A Detailed Analysis Of Decree 31/2021 Implementing The Investment Law 2020

On 26 March 2021, the Government issued Decree 31 to detail and guide the implementation of the Investment Law 2020 (Decree 31/2021). Decree 31/2021 took effect on the signing date and replaced Decree 118/2015 guiding the Investment Law 2014 and other related documents. Decree 31/2021 provides some notable points which are new in comparison with Decree 118/2015 and other related documents. This post will discuss such new points in details as below.

This post is written by Trinh Phuong Thao and edited by Hoang Thi Thanh Thuy.

Please download the post in pdf here.

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Written by Nguyen Quang Vu On In ,

Can a foreign company retain a Vietnamese person as a service provider, not an employee?

Short answer: Yes, subject to some mitigants of risks as discussed below.

Vietnamese law has no clear-cut distinction between an employment relationship and a commercial relationship (e.g. service agreement). It is because the definitions of employment relationship and employment contract in the Labour Code 2019 are unclear and broad. For instance,

(1) The Labour Code 2019 defines “employment relationship” as social relations arising during the hiring and employment of workers and during wage payment as between employees, the employer, organizations representing the parties and the competent State agency. Under the Commercial Law 2005, “provision of services” is defined as a commercial activity whereby one party (hereinafter referred to as the service provider) is obliged to provide services to another party and receives payment; and whereby the party using the services (hereinafter referred to as the client) is obliged to pay the service provider and to use the services in accordance with an agreement. These definitions are broad and not specific enough to distinguish such relationships. In both cases, there will be an engagement and payment between the hiring party and the hired party.

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Written by Lawyers VNLaw On In

ACCOMMODATION SERVICE BUSINESS WITHIN AN INDUSTRIAL ZONE

To satisfy the actual demand of those working in industrial zones (IZs), recently, more and more investors are exploring possibility to do the accommodation service business (e.g. hotel, condotel, officetel, …) (Accommodation Business) within IZs.

There is however no clear legal basis under Vietnamese laws for the Accommodation Business to be conducted within an IZ. This is because:

a) Decree 82/2018 on IZs prohibits people from residing in the industrial zones, except for foreigners being managers, chief executive officers, and experts who can temporarily reside in an enterprise located within the IZs subject to the satisfaction of certain conditions. For instance:

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Are offshore wind turbines movable or immovable property under Vietnamese law?

1) Introduction

The wind turbines of an offshore wind power project (Offshore WPP) consist of two main types: fixed-bottom and floating. Both types are attached to the seabed either by a foundation or by mooring, respectively (see the image 1 below).. It is not entirely clear if the wind turbines of an Offshore WPP should be considered as an immovable property or movable property under Vietnamese law. This is because it is not clear if the seabed, to which an offshore wind turbine attached, can be considered as “land” under Vietnamese law.

The classification of whether an offshore wind turbine is movable or immovable property could have significant legal impact on an Offshore WPP. For example,

  • immovable property attached to land can only be mortgaged to licensed credit institutions in Vietnam (not to foreign lenders); and

  • certain contracts relating to immovable property attached to land (e.g., title transfer contracts, lease contracts, or mortgage contracts) must be governed by Vietnamese law being the law of the country where the immovable property is located.

In this post, we will discuss in detail as to whether an offshore wind turbine is movable or immovable property. This post is written by Tran Duc Long, Le Thanh Nhat, and Nguyen Quang Vu.

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Written by Nguyen Quang Vu On In