NATIONAL ASSEMBLY
No. 36-2005-QH11
COMMERCIAL LAW
Pursuant to
the 1992 Constitution of the Socialist Republic of Vietnam as amended and
supplemented in accordance with Resolution 51-2001-QH10 dated 25 December 2001
of Legislature X of the National Assembly in its 10th session;
This Law provides for commercial activities.
Chapter 1
General Provisions
Section 1
Governing Scope and Applicable Entities
Article
1 Governing scope
1. Commercial
activities conducted within the territory of the Socialist Republic of Vietnam.
2. Commercial
activities conducted outside the territory of the Socialist Republic of Vietnam
in cases where the parties agree to select application of this Law or of
foreign law or an international treaty to which the Socialist Republic of
Vietnam is a member and which stipulates application of this Law.
3. Activities
not for profit making purposes of one party to a transaction with a business
entity in the territory of the Socialist Republic of Vietnam in cases where the
former party conducting such activities not for profit making purposes selects
application of this Law.
Article 2 Applicable entities
1. Business
entities conducting commercial activities as prescribed in article 1 of this
Law.
2. Other
organizations and individuals conducting acts relating to commerce.
3. Based
on the principles of this Law, the Government shall provide specific
regulations on the applicability of this Law to individuals who conduct
commercial activities independently and frequently but who are not required to
have business registration.
Article 3 Interpretation of terms
In this Law, the following
terms shall be construed as follows:
1. Commercial
activity means activity for profit making purposes comprising purchase and
sale of goods, provision of services, investment, commercial enhancement and
other activities for profit making purposes.
2. Goods
comprises:
(a) All types of moveable assets including
moveable assets to be formed in the future;
(b) Objects attached to land.
3. Commercial usage means rules of conduct
with clear contents which have been established between parties and repeated
many times over a long period, and which are taken for granted and recognized
by the parties as fixing their rights and obligations in their commercial
activities.
4. Commercial
practice means a custom which is widely recognized in commercial activities
in any one area, region or commercial sector, and with clear contents which is
recognized by the parties as fixing their rights and obligations in commercial
activities.
5. Data
message means information created, sent, received and saved by electronic
means.
6. Representative
office of a foreign business entity in
7. Branch
of a foreign business entity in
8. Purchase
and sale of goods means a commercial activity whereby the seller is obliged
to deliver goods, transfer ownership in the goods to the buyer and receive
payment; and whereby the buyer is obliged to pay the seller, and receive
delivery of and ownership in the goods in accordance with an agreement.
9. Provision
of services means 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.
10. Commercial
enhancement means activities promoting and seeking opportunities for the
purchase and sale of goods and for the provision of services, comprising
promotional activities, commercial advertising, displays and introductions of
goods and services, and trade fairs and exhibitions.
11. Commercial
intermediary activities mean activities conducted by business entities in
order to carry out commercial transactions for one or more specified traders,
and comprises representation of business
entities, commercial brokerage, purchase and sale of goods by authorized
dealers, and commercial agency.
12. Breach
of contract means one party fails to perform, fails to perform fully or
performs incorrectly an obligation in accordance with an agreement of the
parties or in accordance with this Law.
13. Fundamental
breach means breach of contract by one party causing loss to the other
party to the extent that such other party is unable to achieve its objective in
entering the contract.
14. Origin
of goods means the country or territory where the goods were totally manufactured,
or where the final and fundamental processing stage was implemented in respect
of goods for which a number of countries or territories participate in the
manufacturing process.
15. Forms
with validity equivalent to that of a written document comprises
telegraphs, telexes, facsimiles, data messages and other forms pursuant to law.
Article
4 Applicability of Commercial
Law and other relevant laws
1. Commercial
activities must comply with the Commercial Law and other relevant laws.
2. In
the case of specialized commercial activities as prescribed in another law, the
provisions of such other law shall apply.
3. The
provisions of the Civil Code shall apply to a commercial activity which is not
governed by provisions in the Commercial Law or by provisions in other laws.
Article 5 Applicability of
international treaties, foreign law and international commercial practice
1. Where
an international treaty to which the Socialist Republic of Vietnam is a member
contains provisions applying foreign law, international commercial practice or
other provisions which are inconsistent with the provisions of this Law, then
the provisions of such international treaty shall apply.
2. Parties
to a commercial transaction with a foreign element may agree to apply foreign
law or international commercial practice if such foreign law or international
commercial practice is not contrary to the fundamental principles of the law of
Article 6 Business entities
1. Business
entities shall comprise economic organizations which have been lawfully
established and individuals who conduct commercial activities independently and
frequently and who have business registration.
2. Business
entities shall have the right to conduct commercial activities in professions
and trades, in areas, in forms and in accordance with methods which the law
does not prohibit.
3. The
State shall protect the right of business entities to conduct lawful commercial
activities.
4. The
State shall exercise a State monopoly for a limited duration over commercial
activities with respect to a number of goods and services or in a number of
areas in order to ensure the national interest. The Government shall provide
the specific list of goods, services and areas over which the State has a
monopoly.
Article 7 Obligation of business entities to conduct
business registration
Business entities shall be
obliged to conduct business registration in accordance with law. Any business
entity which has not yet conducted business registration shall still be liable
for all its commercial activities in accordance with this Law and other
relevant laws.
Article
8 State administrative body for
commercial activities
1. The
Government shall exercise uniform State administration of commercial
activities.
2. The
Ministry of Trade shall be responsible before the Government for exercising
State administration of activities of the purchase and sale of goods and of the
specific commercial activities regulated in this Law.
3. Ministries
and ministerial equivalent bodies shall, within the scope of their respective
duties and powers, be responsible for exercising State administration of
commercial activities in the sectors assigned to them.
4. People's
committees at all levels shall exercise State administration of commercial
activities within their respective localities as delegated by the Government.
Article
9 Commercial associations
1. Commercial
associations shall be established in order to protect the lawful rights
and interests of business entities, to encourage business entities to
participate in the development of commerce, and to disseminate and popularize
the law on commerce.
2. Commercial
associations shall be organized and operate in accordance with law.
Section 2
Fundamental Principles in Commercial Activities
Article 10 Principle of
equality before the law amongst business entities conducting commercial
activities
Business entities from all
economic sectors shall be equal before the law during commercial activities.
Article 11 Principle of free
and voluntary agreement in commercial activities
1. Parties
shall have the right to freely reach agreements which are not inconsistent with
law, fine customs and social ethics in order to fix their rights and
obligations in commercial activities. The State shall respect and protect these
rights.
2. Parties
shall act completely voluntarily in commercial activities, and neither party
shall be permitted to take action which imposes its will on, coerces, threatens
or hinders the other party.
Article 12 Principle of
applicability of commercial usage in commercial activities
Unless otherwise
agreed, parties shall be deemed to automatically apply the usage which is
pre-established between them in their commercial activities, which is not
contrary to law and about which the parties knew or should have known.
Article 13 Principle of
applicability of practice in commercial activities
Where the law does not
contain any provision, the parties do not have any agreement and there is no commercial
usage between the parties, then commercial practice is applied but it must not
be contrary to the principles prescribed in this Law and in the Civil Code.
Article 14 Principle of
protection of legitimate interests of consumers
1. Any
business entity conducting commercial activities shall be obliged to provide
consumers with complete and accurate information about the goods and services
in which such business entity conducts business, and shall be liable for the
accuracy of such information.
2. Any
business entity conducting commercial activities shall be liable for the
quality and legality of the goods and services in which such business entity
conducts business.
Article 15 Principle of
recognition of the legal validity of data messages in commercial activities
Data messages which
satisfy the conditions and technical standards stipulated by law shall be
recognized as having legal validity in commercial activities equivalent to that
of a written document.
Section 3
Foreign Business Entities Conducting
Commercial Activities in
Article 16 Foreign business
entities conducting commercial activities in
1. A
foreign business entity means a business entity which was established and which
has business registration in accordance with foreign law or which is recognized
by foreign law.
2. Foreign
business entities shall be permitted to establish representative offices and
branches in
3. Representative
offices and branches of foreign business entities in
4. Enterprises
with foreign owned capital which foreign business entities establish in
Article
17 Rights of representative
offices
1. To
operate strictly in accordance with the purposes, scope and duration stated in
the licence for establishment of such representative office.
2. To
rent offices and to lease or purchase the equipment and facilities necessary
for the operation of the representative office.
3. To
recruit Vietnamese and foreign employees to work for the representative office
in accordance with the law of
4. To
open accounts in foreign currency and in Vietnamese dong sourced from foreign
currency at banks which are licensed to operate in
5. To
have a seal bearing the name of the representative office in accordance with
the law of
6. Other
rights in accordance with law.
Article
18 Obligations of
representative offices
1. Not to directly conduct profit making
activities in
2. Only
to conduct commercial enhancement activities within the scope permitted by this
Law.
3. Not
to enter into commercial contracts of the foreign business entity or to amend
or supplement such contracts already signed except where the head of the
representative office has a valid power of attorney from the foreign business
entity or in the cases stipulated in clauses 2, 3 and 4 of article 17 of this Law.
4. To
pay taxes, fees and charges and to discharge other financial obligations in
accordance with the law of
5. To
report on the operation of the representative office in accordance with the law
of
6. Other
obligations in accordance with law.
Article
19 Rights of branches
1. To
rent offices and to lease or purchase the equipment and facilities necessary
for the operation of the branch.
2. To
recruit Vietnamese and foreign employees to work for the branch in accordance
with the law of
3. To
enter into contracts in
4. To
open Vietnamese dong and foreign currency accounts at banks which are licensed
to operate in
5. To remit profits abroad in accordance
with the law of
6. To
have a seal bearing the name of the branch in accordance with the law of
7. To
conduct activities being the purchase and sale of goods and other commercial
activities consistent with its licence for establishment in accordance with the
law of Vietnam and any international treaty to which the Socialist Republic of
Vietnam is a member.
8. Other
rights in accordance with law.
Article 20 Obligations of branches
1. To
adopt the accounting system stipulated by the law of
2. To
report on the operation of the branch in accordance with the law of
3. Other
obligations in accordance with law.
Article 21 Rights and
obligations of enterprises with foreign owned capital
The rights and
obligations of enterprises with foreign owned capital shall be determined in
accordance with the law of
Article 22 Authority to
grant permission to foreign business entities to conduct commercial activities
in
1. The
Government shall exercise uniform administration of the granting of permission
to foreign business entities to conduct commercial activities in
2. The Ministry of
Planning and Investment shall
be responsible before the Government for exercising administration of the issuance of
licences to foreign business
entities making investments in
3. The Ministry of
Trade shall be responsible
before the Government for exercising administration of the issuance of licences for the
establishment of representative offices of foreign business entities in Vietnam; for the establishment of branches, joint venture enterprises
and enterprises with one hundred (100) per cent foreign owned capital in
Vietnam where such business entities specialize in conducting the purchase and sale of goods or activities
directly related to the purchase and sale of goods in accordance with the law
of Vietnam and consistent with international treaties to which the Socialist
Republic of Vietnam is a member.
