New Decree 31/2021 guiding the implementation of the Investment Law 2020 on the Market Entry of Foreign Investors

The Government has issued Decree 31/2021/ND-CP (Decree 31/2021) which becomes effective on the signing date, 26 March 2021. Decree 31/2021 provides certain appreciable provisions guiding the negative list approach and the application of market entry conditions of the Investment Law 2020. These implementing provisions (as discussed in this post) are expected to provide more certainty and transparency to foreign investors.

This post is written by Ha Thi Dung.

Please download the full pdf version Here

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Communication with a prospective arbitrator by a party in a VIAC arbitration proceeding

Rule 16.4 of VIAC arbitration rules does not allow an arbitrator to privately meet or contact any party relating to the dispute “during arbitration proceeding”. VIAC rules do not regulate the communication between a party with a prospective arbitrator before such party appoints its own candidate. As such, a party in a VIAC arbitration proceedings could arguably have private meeting and discussion with a prospective arbitrator to discuss the dispute. In particular,

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Points To Consider In An Arbitration Clause For A Vietnamese Party In A Contract With A Foreign Party

When a Vietnamese company enters into a contract with a foreign party, the foreign party usually requires the contract to have an arbitration clause so that disputes arising from the contract will be settled by commercial arbitration instead of Vietnamese courts. When negotiating and drafting the arbitration clause of such contract, a Vietnamese company may need to consider the following points:

Governing law of the contract

If the governing law of the contract is Vietnamese law, then selecting arbitration centers in Vietnam may be appropriate since the arbitrators in Vietnam will likely be more familiar with Vietnamese law than arbitrators in other countries. If the governing law is a foreign law, then the Vietnamese party may consider selecting the jurisdictions whose law is more accessible from Vietnam. Based on this criteria, English law would be more favourable for Vietnamese companies since many English law textbooks are available in Vietnam or can be bought from online stores. There are more free internet sources about English law than other laws. In addition, it may easier to find UK qualified lawyers in Vietnam than lawyers from other jurisdictions.

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New Amendments to the Law on Laws 2015 in Vietnam

The National Assembly passed some amendments to the Law on Laws 2015 on 18 June 2020 which will become effective on 1 January 2021 (LPLD 2020). Below are summaries of the new amendments:

  • Two more types of documents are considered as “law” in Vietnam. They are (1) Joint Resolutions between the Standing Committee of the National Assembly, the Government, the Management Board of Central Committee Vietnamese Fatherland Front, and (2) Joint Circulars between Executive Judge of the People’s Supreme Court, the Chief Procurator of the Supreme People’s Procuracy, the State Auditor General, Ministers, Heads of ministerial agencies.

  • The new amendments clearly prohibit the promulgation of Joint Circulars between Ministers and Heads of ministerial agencies. The Law on Laws 2015 does not list joint circulars between Ministers and Heads of ministerial agencies as legal documents. This leads to the fact that despite various arguments on the legitimacy of this type of joint circular, many joint documents have still been enacted by Ministers or Heads of ministerial agencies.

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Written by Nguyen Quang Vu On In