Coronavirus outbreak - Definition of Force Majeure Events under Vietnamese law

In the last few months, the Coronavirus (Covid 19) outbreak has adversely affected the health and lives of millions of Vietnamese people and billions of people all over the planet. The outbreak also hurts the commercial life of hundreds of thousands of Vietnamese companies. Inevitably, parties to commercial contracts will now have to consider whether they can be exempt from liabilities on the ground of force majeure if they cannot perform contracts due to Coronavirus outbreak.

In a series of posts, we will now discuss the force majeure regime under Vietnamese law and its connection with Coronavirus outbreak. The first post will address how a force majeure event is defined under Vietnamese law and whether the coronavirus outbreak could qualify as a force majeure event. This post is written by Nguyen Quang Vu and Tran Thuy Tien.

In summary,

  • On its face, the definition of force majeure event under Vietnamese law contains three usual elements of a force majeure event which are objectivity, unforeseeability, and irresistibility. However, it is not clear if the coronavirus outbreak could satisfy all the elements of a force majeure event under the Civil Code 2015.

  • In Vietnamese, “objectivity” (khách quan) means (1) something which cannot be controlled by people’s mind, or (2) something which is based on factual events. Accordingly, a self-induced event may still qualify as an event, which occurs in an objective manner.

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Written by Nguyen Quang Vu On In , ,

Decree 10/2020 and ride-hailing platforms in Vietnam

On 17 January 2020, the Government issued a new Decree (Decree 10/2020) to replace Decree 86 dated 10 September 2014 (Decree 86/2014) regulating road transportation services by cars. This new Decree introduces updated regulations to govern a growing number of ride-hailing platforms in Vietnam (or at least the parts of such platforms associated with automobile transportation).

Previously, Grab Company Limited (Grab VN) is permitted by the Ministry of Transportation to act as an intermediary connecting automobile transport business entities and passengers to provide its automobile ride-hailing platform (i.e., GrabCar). With the new Decree 10/2020, if Grab VN (and other entities conducting similar business) directly manages vehicles or chauffeurs, or determines the transport fare, they would be considered as conducting transportation by automobile business instead as “conducting business of transport by automobile” (kinh doanh vận tải bằng xe ô tô) is defined as: the act of performing at least one of the main steps of transport activities (being directly managing vehicles and chauffeurs, or determining the transport fare) in order to transport passenger or goods on road for profit.

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Written by Nguyen Quang Vu On In ,

THE LAW ON ANTI HARMFUL EFFECT OF ALCOHOL 2019

For the first time, the Law on Prevention and Control of Harmful Effects of Alcohol Beverages (Law on Anti Alcohol 2019) was adopted by the National Assembly on 15 June 2019. Law on Anti Alcohol 2019 will take effect from 1 January 2020. Below are summaries of certain key issues of this:

·        The Law on Anti Alcohol 2019 provides new definition of spirit and beer; Accordingly, the scope of spirit in Law on Anti Alcohol 2019 is wider than that of Decree 105/2017 and includes spirits of less than 5% ABV;

·        Driving with alcoholic content in the blood or breath is prohibited regarless of the quantity of alcoholic content in the blood or breath;

·        Sales promotion of spirit and beer having 15% and more ABV are prohibited. However, it should be noted that under Decree 81/2018, promotion of all  spirits are prohibited regardless of its ABV level;

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Written by Nguyen Quang Vu On In

Rules of origin for goods manufactured in Vietnam market

In recent years, there have been various cases where manufacturers of goods using imported components in Vietnam are held to have violated the rules of origin when using the phrase “Made in Vietnam” (e.g., Asanzo, KhaiSilk, and Seven.am). Therefore, it is important to understand the rules of origin applicable for goods sold in Vietnam market. In this post, we will discuss the rules of origin under Vietnam domestic law and the rules of origin under the ASEAN Trade in Goods Agreement (ATIGA).

The rules of origin applicable to imported and exported goods between ASEAN countries (including Vietnam) (ASEAN Goods) are provided under ATIGA. Whereas, under Vietnamese laws, there is no legal framework for determining the origin of goods manufactured and sold within Vietnam territory (Vietnam Domestic Goods). In particular, it is not clear which conditions or standards Vietnam Domestic Goods must satisfy so that they can be labelled “products of Vietnam”, “made in Vietnam” or the like.

According to Article 2(d) and Article 3(c) of WTO’s Agreement on Rules of Origin, WTO members must ensure that the rules of origin that they apply to imports and exports are no more stringent than the rules of origin they apply to determine whether or not a good is domestic. This means that Vietnam Domestic Goods are always subject to equal or more stringent rules of origin than those applicable to imports and exports (currently provided in Decree 31 of the Government dated 8 March 2018 detailing the Law on Foreign Trade Management on product origin (Decree 31/2018)).

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Written by Nguyen Quang Vu On In