4. If a specialized law contains specific provisions on the
authority of a ministry or ministerial equivalent body to be responsible before the Government for
exercising administration of the issuance of licences to foreign business entities conducting commercial activities in
Article 23 Termination of
operations in
1. A
foreign business entity shall terminate its operation in
(a) On expiry of the duration of operation
as stated in the licence;
(b) Where the business entity so requests
and the competent State administrative
body agrees;
(c) In accordance with a decision of the
competent State administrative
body on the ground that there has been
a breach of law and a breach of the provisions in the licence;
(d) Where the business entity is declared
bankrupt;
(dd) Where the foreign business entity
terminates its operation in accordance with foreign law with regard to the
forms of representative office, branch and participation in a business
co-operation contract with a Vietnamese party;
(e) In other circumstances in accordance
with law.
2. Prior
to terminating its operation in
CHAPTER 2
Purchase and
Section 1
General Provisions Applicable to Activities being
Purchase and
Article 24 Form of contracts
for purchase and sale of goods
1. A
contract for the purchase and sale of goods shall be expressed orally, in
writing or shall be determined by specific conduct.
2. Where
a law stipulates that certain types of contracts for the purchase and sale of
goods must be made in writing, those contracts must comply with such law.
Article 25 Goods in which
business is prohibited, goods in which business is restricted, and goods in
which business is subject to conditions
1. Based
on socio-economic conditions from time to time and international treaties to which
the Socialist Republic of Vietnam is a member, the Government shall
specifically provides the list of goods in which business is prohibited, of
goods in which business is restricted, of goods in which business is subject to
conditions and the conditions which must be satisfied in order to conduct
business in such goods.
2. In
the case of goods in which business is restricted and goods in which business
is subject to conditions, such goods shall only be permitted to be purchased
and sold after those goods and the purchaser and seller have fully satisfied
the conditions in accordance with law.
Article 26 Application of
emergency measures to goods circulating in the domestic market
1. Goods
which are currently legally circulating in the domestic market are subject to
application of one or all of the following emergency measures namely mandatory
withdrawal, prohibition on circulation, suspension from circulation,
conditional circulation, or circulation only with a licence, in the following
cases:
(a) Where such goods are the source or means
of transmission of any type of epidemic;
(b) When an emergency situation arises.
2. The
specific conditions, order, procedures and authority to announce application of
emergency measures to goods circulating in the domestic market shall be
implemented in accordance with law.
Article 27 International
purchases and sales of goods
1. International
purchases and sales of goods shall be implemented in the forms of export,
import, temporary import, re-export, temporary export, re-import and bordergate
transfer.
2. International
purchases and sales of goods must be implemented on the basis of a written
contract or in other forms with equivalent legal validity.
Article 28 Export and import
of goods
1. Export
of goods means the act of taking goods out of the territory of Vietnam or
bringing goods into a special zone located within the territory of Vietnam
which is deemed to be an exclusive customs area pursuant to law.
2. Import
of goods means the act of bringing goods into the territory of Vietnam from a
foreign country or from a special zone located within the territory of Vietnam
which is deemed to be an exclusive customs area pursuant to law.
3. Based
on socio-economic conditions from time to time and international treaties to
which the Socialist Republic of Vietnam is a member, the Government shall
specifically provides the list of goods prohibited from import and export, of
goods for which import and export is subject to issuance of a permit by the
competent State body, and the procedures for issuance of permits.
Article 29 Temporary import,
re-export, temporary export and re-import of goods
1. Temporary import and re-export of goods means the act of
bringing goods into Vietnam from a foreign country or from a special zone
located within the territory of Vietnam which is deemed to be an exclusive
customs area pursuant to law, involving completion of procedures for
importation into Vietnam and completion of procedures for exportation of those
same goods out of Vietnam.
2. Temporary export and re-import of goods means the act of
taking goods overseas or into a special zone located within the territory of
Vietnam which is deemed to be an exclusive customs area pursuant to law,
involving completion of procedures for exportation of such goods out of Vietnam
and completion of procedures for re-importation of those same goods back into
Vietnam.
3. The Government shall provide detailed regulations on
temporary import, re-export, temporary export and re-import of goods.
Article 30 Bordergate transfer of goods
1. Bordergate transfer of goods means the act of
purchasing goods from one country or territory in order to sell the goods to
another country or territory outside the
2. Bordergate transfer of goods shall be conducted in the
following forms:
(a) Transportation
of goods directly from the exporting country to the importing country without
passing through the bordergates of
(b) Transportation
of goods from the exporting country to the importing country via the
bordergates of Vietnam but without conducting procedures for import into
Vietnam and for export out of Vietnam;
(c) Transportation
of goods from the exporting country to the importing country via the
bordergates of
3. The Government shall provide detailed regulations on
activities of bordergate transfer of goods.
Article 31 Application of emergency
measures to activities of international purchases and sales of goods
In necessary
cases in order to protect national security and other national interests, and
in conformity with the law of
Article 32 Labelling of goods
circulating domestically and of import and export goods
1. Label means the written form, printed form, drawing or
photo of letters, a picture or an image which is directly glued, printed,
attached, cast, embossed or engraved onto the goods or onto the commercial
packaging of the goods, or onto other material attached to the goods or
attached to the commercial packaging of the goods.
2. Except for a number of cases where the law stipulates
otherwise, all goods circulating domestically and all import and export goods
must have a label.
3. The required contents of labels and the labelling of goods
shall be implemented in accordance with regulations of the Government.
Article 33 Certificates of origin of
goods and rules on origin of goods
1. Import and export goods must have a certificate of origin
in the following cases:
(a) Goods
entitled to tax incentives or other incentives;
(b) As
required by the law of
2. The Government shall provide detailed regulations on the
rules on origin of import and export goods.
Section 2
Rights
and Obligations of Parties to Contracts for Purchase and
Article 34 Delivery of goods and
vouchers relating to goods
1. A seller shall be obliged to deliver goods and vouchers
[relating to the goods] in accordance with the contractual agreements on
quantity, quality, method of packaging and preservation and in accordance with
other clauses in the contract.
2. Where there is no specific agreement, the seller shall be
obliged to deliver the goods and the related vouchers in accordance with this
Law.
Article 35 Place of delivery
1. A
seller shall be obliged to deliver goods to the place of delivery as agreed.
2. Where there is no agreement on place of delivery of the
goods, the place of delivery shall be determined as follows:
(a) Where
the goods are objects attached to land, the seller must deliver the goods at
the location where the goods are situated;
(b) Where
the contract contains a clause on transportation of the goods, the seller shall
be obliged to deliver the goods to the initial carrier;
(c) Where
the contract does not contain a clause on transportation of the goods and if at
the time of entering into the contract the parties knew the location of the
store where the goods were, the location where the goods were loaded or the
location where the goods were manufactured or produced, then the seller must
deliver the goods at such location;
(d) In other
cases the seller must deliver the goods at its business location, or if the
seller does not have a business location then at the seller's residence as determined
at the time of entering into the contract for the purchase and sale of goods.
Article 36 Responsibility when delivery
of goods involves a carrier
1. Where goods are handed over to a carrier but [the goods]
are not clearly identifiable by codes or signs on them, by transportation
vouchers or by other [identifying] means, the seller must notify the buyer that
the goods have been handed over to a carrier and must identify clearly the name
of the goods to be transported and the means of recognizing them.
2. Where the seller is obliged to arrange transportation of
the goods then the seller must sign the contracts necessary to ensure the goods
reach their destination by means of transportation appropriate in the specific
context and in accordance with the normal conditions applicable to such means.
3. Where the seller is not obliged to effect insurance
covering the goods during the period of transportation and if the purchaser so
requests, then the seller must provide the buyer with all relevant and necessary
information about the goods and the transportation of the goods to facilitate
the buyer to arrange insurance for the goods.
Article 37 Time-limit for delivery of
goods
1. The seller must deliver goods at the time of delivery of
goods agreed in the contract.
2. Where there is only an agreement on the time-limit for
delivery of the goods without fixing a specific point of time for delivery, the
seller shall have the right to deliver the goods at any time within that
time-limit but must provide advance notice to the purchaser [of such time].
3. Where there is no agreement on the time-limit for delivery
of the goods then the seller must deliver the goods within a reasonable period
of time after the contract is entered into.
Article 38 Delivery of goods
earlier than the agreed time-limit
If the seller delivers the
goods earlier than the agreed time-limit then the purchaser shall have the
right either to accept or not to accept the goods, unless the parties agree
otherwise.
Article 39 Goods which do not conform
with the contract
1. Where
the contract does not contain any specific clause [on this issue], goods shall
be deemed not to conform with the contract if the goods belong to one of the
following cases:
(a) The goods are unfit for the ordinary use
purpose of goods in the same category;
(b) The goods are unfit for any specific
purpose about which the purchaser informed the seller or about which the seller
should have known at the time of entering into the contract;
(c) The goods are not of the same quality as
sample goods previously provided by the seller to the purchaser;
(d) The goods were not preserved or packed
in the usual manner applicable to other goods in the same category, or not in
an appropriate way for goods preservation if there is no usual manner for
preserving such goods.
2. A
purchaser shall have the right to refuse acceptance of goods which do not
conform with the contract as prescribed in clause 1 of this article.
Article 40 Liability for goods which do
not conform with the contract
Unless the
parties agree otherwise, liability for goods which do not conform with the
contract shall be regulated as follows:
1. The
seller shall not be liable for any defect in the goods if at the time of
entering into the contract the purchaser knew or should have known such defect.
2. Except
for the case prescribed in clause 1 of this article, within the time-limit for
lodging a complaint as set out in this Law the seller shall be liable for any
defect in the goods which existed prior to the time risk passed to the
purchaser, including where such defect is discovered after the time risk
passed.
3. The
seller shall be liable for any defect in the goods arising after the time risk
passed if such defect results from a breach of contract by the seller.
Article 41 Remedy for
delivery of insufficient goods and for delivery of goods which do not conform
with the contract
1. Unless
the parties agree otherwise, where the contract only stipulates the time-limit
for delivery of the goods without fixing a specific point of time for delivery
and the seller delivers goods before the expiry of the said time-limit but
delivers insufficient goods or delivers goods which do not conform with the
contract, then the seller shall still be permitted to deliver the outstanding
quantity of goods, or to replace the [incompatible] goods with goods which do
conform with the contract or to remedy the incompatibility of the goods within
the remainder of such time-limit.
2. Where
the seller exercises his remedy as prescribed in clause 1 of this article but
thereby creates a disadvantage for the purchaser or causes the purchaser to
incur unreasonable expenses, then the purchaser shall have the right to require
the seller to remedy such disadvantage or to pay such expenses.
