Law of agency in Vietnam

Under the Civil Code 2005, in an agency relationship where a person (the authorised representative) acts on behalf of another person (the principal),

• an authorised representative may only perform civil transactions within his or her scope of representation;
  

• an authorised representative must inform third parties in civil transactions of the scope of his or her representation;
  

• an authorised representative may not establish or perform civil transactions with him-self or herself, or with a third party for whom the representative also acts, unless the law provides otherwise;
  

• an agency relationship may terminate if the legal representative of the legal entity rescinds the authorisation or the authorised person renounces the authorisation;
  

• an agency relationship can be established through an unilateral power of attorney given by the principal in favour of the agent  or a contract of authorisation between the principal or the agent;
  

• a contract of authorisation has a default term of one year unless otherwise agreed by the parties or provided by law.  It is not clear if this rule also applies to an authorisation given by way of an unilateral power of attorney;
  

• in the context of a contract of authorisation, sub-authorisation is permitted if the principal agrees so.  It is not clear if sub-authorisation is permitted in the context of an unilateral power of attorney; and
  

• there is no apparent authority doctrine in Vietnamese agency law. Under common law system, apparent authority refers to a situation where a reasonable person would understand that an agent had authority to act. This means a principal is bound by the agent's actions, even though the agent had no actual authority, whether express or implied. However, in Vietnam, a transaction established by an authorised representative which is outside of the scope of authorisation may not bind the principal.
  

Applicability of Vietnamese Internet Regulations to foreign website

An offshore website may be subject to Vietnamese internet regulations in certain cases. In particular,

• under Decree 72/2013, foreign organizations and individuals must comply with applicable Vietnamese laws in case public information provided by such foreign organizations and individuals involve users in Vietnam or access from Vietnam.  Public information is defined as information which is stored, transmitted, collected and processed via the network and made public to all entities without the need to identify specific name or address of such entities; and

• an offshore website which provides a platform to connect Vietnamese users or to allow Vietnamese users to share information may be subject to regulations on social network in Vietnam. 

Privacy law in Vietnam – Website users’ information

Users’ information as personal information

Under Vietnamese laws, users’ information such as names, email addresses, passwords and date of birth could be classified as “personal information” (thông tin cá nhân). In particular,

(a)          Under Decree 72/2013, personal information is defined as information  which  is  attached  to  the  identification  of  the  identity  and personal  details  of  an  individual  including name,  age,  address,  people's  identity  card  number, telephone number, email address and other information as stipulated by law;

(b)          Under Circular 25/2010,  personal information means information sufficient to precisely identify an individual, which includes at least one of the following details: full name, birth date, occupation, title, contact address, email address, telephone number, identity card number and passport number. Information of personal privacy includes health record, tax payment record, social insurance card number, credit card number and other personal secrets.  Circular 25 applies to the collection and use of personal information by websites operated by Vietnamese Government authorities. Circular 25 is not directly applicable to the collection and use of personal information by websites operated by non-Government entities. However, the provisions of Circular 25 could be applied by analogy. In addition, it is likely that a non-Government entity will be subject to the same or more stringent standards than those applicable to a Government entity; and

(c)           Under Decree 52/2013,  personal information is information contributing to identifying a particular individual, including his/her name, age, home address, phone number, medical information, account number, information on personal payment transactions and other information that the individual wishes to keep confidential, excluding work contact information and other information that the individual himself/herself has published in the mass media.   

Users’ information as “secret of private life”

The Civil Code provides that an individual’s rights to “secrets of his/her private life” (bí mật đời tư) must be respected and shall be protected by law”. The Civil Code does not define what constitutes a secret of private life. However the following provisions may shed some lights on the meaning of secret of private life:

(a)          Decree 185/2013  defines “personal secrets” of a consumer to mean information pertaining to personal consumers in which consumers or relevant organizations or individuals have applied security measures, if such information is disclosed or used without their prior consents, such disclosure or use will cause negative effects on their health, lives, properties or other physical or mental damages to consumers.

