I. Decree No. 10/2023/ND-CP
Constituting the legal basis for issuing Certificate of condotels and officetels
Decree 10/2023/ND-CP issued by the Government on 03 April 2023 aiming to amend and supplement several articles of the Decrees guiding the implementation of Land Law, took effect from 20 May 2023 (“Decree 10”). The remarkable point of Decree 10 is the constituting of legal basis for issuing Certificate for construction works such as condotels and officetels – an inadequacy and entanglement exist in practice; more details are below:
It can be seen that the practice of issuing Certificates of ownership for construction works such as tourist apartments (condotels) or accommodation offices (officetels) in the localities in the past time has witnessed many puzzles and difficulties due to lack of clear legal framework, thereby causing the legitimate rights and interests of the investor as well as the transferee to be greatly affected. Decree 10 resolved the above-mentioned inadequacies by supplementing specific provisions to adjust such problems.
Accordingly, for construction on commercial and service land that is used for tourist accommodation purposes in accordance with the laws on tourism, if all conditions as prescribed by the laws on land, laws on construction, and laws on real estate business are satisfied, it will be certified the ownership of construction works attached to land pursuant to the purpose of commercial and service land use.
With the above-mentioned provisions, from now on, types of condotels, officetels, resort villas, hotel apartments and other constructions for accommodation and tourism on commercial and service land shall be granted Certificate in case of qualifying.
In addition, buyers also need to note that the ownership period of the construction shall depend on the land use purpose, specifically, it is not exceeding 50 years for the land allocated or leased by the State for commercial and service purposes. Therefore, when being granted the Certificate of ownership, the buyer is only allowed to use the land and own the apartment during the remaining land use period of the investor, rather than stable and long-term as residential land.
Furthermore, to be granted a Certificate, on a case-by-case basis, the required documents are the project approval decision, the project investment decision, the investment license, the investment certificate, construction permit issued by competent authority, and documents on land use rights in accordance with the provisions of laws on land, etc.
With the regulations on removing legal obstacles for issuing Certificate of ownership as mentioned, Decree 10 garnered considerable interest from businesses, investors, and legal professionals as soon as it was published.
II. Decree No. 17/2023/ND-CP
Decree No. 17/2023/ND-CP dated 26 April 2023 of the Government elaborating several articles and enforcement measures of Intellectual Property Law on copyright and related rights, took effect as of 26 April 2023 (“Decree 17”), replacing Decree No. 22/2018/ND-CP dated 23 February 2018; Decree 17 is evaluated to bring many progressive amendments and supplements in the enforcement of copyright and related rights in Vietnam, below are some outstanding and important policies of Decree 17:
Firstly, the mechanism to determine the subject of copyright and related rights protection when they are not registered at the competent authority
One of the numerous new points that have drawn significant attention in Decree 17 relating to the basis for determining the subject of copyright and related rights protection in the absence of registration at competent authority. In this case, copyright and related rights shall be identified under the presumption of copyright and related rights.
Specifically, Decree 17 stipulates that in civil, administrative, and criminal proceedings on copyright and related rights, individuals and organizations named as authors, performers, producers of audio recordings and video recordings, broadcasting organizations, producers of cinematographic works, publishers shall be identified as rights holders to works, performances, audio recordings, video recordings, broadcasts until proven otherwise.
This provision is one of the effective legal basis for right holders to protect their rights in intellectual property disputes as well as to support dispute resolution for jurisdictions.
Secondly, the responsibility of intermediary service providers is set forth
Decree 17 establishes the responsibility of intermediary enterprises in protecting copyright and related rights on the telecommunication network and Internet; typically setting up the tool to receive requests on removing or preventing access to digital information contents that infringes copyright and related rights; or remove, prevent access to digital information contents when aware that such contents infringe copyright and related rights pursuant to the laws.
It is worth acknowledging that if an intermediary service provider fails to perform or fully comply with the provisions in order to be exempt from legal liabilities, that provider must be jointly responsible for compensating for damage caused by acts of infringing copyright and related rights of service users; or bear the corresponding legal liability as an infringer if directly commits the infringement.