Article 42 Delivery of
vouchers relating to the goods
1. If
there is an agreement on delivery of vouchers, the seller shall be obliged to
deliver the vouchers relating to the goods to the purchaser within the
time-limit, at the location and in the manner agreed .
2. If
the contract does not contain any clauses on the time-limit and location for
delivery of vouchers relating to the goods to the purchaser, then the seller
shall be obliged to deliver such vouchers to the purchaser at a reasonable time
and location to enable the purchaser to accept the goods.
3. Where
the seller delivers vouchers relating to the goods before the expiry of the
agreed time-limit, then the seller shall be permitted to rectify any errors in
such vouchers within the remainder of such time-limit.
4. Where
the seller exercises his remedy as referred to in clause 3 of this article but
thereby creates a disadvantage for the purchaser or causes the purchaser to
incur unreasonable expenses, then the purchaser shall have the right to require
the seller to remedy such disadvantage or to pay such expenses.
Article 43 Delivery of goods
in excess
1. If
the seller delivers goods in excess, the purchaser shall have the right to
reject or to accept the amount of goods in excess.
2. If
the purchaser accepts the amount of goods in excess, the purchaser must pay for
such goods at the price agreed in the contract, unless the parties agree
otherwise.
Article 44 Examination of
goods prior to delivery
1. If
it is agreed by the parties that the purchaser or his representative shall
conduct an examination of the goods prior to delivery, the seller must ensure
the conditions which will facilitate the buyer or his representative to conduct
such examination.
2. Unless
the parties agree otherwise, in a case prescribed in clause 1 of this article
the purchaser or his representative must examine the goods within the shortest
period of time which is practically possible in the context. If the contract contains a clause on
transportation of the goods, the
examination may be postponed until the time when the goods are
transported to their destination.
3. If
the purchaser or his representative fails to conduct an examination of the
goods prior to delivery as agreed in the contract, the seller shall have the
right to deliver the goods pursuant to the contract.
4. The
seller shall not be liable for any defect in the goods about which the
purchaser or his representative knew or should have known and failed to notify
to the seller within a reasonable time after conducting the examination of the
goods.
5. Where
the purchaser or his representative have examined the goods, the seller shall
remain liable for any defect in the goods which could not have been discovered
during the examination by normal means and about which the seller knew or
should have known and failed to notify to the purchaser.
Article 45 Obligation to
guarantee ownership of goods
A seller must ensure that:
1. Ownership
by the purchaser of the goods sold is not subject to any dispute with a third
party.
2. The
goods are legal.
3. The
transfer of the goods is legal.
Article 46 Obligation to
guarantee intellectual property rights in goods
1. A
seller shall not be permitted to sell goods which infringe intellectual
property rights. A seller shall be liable in a case where there is a dispute
involving intellectual property rights in the goods sold.
2. If
the purchaser requires the seller to comply with technical drawings, designs,
formulae or other detailed data supplied by the purchaser, then the purchaser
shall be liable for any complaint about infringement of intellectual property
rights arising as a result of the seller's compliance with such requirements of
the purchaser.
Article 47 Requirement to
provide notice
1. The
seller shall lose the right to invoke the provision in clause 2 of article 46
of this Law if the seller fails to immediately notify the purchaser of any
complaint by a third party made about the delivered goods after the seller knew
or should have known about such complaint, except in cases where the purchaser
knew or should have known about such complaint.
2. The
purchaser shall lose the right to invoke the provisions in article 45 and in
clause 1 of article 46 of this Law if the purchaser fails to immediately notify
the seller of any complaint by a third party made about the delivered goods
after the purchaser knew or should have known about such complaint, except in
cases where the seller knew or should have known about such complaint.
Article 48 Obligation of the
seller in cases where the goods are used as security for the performance of a
civil obligation [1]
Where the goods
sold are used as security for the performance of a civil obligation then the
seller must notify the purchaser about such security and the sale of the goods
must be agreed by the beneficiary of the security.
Article
49 Obligation to provide a
warranty for the goods
1. Where
goods which are purchased and sold are under warranty, the seller shall be
liable for the goods pursuant to the contents and for the period agreed [in the
warranty].
2. The
seller must discharge the warranty obligations within the shortest period of
time which is practically possible.
3. The
seller must bear all expenses relating to the warranty, unless the parties
agree otherwise.
Article 50 Payment
1. The
purchaser shall be obliged to pay the purchase price of the goods and to accept
delivery of the goods as agreed.
2. The
purchaser must comply with the mode of payment and must make payment in
accordance with the order and procedures as agreed and in accordance with law.
3. The
purchaser must still pay the purchase price of the goods in a case where the
goods are lost or damaged after the time risk passed from the seller to the
purchaser, unless the loss or damage was caused by the fault of the seller.
Article 51 Suspension of
payment of the purchase price of goods
Unless otherwise
agreed, suspension of payment of the purchase price of goods shall be regulated
as follows:
1. Where the purchaser has proof of fraud on the part of the
seller then the purchaser shall have the right to suspend payment.
2. Where the purchaser has proof that the goods are currently
subject to a dispute then the purchaser shall have the right to temporarily
suspend payment until the dispute has been resolved.
3. Where the purchaser has proof that the seller has delivered
goods which do not conform with the contract then the purchaser shall have the
right to temporarily suspend payment until the seller remedies such
incompatibility.
4. In
cases of temporary suspension of payment as prescribed in clauses 2 or 3 of
this article but the proof produced by the purchaser is inaccurate and loss is
caused to the seller, then the purchaser must pay damages for such loss and
must submit to application of other remedies stipulated in this Law.
Article 52 Determination of
price
Where there is no
agreement on the price of goods, no agreement on the method for determining the
price of goods and no other guidelines at all on price, then the price of goods
shall be determined in accordance with the price of that type of goods under
similar conditions for method for delivery of goods, time of purchase and sale
of the goods, geographical market, mode of payment and other conditions which
affect price.
Article 53 Determination of
price in accordance with weight
If price is
determined in accordance with the weight of goods then that weight shall be net
weight, Unless otherwise agreed.
Article 54 Place of payment
Where there is no
agreement on a specific place of payment then the purchaser must make payment
to the seller at one of the following places:
1. At
the business location of the seller as determined at the time of entering into
the contract, or if the seller does not have a business location then at the
seller's residence.
2. If
payment is to be made concurrently with the delivery of goods or vouchers, at
the place where the goods or vouchers are delivered.
Article 55 Time-limit for
payment
Unless otherwise
agreed, the time-limit for payment shall be regulated as follows:
1. The purchaser must make payment to the seller at the time
when the seller delivers the goods or the vouchers relating to the goods.
2. The purchaser shall not be obliged to make payment until it
has been able to complete the examination of the goods in a case where there is
an agreement as stipulated in article 44 of this Law.
Article 56 Acceptance of
goods
The purchaser
shall be obliged to accept the goods in accordance with the agreement and to
take reasonable action to assist the seller to deliver the goods.
Article 57 Passing of risk
in cases where there is a specified place of delivery
Unless otherwise
agreed, if the seller is obliged to deliver the goods to the purchaser at a
certain location then the risk of loss or damage to the goods shall pass to the
purchaser when the goods have been delivered to the purchaser or when the
person nominated by the purchaser has accepted the goods at such location,
including cases where the seller is authorized to retain the vouchers which
confirm ownership of the goods.
Article 58 Passing of risk
in cases where there is no specified place of delivery
Unless otherwise
agreed, if the contract contains a clause on transportation of the goods and
the seller is not obliged to deliver the goods at a certain location then the
risk of loss or damage to the goods shall pass to the purchaser when the goods
have been handed over to the initial carrier.
Article 59 Passing of risk
in cases where the goods are handed over to a bailee for delivery not being a
carrier
Unless otherwise
agreed, where the goods are currently in the possession of a bailee for
delivery not being a carrier, then the risk of loss or damage to the goods
shall pass to the purchaser in one of the following cases:
1. Upon
acceptance by the purchaser of the vouchers evidencing ownership of the goods.
2. Upon
the acknowledgment by the bailee for delivery that the purchaser has the right
of possession of the goods.
Article 60 Passing of risk
in cases of sale and purchase of goods in transit[2]
Unless otherwise
agreed, where the subject of the contract is goods currently in transit then
the risk of loss or damage to the goods shall pass to the purchaser as from the
time of entering into the contract.
Article 61 Passing of risk
in other cases
Unless otherwise
agreed, passing of risk in other cases shall be regulated as follows:
1. In
cases not covered by the provisions in articles 57, 58, 59 and 60 of this Law,
the risk of loss or damage to the goods shall pass to the purchaser as from the
time the purchaser has the right of disposition of the goods and the purchaser
is in breach of contract for failure to accept the goods.
2. The
risk of loss or damage to goods shall not pass to the purchaser if the goods
are not clearly identifiable by codes or signs on them or by transportation
vouchers, if the goods have not been notified to the purchaser or if the goods
are not able to be verified by any other means.
Article 62 Time of passing
of ownership of goods
Unless otherwise
stipulated by law or unless otherwise agreed by the parties, ownership of goods
shall pass from the seller to the purchaser as from the time the goods are
handed over.
Section 3
Article
63
1. A
purchase and sale of goods via the Commodity Exchange means a commercial
activity by which the parties agree to implement a purchase and sale of a
certain quantity of a certain type of goods via the Commodity Exchange in
accordance with the standards of the Commodity Exchange and at a price agreed
at the time of entering into the contract, and the time of delivery of goods is
determined to be at a future point in time.
2. The Government shall provide detailed regulations on
activities being sale and purchase of goods via the Commodity Exchange.
Article 64 Contracts for the
sale and purchase of goods via the Commodity Exchange
1. Contracts for the sale and purchase of goods via the
Commodity Exchange shall comprise future contracts and option contracts.
2. Future contract
means an agreement whereby the seller undertakes to deliver and the purchaser
undertakes to accept goods at a future point of time according to the contract.
3. Call option or put
option contract means an agreement whereby the option purchaser has the
right to purchase or to be sold a certain [type of] goods at a pre-determined
price (referred to as the contracted
price) and must pay a certain amount of money for the purchase of this
right (referred to as the option price). The option purchaser has the right to opt to
carry out or not to carry out such purchase or sale of such goods.
Article 65 Rights and
obligations of parties to future contracts
1. If the seller implements delivery of the goods pursuant to
the contract then the purchaser shall be obliged to accept the goods and to
make payment.
2. If the parties have an agreement that the purchaser may
make a cash settlement in lieu of accepting the goods[4] then the purchaser must pay
the seller a sum being the difference between the price agreed in the contract
and the market price announced by the Commodity Exchange at the time the
contract is performed.
3. If the parties have an agreement that the seller may make a
cash settlement in lieu of delivering the goods then the seller must pay the
purchaser a sum being the difference between the market price announced by the
Commodity Exchange at the time the contract is performed and the price agreed
in the contract.