(b)          Decree 52/2013 seems to suggest personal secrets to mean personal information that the relevant person wishes to keep confidential; and            

(c)           Circular 25/2010 considers health record, tax payment record, social insurance card number, credit card number and other personal secrets to be personal secrets.

In addition, in Vietnamese, the word “secrets” (bí mật) is usually understood as something which is being kept confidential and which is not disclosed to outsiders.  The word “private life” (đời tư) is usually understood as something that relates to one person only rather than things that are public or known to others.

In light of the above, if the user does not take measures to keep his user’s information confidential then such information may arguably not be regarded as “secrets of private life”. If this were the case, they would not be subject to the protection conferred by Article 38.1 of the Civil Code. In practice, other than passwords, an individual generally does not keep his/her name, email addresses or, except for very limited circumstances, date of birth confidential. Therefore, in general, passwords could be considered as secret of private life.

Users’ information as State secret

The Ordinance on State Secrets  defines State secrets as “information on cases, affairs, documents, objects, venues, time, speech, carrying important contents in the fields of politics, national defense, security, external affairs, economy, science, technology and other fields, which the State does not publicize or has not yet publicized and the disclosure of which will cause harm to the State of the Socialist Republic of Vietnam”. The definition of State secrets is very broad and general may cover certain personal information of certain individuals. For example,

(a)          unpublished details of high ranking State and political leaders may be regarded as “top secrets”; 

(b)          “information concerning deposits and other deposited property of customers at credit institutions”, and “customer codes used for identifying individual payment cards of the payment card users, credit cards and other types of cards used in banking operations; and passwords of computer users for remote access systems in banking sectors may be regarded as secret;  and

(c)           personal data of various State officials (especially those at high level positions or those working in sensitive sectors or organizations) may be regarded as secret.

Therefore, in theory, in certain limited scenario, website users’ information collected by a website operator may constitute State secret under Vietnamese law.

“Legal capital” for companies in Vietnam

In other countries, legal capital is often understood to be “the amount of a company's equity that cannot legally be allowed to leave the business and cannot be distributed through a dividend or any other means. The closest meaning to this under Vietnamese law is “charter capital”.

However, for a Vietnamese company, the term “legal capital” has a different meaning than it is usually understood in other countries. Currently, under the Enterprise Law, “legal capital” (vốn pháp định) is defined as the minimum amount of capital required by law for the establishment of an enterprise engaging in certain conditional business (e.g. real estate, banking or securities). “Charter capital” is the amount actually contributed or will be contributed by the shareholders of a company. Therefore, the “charter capital” must be at least equal to the “legal capital”, and in most cases are much higher than the “legal capital”. Usually, legal capital is fixed at a specific number. For instance, an entity engaged in real estate business must have a “legal capital” of VND 6 billion. This means that the entity must have a charter capital of VND 6 billion or more.

The above difference may cause certain confusion when interpreting Vietnamese law. For example,

• Before 1 July 2006, for foreign-invested enterprises, under the old Foreign Investment Law, the term “legal capital” is defined to mean the equity capital contributed (or to be contributed) by the investors in a foreign invested enterprise. Certain laws or regulations still use the term “legal capital” in this sense. These laws and regulations are usually issued before 1 July 2006. However, by mistakes, some laws or regulations issued after 1 July 2006 still use the term “legal capital” in this sense (e.g. the amendment to the Law on Cinematography issued in 2009).

• The WTO Commitments of Vietnam also contain various references to “legal capital” in the context of applicable foreign ownership limits. Again the term “legal capital” in this context should be understood as “charter capital”.  

That being said, there is no express guidance about how to interpret the term “legal capital” used in the above scenarios. Therefore, if the authority happens to take a restrictive view then the foreign ownership limit in certain sectors provided in the WTO Commitments or certain laws and regulations may be subject to a much lower limit.