Supplementation of the aforementioned provisions can be seen as a necessary requirement in the context of the relatively lax copyright control of intermediary platforms along with the increasingly prevalent copyright infringement on the Internet. The new regulations in Decree 17 are expected to be a step forward in preventing the infringement of intellectual property rights on the Internet.
With extensive amendments and supplements over the entire process of establishing, protecting, exploiting, and infringing settlements, Decree 17 is expected to enhance the efficiency in enforcing copyright and related rights in Vietnam together with overcoming the current inadequacies and backlogs.
III. Decree No. 18/2023/ND-CP
Decree No. 18/2023/ND-CP issued by the Government on 28 April 2023 (“Decree 18”) amending and supplementing several articles of Decree 40/2018/ND-CP (“Decree 40”) on the management of multi-level marketing business, which officially came into force as of 20 June 2023, the following are some notable modifications of Decree 18:
Firstly, supplementing conditions for registration of multi-level marketing business for enterprises having foreign investors
If the organization registers for multi-level marketing business is an enterprise having foreign investors or foreign-invested economic organization as the owner or members or shareholders, then such the entire of foreign investors or foreign-invested economic organization must have been operating in multi-level marketing business in reality for a minimum of three (03) consecutive years in a country or territory in the world.
The supplement of the abovementioned conditions aiming to the goal of screening foreign investors with experience in multi-level marketing business before entering into Vietnamese market, aiding in lowering the risk of fraud from illegal multi-level marketing enterprises and in preventing potential negative factors.
Secondly, supplementing 02 types of documents in the application dossier for certificate of registration of multi-level marketing business in terms of enterprises having foreign investors, namely:
- Copy of the audited financial statement or a written document certifying the fulfillment of tax or financial obligations for the last three fiscal years to prove the time of multi-level marketing business in reality at least 03 consecutive years in a country or territory in the world; and
- Business license with the content of licensing the exercise of the right to retail distribution, including retail business by multi-level marketing.
Thirdly, supplementing 02 responsibilities of multi-level marketing enterprises compared with the former provisions
First, ensuring at least 20% of revenue from multi-level marketing in a fiscal year from customers who are not participants in multi-level marketing of the enterprise.
This regulation aims to promote multi-level marketing businesses to develop in accordance with the nature of retail distribution activities, bringing goods to consumers instead of only consuming within the system of participants. Thereby contributing to creating a healthy competitive environment, reducing the possibility of negative socio-economic consequences.
Second, not providing information about food by using images, equipment, costumes, names, correspondences of health facilities, health units, doctors, pharmacists, medical staff, testimonials of patients, articles written by physicians, pharmacists, medical staff or not providing information about food with contents posted, cited, quoted or commented on by patients describing foods with therapeutic effects in multi-level marketing business.
Thus, it can be seen that Decree 18 brings a range of regulations to help strengthen the management of multi-level marketing businesses, however, these regulations are not intended to cause difficulties but for the purpose of effective management of multi-level marketing business, creating the legal framework for enterprises to operate transparently and solve the limitations and shortcomings existing in Decree 40.
IV. Circular No. 11/2022/TT-NHNN
Circular No. 11/2022/TT-NHNN issued on 30 September 2023 by the State Bank of Vietnam, took effect as of 01 April 2023 (“Circular 11”), replacing Circular No. 07/2015/TT-NHNN dated 25 June 2015 and Circular 13/2017/TT-NHNN amending and supplementing a number of articles of Circular 07/2015/TT-NHNN regulating on bank guarantees (“Circular 07”). A summary of some noteworthy new Circular 11 regulations is provided below:
Firstly, providing the legal framework regarding guarantee activities for the off-the-plan houses
Accordingly, only commercial banks that satisfy all conditions (i) the license of establishment and operation or its amendments and supplements stipulate the contents of bank guarantee activities; and (ii) not being prohibited, restricted, suspended, or temporarily suspended from off-the-plan house guarantee then be allowed to provide guarantees for off-the-plan house. More specifically, the State Bank will publicly announce the list of commercial banks with sufficient capacity from time to time in the Web Portal of the State Bank for convenient searching and tracking.