Article 66 Rights and
obligations of parties to option contracts
1. The purchaser of a call option or put option must make the
option payment in order to become the party holding the call option or put
option. The sum payable for the purchase of the option shall be the sum as
agreed between the parties.
2. The party holding a call option has the right to purchase
but does not have the obligation to purchase the goods set out in the contract.
If the party holding the call option opts to perform the contract then the seller
shall be obliged to sell the goods to the party holding the call option. If the
seller does not have the goods to deliver, then the seller must pay the party
holding the call option a sum being the difference between the price agreed in
the contract and the market price announced by the Commodity Exchange at the
time the contract is performed.
3. The party holding a put option has the right to sell but
does not have the obligation to sell the goods set out in the contract. If the
party holding the put option opts to perform the contract then the purchaser
shall be obliged to purchase the goods from the party holding the put option.
If the purchaser fails to purchase the goods, then the purchaser must pay the
party holding the put option a sum being the difference between the price
agreed in the contract and the market price announced by the Commodity Exchange
at the time the contract is performed.
4. If the party holding a put option or call option opts not
to perform the contract within the duration of effectiveness of the contract
then the contract shall automatically expire.
Article 67 Commodity
Exchange
1. The
Commodity Exchange shall have the following functions:
(a) To provide the necessary physical -
technical facilities for the conduct of transactions being the purchase and
sale of goods;
(b) To operate transaction activities;
(c) To list specific price rates formed on
the trading market from time to time.
2. The
Government shall provide detailed regulations on the conditions for the establishment
of the Commodity Exchange, on the powers and responsibilities of the Commodity
Exchange and on approval of the operational charter of the Commodity Exchange.
Article 68 Goods to be
traded at the Commodity Exchange
The Minister of
Trade shall provide the list of goods [permitted] to be traded at the Commodity
Exchange.
Article 69 Broker entities in
sale and purchase of goods[5] via
the Commodity Exchange
1. Broker
entities in sale and purchase of goods
via the Commodity Exchange shall only be permitted to operate on the Commodity
Exchange when they have satisfied all the conditions stipulated by law. The
Government shall provide detailed regulations on the conditions for activities
of broker entities in sale and
purchase of goods via the Commodity Exchange.
2. Broker
entities in sale and purchase of goods
via the Commodity Exchange shall only be permitted to conduct brokerage
activities in sale and purchase of goods via the Commodity Exchange and shall
not be permitted to be parties to contracts for purchase and sale of goods via
the Commodity Exchange[6].
3. Broker
entities in sale and purchase of goods
via the Commodity Exchange shall be obliged to pay a deposit to the Commodity
Exchange to guarantee the performance of their obligations arising in the
process of brokerage in sale and
purchase of goods. The amount of the deposit shall be regulated
by the Commodity Exchange.
Article 70 Practices which are prohibited by goods brokers via the
Commodity Exchange
1. Enticing clients to enter into contracts by promising to compensate for
all or part of the loss arising or by guaranteeing profits for customers.
2. Offering
goods or conducting brokerage without contracts with customers.
3. Using
false prices or other fraudulent methods in brokerage for customers.
4. Refusing
to or delaying unreasonably the brokerage of contracts in accordance with the
contents agreed with customers.
5. Other
prohibited practices as stipulated in article 71.2 of this law.
Article 71 Practices which are prohibited during sale and purchase of
goods via the Commodity Exchange
1. Staff of the Commodity Exchange shall not be permitted to conduct
brokerage of, or to purchase or sell goods via the Commodity Exchange.
2. Parties involved in activities of sale and purchase of goods via the Commodity
Exchange shall be prohibited from engaging in the following practices:
(a) Fraudulent
or deceptive conduct regarding the quantity of goods in future contracts and
option contracts being traded or which may be traded, and fraudulent or
deceptive conduct regarding the actual price of types of goods in future
contracts and option contracts;
(b) Provision
of misleading information on transactions, the market or prices of goods sold
or purchased via the Commodity Exchange;
(c) Application
of unlawful measures to disrupt the goods market at the Commodity Exchange;
(d) Other
prohibited practices as stipulated by law.
Article 72 Implementation of
administrative measures in emergency circumstances
1. Emergency circumstances occur when the goods market is
disrupted, making it impossible for transactions via the Commodity Exchange to
reflect accurately the supply and demand relationship.
2. The Minister of Trade shall have the right to implement the
following measures in emergency circumstances:
(a) To
temporarily suspend trading on the Commodity Exchange;
(b) To
restrict trading to transactions within a price frame or a certain quantity of
goods;
(c) To
change transaction schedules;
(d) To
change the operational charter of the Commodity Exchange;
(dd) Other
necessary measures as prescribed by the Government.
Article 73 Right to conduct sale and
purchase of goods via overseas Commodity Exchanges
Vietnamese
business entities shall have the right to conduct sale and purchase of goods
via overseas Commodity Exchanges in accordance with regulations of the
Government.
Chapter 3
Provision of Services
Section 1
General Provisions Applicable to Provision of Services
Article 74 Form of service contracts
1. A
service contract shall be expressed orally, in writing or shall be determined
by specific conduct.
2. Where
a law stipulates that certain types of service contracts must be made in
writing, those contracts must comply with such law.
Article 75 Rights of
business entities to provide services and to use services
1. Except
where the law or an international treaty to which the Socialist Republic of
Vietnam is a member stipulates otherwise, business entities shall have the
right to provide the following services:
(a) To provide services to residents of
(b) To provide services to non-residents of
(c) To provide services to residents of
(d) To provide services to non residents of
2. Except
where the law or an international treaty to which the Socialist Republic of
Vietnam is a member stipulates otherwise, business entities shall have the
right to use the following services:
(a) To use services of residents of
(b) To use services of non-residents of
(c) To use services of residents of
(d) To use services of non-residents of
3. The
Government shall provide specific regulations on the criteria for determining
who is a resident and who is a non-resident for the purpose of implementing tax
policies and for administration of import and export applicable to various
types of services.
Article 76 Services in which business is prohibited, services in which business is
restricted, and services in
which business is subject to conditions
1. Based
on socio-economic conditions from time to time and international treaties to
which the Socialist Republic of Vietnam is a member, the Government shall
specifically regulate the list of services in which business is prohibited, services
in which business is restricted, and services in which business is subject to
conditions and the conditions which must be satisfied in order to conduct
business in such services.
2. In
the case of services in which business is restricted and services in which
business is subject to conditions, such services shall only be permitted to be
provided after those services and the parties participating in provision of
such services have fully satisfied the conditions in accordance with law.
Article 77 Application of emergency
measures to activities of provision and use of services
In necessary
cases in order to protect national security and other national interests, and
in conformity with the law of Vietnam and international treaties to which the
Socialist Republic of Vietnam is a member, the Prime Minister of the Government
shall make decisions on application of emergency measures to activities of
provision and use of services, including temporary prohibition of provision and
use of services applicable to one or a number of types of service or other
emergency measures applicable to one or a number of specified markets for a
specified period.
Section 2
Rights
and Obligations of Parties to Service Contracts
Article
78 Obligations of service
providers
Unless otherwise agreed, a
service provider shall have the following obligations:
1. To
supply services and to carry out other related work fully, in accordance with
the agreement [of the parties] and in accordance with this Law.
2. To preserve materials and facilities delivered in order to
perform the services and to return same to the client after completion of the
work.
3. To notify immediately to the client any instance of
insufficient information and materials or inadequate facilities which fail to
ensure completion of provision of the services.
4. To keep confidential any information made known to the
service provider during the process of provision of the services if so agreed
[by the parties] or if required by law.
Article 79 Obligation of service
providers [where the service is] on the basis of performance results
Unless otherwise
agreed, if the nature of the particular service being provided requires the
service provider to produce a certain result, then when providing the service
the service provider must obtain an appropriate result in accordance with the
conditions and objectives set out in the contract. Where the contract does not contain specific
clauses on the standard of the result to be obtained, then when providing the
service the service provider must obtain an appropriate result in compliance
with the ordinary standards applicable to that type of service.
Article 80 Obligation of service
providers [where the service is] on the basis of the best endeavours and
capacity
Unless otherwise
agreed, if the nature of the particular service being provided requires the
service provider to use its best endeavours to produce the desired result, then
the service provider must discharge the obligation to provide such service
using its best endeavours and capacity.
Article
81 Co-operation among service
providers
Where, under an agreement or
under a specific circumstance, a service is to be provided jointly by a number
of service providers or by one service provider in co-operation with other service
providers, then each of the service providers shall have the following
obligations:
1. To exchange information with other service providers
regarding the progress of the work and its requirements in relation to the
provision of the service; and to provide the service at an appropriate time and
in an appropriate manner so as not to interfere with the operations of other
service providers.
2. To carry out any activities which are necessary to achieve
co-operation with other service providers.
Article 82 Time-limit for completion of
services
1. A service provider must complete the provision of its
services within the time-limit agreed in the contract.
2. If the contract does not contain any clause on a time-limit
for such completion, the service provider must complete the service within a
reasonable period of time taking into account all the conditions and the
context known to the service provider at the time of entering into the contract
including any specific requirements which a client has regarding the time-limit
for completion of the service.
3. When the provision of a service can only be completed after
the client or another service provider has satisfied certain conditions, then a
service provider shall not be obliged to complete the provision of its service
until such conditions have been satisfied.
Article 83 Client requests relating to
changes during the process of provision of services
1. During the provision of services, a service provider must
comply with reasonable requests of the client for changes throughout the
provision of the services.
2. Unless otherwise agreed, the client must bear the
reasonable costs of performing its requests for changes.
Article 84 Continued
provision of services after the expiration of the time-limit for completion of
provision of services
If the provision of a
service is not completed by the expiration of the time-limit for same and if
the client has no objection, then the service provider must continue the
provision of the service in accordance with the
agreed details and must pay damages for losses, if any.
Article
85 Obligations of clients
Unless otherwise
agreed, a client shall have the following obligations:
1. To pay for the provision of the
service as agreed in the contract.
2. To provide in a timely manner all plans, instructions and
other details in order for the service to be provided without delay or
interruption.
3. To co-operate in all other necessary matters to enable the
service provider to provide the service in the appropriate manner.
4. Where a service is to be provided jointly by a number of
service providers or by one service provider in co-operation with other service
providers, then the client shall be obliged to co-ordinate the operations of
all service providers so as not to impede the work of any one service provider.
Article
86 Service fees[7]
Where there is no
agreement on service fees, no agreement on a method for fixing service fees and
no other instructions regarding service fees, the service fee shall be
determined on the basis of the fees for that type of service under similar
conditions for method for provision of the service, time of provision,
geographical market, mode of payment and other conditions which affect service
fees.
Article
87 Time-limit for payment [of
service fees]
If there is no
agreement and no commercial usage between the parties concerning payment [of
service fees], the time-limit for payment shall be the time when provision of
the service is complete.
