employee is shall have the right to unilaterally terminate the employment contract without prior notice if he/she:

is not assigned to the work or workplace or not provided with the working conditions as agreed in the employment contract, except for the cases specified in Article 29 of this Labor Code;

is not paid adequately or on schedule, except for the case specified in Clause 4 Article 97 of this Code.

is maltreated, assaulted, physically or verbally insulted by the employer in a manner that affects the employee’s health, dignity, or honor; is forced to work against his/her will;

is sexually harassed in the workplace;

is pregnant and has to stop working in accordance with Clause 1 Article 138 of this Labor Code.

reaches the retirement age specified in Article 169 of this Labor Code, unless otherwise agreed by the parties; or

finds that the employer fails to provide truthful information in accordance with Clause 1 Article 16 of this Labor Code in a manner that affects the performance of the employment contract.

3.2. The employer unilaterally terminates the labor contract

Compared with the right of the employee to unilaterally terminate a labor contract, the right of the employer to unilaterally terminate a labor contract is much more limited. In order to terminate the labor contract, the employer must comply with the cases specified in Article 36, Labor Code 2019, specifically:

The employee repeatedly fails to perform his/her work according to the criteria for assessment of employees’ fulfillment of duties established by the employer. The criteria for assessment of employees’ fulfillment of duties shall be established by the employer with consideration taken of opinions offered by the representative organization of employees (if any);

The employee is sick or has an accident and remains unable to work after having received treatment for a period of 12 consecutive months in the case of an indefinite-term employment contract, for 06 consecutive months in the case of an employment contract with a fixed term of 12 – 36 months, or more than half the duration of the contract in case of an employment contract with a fixed term of fewer than 12 months. Upon recovery, the employer may consider concluding another employment contract with the employee;

In the event of a natural disaster, fire, major epidemic, hostility, relocation or downsizing requested by a competent authority, the employer has to lay off employees after all possibilities have been exhausted;

The employee is not present at the workplace after the time limit specified in Article 31 of this Labor Code;

The employee reaches the retirement age specified in Article 169 of this Labor Code unless otherwise agreed by the parties;

The employee quits his/her fails to go to work without acceptable excuses for at least 05 consecutive working days;

The employee fails to provide truthful information during the conclusion of the employment contract in accordance with Clause 2 Article 16 of this Labor Code in a manner that affects the recruitment.

Besides that, when unilaterally terminating the employment contract in any of the cases specified in points a, b, c, dd, and g clause 1 of Article 36, the employer shall inform the employer in advance:

at least 45 days in case of an indefinite-term employment contract;

at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;

at least 03 working days in the case of an employment contract with a fixed term of fewer than 12 months and in the cases stipulated in Point b Clause 1 of this Article;

The notice period in certain fields and jobs shall be specified by the government.

>>> Read more: Implement disciplinary action of dismissing lawfully

>>> Read more: Labor contract in Vietnam

4. What can Apolo Lawyers do for our clients?

There is an overview of terminating the labor contract in Vietnam. But if you have any problems with the termination of labor contracts or anything else about labor and employment, feel free to contact Apolo Lawyers (Tel: (+8428) 66.701.709). With a high – professional and experienced team of lawyers, Apolo Lawyers commits to providing you with optimal service fastly and effectively. Using our labor and employment service, Apolo Lawyers will help you no limited but include the following:

Consulting on the legal provisions on labor contracts such as: type of labor contracts, making and managing labor contracts, labor contracts dispute,…;

Consulting on building internal regulations, registration of labor regulations, internal regulations,…;

Consulting on issues related to a probationary period, probationary salary, disputes over probationary workers…;

Giving legal provisions on termination of labor contracts and unilateral termination of labor contracts;

Giving the provisions of the law on handling labor discipline dismissing workers;

Consulting on social insurance regimes for employees, social insurance procedures for businesses,…

Giving legal provision on collective labor agreements; consulting on registration, use, implementation, and settlement of disputes related to collective labor agreements;

Giving the provisions of the law on labor protection, labor safety;

Consulting to resolve disputes that have arisen and are arising.

For further information, please contact us: Apolo Lawyers