In addition, the decision to grant a guarantee is only contemplated and decided after the investor meets the requirements set forth by the customer (apart from the situation in which commercial banks provide a guarantee to the investor based on a reciprocal guarantee) and investor’s project fully complies with the requirements for the off-the-plan real estate to be put into operation in accordance with the law. When all requirements are met, the grant of the guarantee will take place in the following sequence:
Step 1: The investor requests to issue a guarantee for the off-the-plan house, in accordance with such requests, the commercial bank contemplates, appraises, and decides to grant guarantee to the investor;
Step 2: Commercial bank and the investor sign a guaranteed contract for the off-the-plan house in compliance with the regulations;
Step 3: After signing the contract for purchase, lease-purchase of house, the investor sends the contract to the commercial bank to request for issuance of a letter of guarantee to the buyer;
Step 4: Commercial bank, based on the contract for purchase, lease-purchase of house, and the guarantee contract of off-the-plan house, issues a guarantee letter and sends it to each buyer or to the investor for corresponding distribution as agreed.
Secondly, commercial banks are not allowed to provide guarantees for bond payment obligations
Accordingly, credit institutions and foreign bank branches are not allowed to guarantee the bond payment obligations of the issuers for the following 03 purposes:
- First, restructuring the debt of the issuer itself;
- Second, contributing capital, buying shares in other enterprises;
- Third, aiming to increase the operating capital scale.
As can be seen from the information above, Circular 11 provides precise and transparent regulations to help ensure safety in bank guarantee activities of credit institutions, foreign bank branches, and foreign banks as well as satisfying the practical requirements. Thereby indirectly supporting the growth of the economy as a whole and business investment activities in particular.
V. Circular No. 02/2023/TT-BXD
Circular No. 02/2023/TT-BXD guiding a number of contents on construction contracts issued by the Minister of Construction on 03 March 2023 (“Circular 02”), took effect on 20 April 2023, below are the updated information regarding the adjustment of unit prices and prices of construction contracts and the attached construction contract templates – two notable new points that have drawn a lot of attention recently:
Firstly, regarding the adjustment of unit prices and prices of construction contracts
Circular 02 prescribes 02 specific methods of price adjustment, which are (i) Method of using the price adjustment coefficient; and (ii) Method of directly offsetting. Accordingly, the application of price adjustment methods should be appropriate to the nature of the work, type of contract price, and payment currency and it is important that these methods must be specified in the contract.
In addition, Circular 02 also stipulates that when adjusting construction contract prices resulting in modifying the contract, then it must execute the appendix as the basis for modification. At that time, the investor bears the liability for approving or submitting for approval the adjusted and arising cost estimate in accordance with the provisions of laws and the construction contract, grounding for appendix execution.
Secondly, regarding the construction contract templates attached to Circular 02
Circular 02 announces 03 templates of construction contracts to apply for the relationship between the investors and the contractors, which are:
- Construction consultancy contract template;
- Construction contract template; and
- EPC contract template.
In case the principal is a general contractor, main contractor, or in terms of simple and small-scale contracts, construction-investment consultancy contracts, and other mixed contracts, the parties refer to and use necessary contents of the template contract to set out and manage of contract performance in accordance with their specific relationship, however, Circular 02 also stipulates a number of necessary contents must be mutual agreed in order to comply with the provisions of the Construction Law such as a payment term, payment currency and form of payment, contract performance guarantee period, etc.
On the other hand, it should be noted that Circular 02 regulates and applies to construction contracts in projects using public investment capital, state capital, or investment projects under the regime of public-private partnership. Therefore, for projects using other capital sources, the abovementioned construction contract templates in particular, or other provisions in general, are for related parties in establishing and managing the construction contract to have a reference only.
In general, Circular 02 evidences in synchronization of legal framework as well as issuing open regulations, which is expected to promote efficiency and reduce violations in the application of regulations in the construction field.