Chapter 4
Commercial Enhancement
Section 1
Promotions
Article 88 Promotions
1. A
promotion means an act of commercial enhancement by a business entity aimed at
enhancing the purchase and sale of goods and the provision of services by
giving specified benefits to customers.
2. A
business entity holding a promotion may be a business entity in one of the
following categories:
(a) A business entity directly holding a
promotion of the goods and services in which such business entity itself
conducts business;
(b) A business entity engaging in the
business of promotion services holds a promotion of the goods and services
of another business entity on the basis of an agreement with such latter
business entity.
Article
89 Business of promotion services
The business of promotion services means commercial activity whereby a business
entity holds a promotion of the goods and services of another business entity
on the basis of a contract.
Article
90 Contracts for the
provision of promotion services
A contract for
the provision of promotion services must be in writing or in another form with
equivalent legal validity.
Article
91 Right of business entities
to conduct promotions
1. Vietnamese
business entities, branches of Vietnamese business entities and branches of
foreign business entities in
2. A
representative office of a business entity shall not be permitted to hold a
promotion or to hire another business entity to hold a promotion in
Article 92 Forms of promotion
1. Giving
samples of goods and providing sample services to customers for trial use free
of charge.
2. Giving
goods as gifts or providing free services to customers.
3. Selling
goods or providing services at prices lower than the previous goods selling
prices or services charges, applicable for a registered or announced period of
promotion. Where the goods and services are in the category of goods and
services for which the State manages prices, promotion by this form shall be
conducted in accordance with regulations of the Government.
4. Selling
goods or providing services to customers together with coupons for the purchase
of goods or use of services so that customers will receive one or more
specified benefits.
5. Selling
goods or providing services together with contest forms for customers, from
amongst which the winners will be selected in accordance with announced rules
and [will win] announced prizes.
6. Selling
goods or providing services together with participation in lucky programs where
participation in the program is closely connected to the purchase of the goods
or use of the services and winning a prize is based on the luck of the
participant in accordance with announced rules and prizes.
7. Holding
programs for frequent customers pursuant to which prizes will be given to
customers on the basis of volume or value of goods or services purchased by
customers and expressed in the form of customer cards or coupons recording the
goods or services purchased or [expressed in] other forms.
8. Organizing
customer participation in cultural, artistic and entertainment programs or
other events for promotional purposes.
9. Other
forms of promotion if approved by the State administrative body for commerce.
Article 93 Promoted goods and services
1. Promoted goods and services means
goods and services which a business entity uses in any of the forms of
promotion in order to enhance the sale of such goods and provision of such
services.
2. Promoted
goods and services must be goods and services in which business is legal.
Article 94 Goods and services used for promotions, price discount rate in promotions
1. Goods and services used for promotions
means goods and services which a business entity uses as gifts or prizes or to
provide to customers free of charge.
2. Goods
and services which a business entity uses for promotions may be goods and
services in which that business entity conducts business or they may be other
goods and services.
3. Goods
and services used for promotions must be goods and services in which business
is legal.
4. The
Government shall provide regulations on specific maximum limits on the value of
goods and services used for promotions, and on the maximum price discount rate
of promoted goods and services which any business entity shall be permitted to
implement during promotional activities.
Article 95 Rights of business entities holding
promotions
1. To select the form of, time or
duration, location of the promotion, and goods and services used for promotions.
2. To stipulate the specific benefits to
which customers will be entitled in compliance with article 94.4 of this Law.
3. To hire a business entity engaging in
the business of promotion services to hold a promotion for it.
4. To organize the conduct of any form of
promotion prescribed in article 92 of this Law.
Article
96 Obligations of business entities holding promotions
1. To
comply fully with the order and procedures stipulated by law in order to
conduct any form of promotion.
2. To
announce publicly to customers the details[8] of promotional activities
in accordance with article 97 of this Law.
3. To correctly hold the promotional program
as announced and to honour the undertakings made to customers.
4. To pay fifty (50) per cent of the
value of the announced prizes
into the State Budget where there are no prize winners, applicable to a number
of the forms of promotion prescribed
in article 92.6 of this Law.
The Minister of Trade shall provide regulations on the specific forms of promotion which fall into the
category of lucky programs and to which this provision shall apply;
5. To
comply with the agreements in the contract for promotion services if the business entity holding the promotion is a business entity engaging in the business of
promotion services.
Article 97 Details which must be announced publicly
1. A business entity holding a promotion in
any of the forms stipulated in article 92 of this Law must announce publicly
the following details:
(a) Name
of the promotional activity;
(b) Price
of selling the promoted goods or [charges for] providing the promoted services
and related charges for delivering the promoted goods and services to the
customer;
(c) Name,
address and telephone number of the business entity holding the promotion;
(d) Time
or duration of the promotion, the commencement and ending dates, and the
geographical area of the promotional
activity;
(dd) If the benefits from participation in a promotion are subject to
specified conditions, then the announcement must specify that the promotional
activity is subject to conditions and must also specify the particulars of those
conditions.
2. In addition to the details prescribed in clause 1 of this
article, a business entity holding a promotion must also announce
publicly the following details concerning a promotional activity:
(a) The
selling price of the goods and charges
for the services being given as a gift to customers, applicable to the form of
promotion stipulated in article 92.2 of this Law;
(b) The full value of or percentage
reduction of the normal goods selling price or service charge prior
to the period of the promotion, applicable to the form of promotion stipulated
in article 92.3 of this Law;
(c) The monetary value or the specific
benefit to which a customer will be entitled from the coupon for the purchase
of goods or from the coupon for the use of services; location of sale of goods and provision of services,
and the types of goods and services which
a customer may receive from the coupon for the purchase of goods or from the
coupon for the use of services, applicable to the form of promotion stipulated in
article 92.4 of this Law;
(d) The types of prizes and the value of
each type; the rules for participation in the promotional program and the
method for selecting prize winners, applicable to each form of promotion
stipulated in clauses 5 and 6 of article 92 of this Law;
(dd) The costs which customers themselves must
pay or bear, applicable to each form of promotion stipulated in clauses 7 and 8
of article 92 of this Law.
Article 98 Forms of announcement
1. The
announcement of a promotion of goods pursuant to article 97 of this Law must be
made in one of the following forms:
(a) At the location where the goods are sold
and at the place were the goods are displayed for sale;
(b) On the goods or on the goods packaging;
(c) In any other form, but the announcement
must be attached to the goods when they are sold.
2. The
announcement of a promotion of services pursuant to article 97 of this Law must
be made in one of the following forms:
(a) At the location where the services are
provided;
(b) In any other form, but the announcement
must be provided together with the services when such services are provided.
Article 99 Confidentiality of information relating to promotional programs and details thereof
With respect to promotional programs which are only
permitted to be conducted with the approval of the competent State body, such
State body must maintain strictly the confidentiality
of the program and details thereof provided by a business entity up until the
time the promotional program is approved by the competent State body.
Article 100 Practices which are prohibited during promotional activities
1. Promotions
in respect of goods and
services in which business is prohibited; in respect of goods and services in which business is restricted;
and in respect of goods the circulation of which is not yet permitted and
services the provision of which is not yet permitted.
2. Use of the following goods and
services in order to conduct a promotion: goods and services in which business
is prohibited, goods and services in which business is restricted, goods the
circulation of which is not yet permitted and services the provision of which
is not yet permitted.
3. Promotions
or use of wines and beer targeted at persons under eighteen (18) years of age.
4. Promotions
or use of tobacco or wines with an alcoholic content of thirty (30) degrees or
more to conduct a promotion in any form.
5. Dishonest
or misleading promotions about goods
and services for the purpose of deceiving customers.
6. Promotions for the purpose of selling low quality goods, causing
harm to the environment, to the health of people, and other public interests.
7. Promotions taking place at schools; at hospitals; and at offices of State
bodies, political organizations, socio-political organizations and the people’s
armed forces.
8. Promises
to give gifts or prizes which are not in fact given or not given correctly.
9. Promotions
aimed at engaging in unfair competition.
10. Promotions
in which the value of goods and services used for the promotion exceeds the
maximum limit or in which the price discount of the promoted goods and services
exceeds the maximum rate stipulated in article 94.4 of this Law.
Article 101 Registration of promotional activities with, and report on results of a
promotion to the State administrative body for commerce
1. Before holding promotional activities,
business entities must conduct registration with the State administrative body
for commerce, and after completion of promotional activities business entities
must report the results to the State administrative body for commerce.
2. The Government shall provide specific regulations on the registration
of promotional activities and on reporting the results of promotional
activities held by business entities to the State administrative body for
commerce.
Section 2
Commercial Advertising
Article
102 Commercial advertising
Commercial
advertising means
activities of commercial enhancement conducted by a business entity aimed at
introducing customers to the business activities in goods and services of such
business entity.
Article
103 Right to conduct commercial
advertising
1. Vietnamese
business entities, branches of Vietnamese business entities and branches of
foreign business entities permitted to conduct commercial activities in
2. Representative
offices of business entities shall not be permitted to directly conduct
commercial advertising. If a representative office is so authorized by a
business entity, then such representative office shall have the right to sign a
contract with a business entity engaging in commercial advertising services to
conduct commercial advertising for the business entity which such
representative office represents.
3. Foreign
business entities wishing to commercially advertise their business activities
in goods and services in
Article
104 Business of commercial
advertising services
The business of commercial advertising
services means commercial activity by one business entity in order to conduct
commercial advertising for other business entities.
Article
105 Commercial advertising
products
Commercial
advertising products comprise
information in the form of images, actions, sounds, spoken or written languages,
symbols, colours and lighting containing commercial advertising details.
Article 106 Means of
commercial advertising
1. Means
of commercial advertising means the media which are used to introduce
commercial advertising products.
2. Means
of commercial advertising shall comprise:
(a) Mass media;
(b) Means of communicating information;
(c) All kinds of publications;
(d) All
kinds of boards, signs, banners, panels, posters, fixed objects, means of
transportation or other mobile objects;
(dd) Other means of commercial advertising.
Article
107 Use of means of commercial advertising
1. The use of the means of commercial
advertising prescribed in article 106 of this Law must comply with regulations
issued by the competent State body.
2. The use of means of commercial
advertising must ensure compliance with the following requirements:
(a) Compliance
with the laws on the press, on publishing, on information, on programs of
cultural and sporting activities and on trade fairs and exhibitions;
(b) Compliance
with the regulations on [permitted] locations for advertisement; and causing no
adverse effect on the landscape and environment, on traffic order and safety,
and on social security;
(c) Correctness
in terms of levels, volume, time and duration stipulated by regulations
applicable to each particular means of mass media.
Article
108 Protection of intellectual property rights with respect to
commercial advertising products
Business entities shall have the right to register for
protection of intellectual property rights with respect to commercial
advertising products in accordance with law.
Article 109 Prohibited commercial advertisements
1. Advertisements which disclose State
secrets; or which are detrimental to national independence, sovereignty or
security; or detrimental to social security and order.
2. Advertisements which use advertising
products or advertising means contrary to the historical, cultural and ethical
traditions and fine customs of Vietnam and contrary to law.
3. Advertisements of goods and services
in which the State prohibits business, restricts business or prohibits
advertising.
4. Advertisements of tobacco or wines with an alcoholic content of
thirty (30) degrees or more; of products and goods the circulation of
which is not yet permitted, and of services the provision of which is not yet
permitted on the Vietnamese market at the time of advertising.
5. Abuse of advertising to harm the
interests of the State or of other organizations and individuals.
6. Advertisements which use the method of
directly comparing the production and business operation of goods and services
of the entity being advertised with the production and business operation of
goods and services of the same type of another business entity.
7. False advertisements of goods and
services with respect to any of the following matters: quantity, quality,
price, utility, design, origin of goods, type, packaging, service method and
warranty period.
8. Advertisements of the business
operation of the entity being advertised by using an advertising product which
breaches intellectual property rights; or using the image of another
organization or individual in an advertisement without the prior approval of
such organization or individual.
9. Advertisements aimed at engaging in unfair competition as stipulated by law.
Article 110 Commercial advertising service contracts
A contract for
commercial advertising service must be in writing or in another form with
equivalent legal validity.
Article
111 Rights of party hiring
commercial advertising
Unless otherwise
agreed, a party hiring commercial advertising shall have the following rights:
1. To
choose the commercial advertisement publisher; and the method, content, means,
scope and time or duration of the commercial advertisement.
2. To
inspect and supervise the performance of the commercial advertising service
contract.
Article 112 Obligations of party hiring commercial
advertising
Unless otherwise agreed, a
party hiring commercial advertising shall have the following obligations:
1. To
provide to the commercial advertising service provider true and accurate
information relating to business activities in commercial goods and services
and to be responsible for that information;
2. To
pay fees for the commercial advertising services and other reasonable charges.
Article
113 Rights of commercial
advertising service providers
Unless otherwise
agreed, a commercial advertising service provider shall have the following
rights:
1. To
request the party hiring commercial advertising to provide truthful and
accurate advertising information strictly in accordance with the agreements
prescribed in the contract.
. To
receive fees for commercial advertising services and other reasonable charges.
Article
114 Obligations of commercial
advertising service providers
Unless otherwise
agreed, a commercial advertising service provider shall have the following
obligations:
1. To
comply with the selection of the party hiring the commercial advertisement
regarding the commercial advertisement publisher; and the method, content,
means, scope and time or duration of the commercial advertisement.
2. To
provide a true and accurate advertisement of the business activities in
commercial goods and services according to the information supplied by the
party hiring the commercial advertising services.
3. To
discharge other obligations as agreed in the contract for commercial
advertising services.
Article 115 Commercial advertisement publisher
The commercial advertisement publisher means the person directly
issuing the commercial advertising product.
Article
116 Obligations of the commercial
advertisement publisher
The commercial
advertisement publisher shall have the following obligations:
1. To
comply with the provisions on use of means of commercial advertising stipulated
in article 107 of this Law;
2. To
perform the contract for the publishing of the advertisement as signed with the
party hiring the publishing of the advertisement.
3. To
discharge other obligations in accordance with law.
Section 3
Display
and Introduction of Goods and Services
Article 117 Display and introduction of goods and
services
Display
and introduction of goods and services means activities of commercial enhancement
conducted by a business entity using goods and services and materials about
goods and services in order to introduce those same goods and services to
customers.
Article
118 Right to display and
introduce goods and services
1. Vietnamese
business entities, branches of Vietnamese business entities and branches of
foreign business entities in Vietnam shall have the right to display and
introduce goods and services; to select appropriate forms of displaying and
introducing goods and services; to themselves organize their own display and
introduction of goods and services, or to hire a business entity engaging in
commercial services of the display and introduction of goods and services in
order to display and introduce their goods and services.
2. Representative
offices of business entities shall not be permitted to directly display and
introduce the goods and services of the business entity which they represent,
except for displays and introduction at the office of such representative
office. If a representative office is so authorized by a business entity, then
such representative office shall have the right to sign a contract with a
business entity engaging in commercial services of the display and introduction
of goods and services to display and introduce the goods and services of the
business entity which such representative office represents.
3. Foreign
business entities not yet permitted to conduct commercial activities in
Article 119 Business of services
of the display and introduction of goods and services
The business of services of the display and
introduction of goods and services means commercial activity by
one business entity in order to provide the commercial services of display and
introduction of goods and services for other business entities.
Article
120 Forms of display and
introduction of goods and services
1. Opening
showrooms displaying and introducing goods and services.
2. Displaying
and introducing goods and services at commercial centres or during
entertainment, sports, cultural or artistic activities.
3. Organizing
seminars and conferences involving the display and introduction of goods and
services.
4. Displaying
and introducing goods and services on the internet and in other forms in
accordance with law.
Article 121 Conditions for displayed and introduced goods and services
1. Displayed
and introduced goods and services must be goods and services in which business
is legally conducted in the market.
2. Displayed
and introduced goods and services must comply with the laws on quality of goods
and on labelling of goods.
Article 122 Conditions for goods imported into
Goods imported
into
1. Be
goods which are permitted to be imported into
2. Where
goods are temporarily imported for display and introduction, they must be
re-exported after completion of the display and introduction and within a
time-limit not to exceed six (6) months from the date of the temporary
importation; if that time-limit is exceeded then procedures for extension must
be conducted at the customs office in the place where the goods were temporarily
imported.
3. If
goods which were temporarily imported for display and introduction are sold in
Article 123 Cases where the display and introduction of goods and services
is prohibited
1. The
organization of the display and introduction of goods and services or the use
of media displaying and introducing the goods and services would be detrimental to national security, social
order and safety, or would have an adverse
effect on the landscape, environment and health of people.
2. The
display and introduction of goods and services or the use of the forms and
media for display and introduction would be contrary to the historical,
cultural and ethical traditions and fine customs of
3. The
display and introduction of goods and services would disclose State secrets.
4. The
display and introduction is of goods of another business entity in order to
contrast them to the goods of the displayer, except where the goods displayed
are counterfeit goods or goods in breach of intellectual property rights
pursuant to law.
6. The
display and introduction is of sample goods which are inconsistent with goods
currently traded with respect to quality, price, utility, design, type,
packaging, warranty period, and other quality indicators aimed at defrauding
customers.
Article 124 Service contracts for displaying and introducing goods and
services
A service
contract for displaying and introducing goods and services must be in writing
or in another form with equivalent legal validity.
Article 125 Rights of party hiring services of displaying and introducing
goods and services
Unless otherwise agreed, a
party hiring services of displaying and introducing goods and services shall
have the following rights:
1. To
require the party supplying the services of displaying and introducing goods
and services to perform the agreements in the contract.
2. To
inspect and supervise the performance of the service contract for displaying
and introducing goods and services.
Article 126 Obligations of party hiring services of displaying and
introducing goods and services
Unless otherwise
agreed, a party hiring services of displaying and introducing goods and
services shall have the following obligations:
1. To
provide complete goods and services for display and introduction to the service
provider or to provide media for the display and introduction pursuant to the
agreements in the contract.
2. To
supply information relating to the displayed and introduced goods and services
and to be responsible for such information.
3. To
pay fees for the services and other reasonable charges.
Article 127 Rights of parties supplying the services of displaying and
introducing goods and services
Unless otherwise
agreed, a party supplying the services of displaying and introducing goods and
services shall have the following rights:
1. To
request the party hiring the services to provide goods and services for display
and introduction in accordance with the time schedule agreed in the contract.
2. To
request the party hiring the services to supply information relating to the
goods and services to be displayed and introduced and other necessary
facilities as agreed in the contract.
3. To
receive fees for services and other reasonable charges.
Article 128 Obligations of parties
supplying the services of displaying and introducing goods and services
Unless otherwise
agreed, a party supplying the services of displaying and introducing goods and
services shall have the following obligations:
1. To
carry out the display and introduction of goods and services as agreed in the
contract.
2. To
take care of the displayed and introduced goods and of the documents and
facilities provided during the term of performance of the contract; to return
all displayed and introduced goods, documents and facilities to the party
hiring the services upon completion of the display and introduction of goods
and services;
3. To
carry out the display and introduction of goods and services in accordance with
the items agreed with the party hiring the services of displaying and
introducing goods and services.
Section 4
Trade Fairs and Exhibitions
Article
129 Trade fairs and exhibitions
A trade fair or an exhibition means an activity of
commercial enhancement conducted for a certain period of time and concentrated
at a certain location in order for business entities to display and introduce
their goods and services for the purposes of marketing and seeking
opportunities to sign contracts for the purchase and sale of the goods and to
sign service contracts.
Article
130 Conducting the business of
trade fair and exhibition services
1. The business of trade fair and exhibition
services means a commercial activity whereby one business entity
provides the service of organization of or participation in trade fairs and
exhibitions for other business entities in order to receive remuneration for
the service of organization of trade fairs and exhibitions.
2. A
service contract for organization or participation in a trade fair or
exhibition must be in writing or in another form with equivalent legal
validity.
Article 131 Right to organize or
participate in a trade fair or exhibition
1. Vietnamese
business entities, branches of Vietnamese business entities and branches of
foreign business entities in Vietnam shall have the right to directly organize
or participate in a trade fair or exhibition regarding the goods and services
in which such business entity conducts business, or to hire a business entity
providing trade fair and exhibition services to do so.
2. Representative
offices of business entities shall not be permitted to directly organize or
participate in a trade fair or exhibition. If a representative office is so
authorized by a business entity, then such representative office shall have the
right to sign a contract with a business entity providing trade fair and
exhibition services in order to organize or participate in a trade fair or
exhibition for the business entity which such representative office represents.
3. Foreign
business entities shall have the right to directly participate in a trade fair
or exhibition in
Article
132 Organizing trade fairs and
exhibitions in
1. All
trade fairs and exhibitions organized in
2. The
Government shall provide specific regulations on the order and procedures for,
and details of registration and confirmation of registration of trade fairs and
exhibitions held in
Article 133 Organization of and participation in overseas trade fairs and
exhibitions
1. Any
business entity which is not a business entity conducting the business of
trade fair and exhibition services and which wishes to directly organize or
participate in an overseas trade fair or exhibition regarding the goods and
services in which such former business entity conducts business, must comply
with regulations on exporting goods.
2. When
a business entity conducting the business of trade fair and exhibition services
arranges for another business entity to participate in an [overseas] trade fair
or exhibition, the former business entity must register with the Ministry of
Trade.
3. A
business entity which does not have business registration for trade fair and
exhibition services shall not be permitted to arrange for other business
entities to participate in overseas trade fairs and exhibitions.
4. The
Government shall provide specific regulations on the order and procedures for,
and details of registration of organization of and participation in overseas
trade fairs and exhibitions pursuant to clauses 1 and 2 of this article.
Article 134 Goods and services displayed and introduced at trade fairs and
exhibitions in
1. The
following goods and services shall not be permitted to participate in trade
fairs and exhibitions:
(a) Goods and services in which business is
prohibited, in which business is restricted, or the circulation of which is not
yet permitted by law;
(b) Goods and services supplied by an
overseas business entity but which are prohibited imports pursuant to law;
(c) Counterfeit goods or goods in breach of
intellectual property rights, except where the goods are displayed or
introduced in order to be contrasted with genuine goods.
2. In
addition to compliance with the provisions on trade fairs and exhibitions in
this Law, goods and services subject to specialized administration must also
comply with the regulations on specialized administration applicable to such
goods and services.
3. Where
goods are temporarily imported for participation in a trade fair or exhibition
in
4. The
temporary importation and re-exportation of goods for participation in a trade
fair or exhibition in
Article 135 Goods and services participating in overseas trade fairs and
exhibitions
1. All
goods and services shall be eligible for participation in overseas trade fairs
and exhibitions except goods and services in the category of prohibited exports
pursuant to law.
2. Goods
and services in the category of prohibited exports may only participate in
overseas trade fairs and exhibitions with written permission from the Prime
Minister of the Government.
3. The
duration for the temporary exportation of goods which participate in an
overseas trade fair or exhibition shall be one year from the date of the temporary exportation;
if that duration is exceeded and the goods have not been re-imported, then the
goods shall be subject to duty and other financial obligations in accordance
with the law of Vietnam.
4. The
temporary exportation and re-importation of goods which participate in an
overseas trade fair or exhibition must comply with the law on customs and other
related laws.
Article 136
1. Goods
and services which are displayed and introduced at a trade fair or exhibition
in Vietnam shall be permitted to be sold or donated and [services shall be
permitted to be] provided at such trade fair or exhibition; imported goods must
be registered with customs except for the case stipulated in clause 2 of this
article.
2. Goods
in the category of imports which must have a permit from a competent State body
shall only be permitted to be sold or donated with written approval from the
competent State body.
3. The
sale or donation of goods prescribed in article 134.2 of this Law at a trade
fair or exhibition must comply with the regulations on specialized import
administration applicable to such goods.
4. Goods
which are sold or donated and services which are provided at a trade fair or
exhibition in
Article 137
1. Vietnamese
goods and services participating in an overseas trade fair or exhibition shall
be permitted to be sold, donated or provided at such trade fair or exhibition,
except for the cases stipulated in clauses 2 and 3 of this article.
2. The
sale or donation of goods in the category of prohibited exports but which have
already been permitted for temporary export for participation in an overseas
trade fair or exhibition shall only be conducted with prior permission from the
Prime Minister of the Government.
3. Goods
in the category of exports which must have a permit from a competent State body
shall only be permitted to be sold or donated with written approval from the
competent State body.
4. Vietnamese
goods and services participating in an overseas trade fair or exhibition and
which are sold, donated or provided overseas shall be subject to duty and other
financial obligations in accordance with law.
Article 138 Rights and
obligations of organizations and individuals participating in trade fairs and
exhibitions in
1. To
exercise rights and discharge obligations in accordance with the agreement with
the business entity organizing the trade fair or exhibition.
2. To
sell or donate the goods, and to provide the services displayed and introduced
at the trade fair or exhibition in accordance with law.
3. To
temporarily import and re-export goods and materials about goods and services
in order to display them at a trade fair or exhibition.
4. To
comply with regulations on organizing trade fairs and exhibitions in
Article 139 Rights and
obligations of business entities organizing or participating in overseas trade
fairs and exhibitions
1. To
temporarily export and re-import goods and materials about goods and services
in order to display and introduce them at the trade fair or exhibition.
2. To
comply with regulations on organizing or participating in overseas trade fairs
and exhibitions.
3. To
sell or donate goods displayed at the overseas trade fair or exhibition; to pay
duty and to discharge other financial obligations in accordance with the law of
Article 140 Rights and
obligations of business entities conducting the business of trade fair and
exhibition services
1. To
list the theme, time and duration of the trade fair or exhibition at the place
where it will be held prior to the opening day of such trade fair or
exhibition.
2. To
request the party hiring the trade fair and exhibition services to supply goods
for participation in the trade fair or exhibition on schedule pursuant to the
agreement in the contract.
3. To
request the party hiring the trade fair and exhibition services to supply
information about the goods for participation in the trade fair or exhibition
together with other essential facilities in accordance with the agreement.
4. To
receive fees for services and other reasonable charges.
5. To
arrange the trade fair or exhibition strictly in accordance with the agreement
in the contract.
Chapter 5
Intermediary Commercial Activities
Section I
Representation of Business Entities
Article
141 Representation of business
entities
1. Representation
of a business entity means
the agreement of one business entity (referred
to as the representative) to act as authorised by another business entity (referred to as the
represented entity) to conduct commercial activities in the name and under
the instructions of the latter business entity and which is entitled to receive
remuneration for acting as representative.
2. In
the event that a business entity nominates its personnel to act as its
representative, the provisions of the Civil Code shall apply.
Article
142 Contracts for representation
of business entities
A contract for
representation of a business entity must be made in writing or in another form
with equivalent legal validity.
Article
143 Scope of representation
Parties may agree
for a representative to conduct a part or all of the commercial activities
falling within the scope of activities of the represented entity.
Article
144 Term of representation of
business entities
1. The term of representation shall be as
agreed by the parties.
2. Where
there is no agreement, the term of representation shall be terminated when the
represented entity serves notice of termination of the contract for
representation on the representative or when the representative serves notice
of termination of the contract on the represented entity.
3. Unless
otherwise agreed, if the represented entity unilaterally serves notice of
termination of the contract for representation pursuant to clause 2 of this
article, the representative shall have the right to require the represented
entity to pay an amount of remuneration for the signing by the represented
entity of contracts with customers the
representative has dealt with and to pay other sums of remuneration to which
the representative would otherwise have been entitled.
4. If the term of representation is terminated pursuant to
clause 2 of this article at the request of the representative then the
representative shall lose its right to remuneration for transactions for which
it would otherwise have been entitled to earn remuneration, unless the parties
agree otherwise.
Article 145 Obligations of
representatives
Unless otherwise agreed, a
representative shall have the following obligations:
1. To
conduct commercial activities in the name and in the interests of the
represented entity;
2. To
notify the represented entity of [business] opportunities and the results of
implementation of authorized commercial activities;
3. To
comply with the instructions of the represented entity, except where such
instructions breach the law;
4. Not
to conduct commercial activities in its own name or in the name of a third
person within the scope of representation;
5. Not
to disclose or supply to others confidential information relating to commercial
activities of the represented entity during the term of representation and
within two years of termination of the contract for representation;
6. To
preserve the assets and materials assigned for the purpose of carrying out the
representative acts.
Article
146 Obligations of represented
entities
Unless otherwise
agreed, a represented entity shall have the following obligations:
1. To
notify the representative immediately of the signing of contracts negotiated by
the representative, the performance of contracts entered into by the
representative, and the acceptance or rejection of acts implemented
by the representative beyond the scope of representation.
2. To
supply the assets, materials and information necessary for the representative
to carry out the representative acts.
3. To pay remuneration and other
reasonable charges to the representative.
4. To
notify promptly the representative of the inability [of the represented entity]
to enter into or perform the contracts falling within the scope of
representation.
Article 147 Right to receive
representative's remuneration
1. Representatives
shall be entitled to remuneration in respect of contracts entered into within
the scope of representation. The right
to remuneration shall arise from the time agreed by the parties in the contract
for representation.
2. Where
there is no agreement, the rate of remuneration for a representative shall be
determined in accordance with article 86 of this Law.
Article
148 Payment of expenses incurred
Unless otherwise
agreed, representatives shall have the right to claim the payment of reasonable
expenses incurred in order to perform the representative acts.
Article
149 Lien
Unless otherwise
agreed, representatives shall have the right to withhold assigned assets and materials
as security for payment of remuneration and charges which are due.
Section 2
Commercial Brokerage
Article 150 Commercial
brokerage
Commercial
brokerage means commercial activity whereby a business entity acts as an
intermediary (referred to as the broker) between parties purchasing and
selling goods and providing services (referred to as the principals)
during the course of negotiations and signing contracts for sale and purchase
of goods or provision of services and which is entitled to remuneration under a
brokerage contract.
Article
151 Obligations of commercial
brokers
Unless otherwise
agreed, a commercial broker shall have the following obligations:
1. To
preserve samples of goods and materials assigned for the purpose of brokerage
activities and to return them to a principal upon completion of brokerage
activities;
2. Not
to disclose or supply information detrimental to the interests of a principal;
3. To
be responsible for the legal status, but not the capacity for payment, of the
principals;
4. Not
to participate in performance of a contract between principals unless
authorized by a principal.
Article
152 Obligations of principals
Unless otherwise
agreed, a principal shall have the following obligations:
1. To
provide the necessary information, materials and facilities related to the
goods and services.
2. To pay broker’s remuneration and other
reasonable charges to the broker.
Article
153 Right to broker’s
remuneration
1. Unless
otherwise agreed, the right to broker’s remuneration shall arise from the time
when the principals enter into a contract with each other.
2. Where
there is no agreement, the rate of broker’s remuneration shall be determined in
accordance with article 86 of this Law.
Article 154 Payment of expenses incurred in relation to brokerage activities
Unless otherwise
agreed, a principal must pay all reasonable expenses incurred in relation to
the brokerage, even where the brokerage activities fail to achieve any result
for the principal.
Section 3
Article
155
The sale and
purchase of goods by authorized dealers means commercial activity
whereby the authorized dealer carries out the sale and purchase of goods under
its own name subject to terms agreed with the principal and is paid dealer's
remuneration.
Article
156 Authorized dealers
An authorized
sale and purchase dealer means a business entity dealing in goods which are
consistent with the goods the subject of authorization and
carrying out the sale and purchase of goods on terms agreed with the principal.
Article
157 Principals
A sale and
purchase principal means either a business entity or someone who is
not a business entity who authorizes an authorized dealer to conduct the sale
and purchase of goods at the request of the principal and who must pay dealer's
remuneration.
Article
158 Goods subject of
authorization
All goods which
are legally in circulation may be the subject matter of an authorized sale and
purchase.
Article
159 Authorization contracts[9]
A contract
for sale and purchase authorization must be in writing or in another
form with equivalent legal validity.
Article
160 Authorization of third
parties
An authorized
dealer may not authorize a third party to perform the signed contract for sale
and purchase authorization without the written consent of the principal.
Article
161 Receipt[10] of
authorization from multiple principals
An authorized
dealer may conduct an authorized sale and purchase of goods on behalf of more
than one principal.
Article
162 Rights of principals
Unless otherwise
agreed, a principal shall have the following rights:
1. To
require the authorized dealer to provide full information relating to the
performance of the authorization contract.
2. Not
to bear liability for breach of law by the authorized dealer except in the
circumstances stipulated in article 163.4 of this Law.
Article 163 Obligations of principals
Unless otherwise agreed, a
principal shall have the following obligations:
1. To
provide necessary information, materials and facilities for the performance of
the authorization contract.
2. To pay dealer's remuneration and other
reasonable charges to the dealer.
3. To
pay money and deliver goods strictly as agreed.
4. To
be jointly liable when the authorized dealer breaches the law for any reason
caused by the principal or when the parties intentionally act contrary to the
law.
Article 164 Rights of authorized dealers
Unless otherwise
agreed, an authorized dealer shall have the following rights:
1. To
require the principal to provide necessary information and materials for the
performance of the authorization contract.
2. To receive dealer's remuneration and
other reasonable expenses.
3. Not
to bear liability for goods which have been delivered to the principal
correctly as agreed.
Article 165 Obligations of authorized dealers
Unless otherwise
agreed, an authorized dealer shall have the following obligations:
1. To
conduct the sale and purchase of goods as agreed.
2. To
notify the principal of matters relating to the performance of the
authorization contract.
3. To
follow the instructions of the principal which are consistent with the
agreement.
4. To
preserve assets and materials assigned for the purpose of performance of the
authorization contract.
5. To
maintain the confidentiality of information relating to the performance of the
authorization contract.
6. To
pay money and deliver goods correctly as agreed.
7. To
be jointly liable for a breach of law by the principal if the breach was caused
partly by the fault of the authorized dealer.
Section 4
Commercial Agency
Article
166 Commercial agency
Commercial agency means commercial
activity whereby the principal and the agent agree for the agent in its own
name to conduct the sale or purchase of goods for the principal or to provide
services of the principal to customers in return for remuneration.
Article
167 Principals and agents
1. A
principal means a business entity which delivers goods to an agent for sale
or provides money for the purchase of goods to an agent to purchase goods, or a
business entity which invests an agent for the provision of services with
authority to provide services.
2. Agent
means a business entity which receives goods for agency sale or which receives
money for agency purchase or means a party which accepts authority to provide
services.
Article
168 Agency contracts
An agency
contract must be in writing or in another form with equivalent legal validity.
Article
169 Forms of agency
1. Off-take
agency means a form of agency whereby the agent conducts the sale or
purchase of a whole quantity of goods or provides a complete service for the
principal.
2. Exclusive
agency means a form of agency whereby within a specified geographical area
a principal only authorizes one sole agent to sell or purchase one or a number
of specified lines of goods, or to provide one or
a number of specified types of services.
3. General
agency for sale and purchase of goods or provision of services means a form
of agency whereby the agent organizes a network of sub-agents to conduct the
sale or purchase of goods or to provide services for the principal.
The
general agent shall represent the network of sub-agents. Sub-agents shall operate under the management
and in the name of the general agent.
4. Other forms of
agency as agreed by the parties.
Article
170 Ownership rights in
commercial agency
The principal is the owner of goods and money
delivered to the agent.
Article
171 Agent's remuneration
1. Unless
otherwise agreed, agent's remuneration shall be paid to the agent in the form
of a commission or price differential.
2. Where
the principal fixes the selling or purchasing price of goods or the service
charge to the customer then the agent shall be entitled to commission
calculated as a percentage of such selling or purchasing price of goods or
service charge.
3. Where
the principal does not fix the selling or purchasing price of goods or the
service charge to the customer but only fixes the price for selling to the
agent, then the agent shall be entitled to a price differential. The amount of
the price differential shall be determined as the difference between the
selling or purchasing price of goods or the service charge to the customer on
the one hand and the price which the principal fixes for the agent on the other
hand.
4. Where
the parties do not have an agreement on the amount of agent's remuneration, the
amount of remuneration shall be calculated as follows:
(a) The actual amount of remuneration paid to
the parties previously;
(b) Where clause (a) is inapplicable, the
amount of the agent’s remuneration shall be the average amount of agent’s
remuneration applicable to the same type of goods and services which the
principal has paid to other agents;
(c) Where clauses (a) and (b) are inapplicable,
the amount of the agent’s remuneration shall be the normal amount of agent’s
remuneration applicable to the same type of goods and services on the market.
Article
172 Rights of principals
Unless otherwise
agreed, a principal shall have the following rights:
1. To
fix the selling or purchasing price of goods or the service charge [made by the
agent] to the customer.
2. To
fix the price for selling to the agent.
3. To
request the agent to take security measures as provided for by law.
4. To
request the agent to make payment or to deliver goods in accordance with the
agency contract.
5. To
inspect and supervise the performance of the agency contract by the agent.
Article
173 Obligations of principals
Unless otherwise agreed, a principal shall
have the following obligations:
1. To provide guidelines and
information for and facilitate the performance of the agency contract by the
agent.
2. To be liable for
the quality of goods of an agent selling and purchasing goods, and for the
quality of services of an agent providing services.
3. To pay remuneration and
other reasonable expenses to the agent.
4. To return the
assets of the agent used as security (if any) to the agent upon termination of
the agency contract.
5. To
be jointly liable for a breach of law by the agent if the breach was caused
partly by the fault of the principal.
Article 174 Rights of agents
Unless otherwise agreed, an
agent shall have the following rights:
1. To
enter into agency contracts with one or more principals, except for the cases
stipulated in article 175.7 of this Law.
2. To
require the principal to pay money or deliver goods in accordance with the
agency contract; upon termination of the agency contract, to recover[11] from the principal assets
(if any) which were used as security.
3. To
require the principal to provide guidelines and information for, and to satisfy
other conditions relating to performance of the agency contract.
4. To
make decisions on the selling price of goods and on the service charge to customers
in the case of off-take agency.
5. To
be paid remuneration and to enjoy other legitimate rights and benefits arising
from the agency activities.
Article
175 Obligations of agents
Unless otherwise
agreed, an agent shall have the following obligations:
1. To
sell or purchase goods and to provide services to customers at the price of
goods and level of charges for provision of services fixed by the principal;
2. To
comply strictly with the agreements with respect to the delivery or receipt of
goods or money with the principal;
3. To
provide security for the discharge of civil obligations in accordance with law;
4. To
pay to the principal proceeds from the sale of goods, in the case of a sale
agent; to deliver the purchased goods, in the case of a purchase agent; and to
pay the charges for provision of services in the case of an agent providing
services;
5. To
preserve the goods after receipt thereof in the case of a sale agent, or prior
to delivery thereof in the case of a purchase agent; to be jointly liable for
the quality of goods in the case of a sale or purchase agent, and to be jointly
liable for the quality of services in the case of an agent providing services,
where the fault is caused by the agent;
6. To
be subject to inspection and supervision by the principal and to report to the
principal on the agency activities;
7. Where the law contains a specific provision to the effect that the agent may
only sign an agency contract with one principal with respect to a specified
type of commodity or service, then the agent must comply with such law.
Article 176 Payments
in cases of agency
Unless otherwise agreed,
payments for goods, for
provision of services, and payments of agent's remuneration shall be made on
each occasion after the agent has completed the sale or purchase of a certain
quantity of goods or completed the provision of a certain amount of services.
Article 177 Term of agency
1. Unless otherwise agreed, the term of agency shall only terminate
after a reasonable period of time but no earlier than sixty (60) days from the
date when either party serves a notice of termination of the agency contract on
the other party.
2. Unless otherwise agreed, if the principal serves a notice of
termination of contract pursuant to clause 1 of this article, then the agent
shall have the right to request the principal to pay damages for the period of
time during which the agent acted as agent for the principal.
The amount of such
damages shall be the average monthly agent's remuneration for each year that
the agent acted as agent for the principal. If the term of agency was less than one year,
the amount of such damages shall be calculated as the average monthly agent's
remuneration during the term of the agency.
3. If an agency contract is terminated at
the request of an agent, the agent shall not have the right to claim damages
from the principal for the term for which the agent acted as agent for the
principal.
Chapter 6
Some Other Specific Commercial Activities
Section I
Commercial
Processing
Article 178 Commercial processing
Commercial processing means commercial
activity whereby the processor uses part or all of the raw materials and
supplies provided by the supplier in order to carry out one or more stages of
the production process at the request of the supplier in order to receive
remuneration.
Article
179 Processing contracts
A processing
contract must be made in writing or in another form with equivalent legal
validity.
Article
180 Goods for processing
1. All
types of goods shall be permitted to be processed except for goods in which
business is prohibited.
2. In
the case of processing goods for foreign business entities for the purpose of
sale overseas, the following goods shall be permitted to be processed if the
competent State body provides approval, namely
goods on the list of goods in which business is prohibited and goods
on the list of prohibited imports and prohibited exports.
Article
181 Rights and obligations of
suppliers
[A supplier shall
have the following rights and obligations:]
1. To
deliver part or all of the raw materials and supplies for processing strictly
in accordance with the processing contract or to deliver money for the purchase
of supplies at the agreed price, quality and quantity.
2. Unless
otherwise agreed, to take back all processed products, leased or borrowed
machinery and equipment, and raw materials, auxiliary materials, supplies and
scrap after liquidation of the processing contract.
3. To
sell, destroy or donate on the spot processed products; leased or borrowed
machinery and equipment; excess raw materials, auxiliary materials and
supplies; and faulty products and scrap in
accordance with the agreement and in accordance with law.
4. To
assign representatives to inspect and supervise processing activities at the
processing place, and to assign experts to guide production technology and to
examine the quality of processed products as agreed in the processing contract.
5. To
be responsible for the lawfulness of intellectual property rights with respect
to processed goods and raw materials, supplies, machinery and equipment
delivered to the processor for use in processing activities.
Article
182 Rights and obligations of
processors
[A processor
shall have the following rights and obligations:]
1. To
supply part or all of the raw materials and supplies for processing in
accordance with the agreements with the supplier on quantity, quality,
technical specifications and price.
2. To
receive processor's remuneration and other reasonable expenses.
3. In
a case of processing for foreign individuals or organizations, a processor
shall be entitled to conduct on the spot export of processed products; leased
or borrowed machinery and equipment; excess raw materials, auxiliary materials
and supplies; and faulty products and scrap in accordance with the
authorization of the supplier.
4. In
a case of processing for foreign individuals or organizations, a processor
shall be entitled, in accordance with the law on duties, to exemption from
import duty on machinery, equipment, raw materials, auxiliary materials and
supplies which are temporarily imported at prescribed limits
in order to perform the processing contract.
5. To
be liable for the lawfulness of the processing activities when the goods being
processed are on the list of goods in which business is prohibited or on the
list of goods which are prohibited imports or prohibited exports.
Article 183 Processor's remuneration
1. Processors
may receive processor's remuneration [paid] by way of cash or by way of
processed products and machinery and equipment used to perform the processing.
2. In
a case of processing for foreign individuals or organizations, if the processor
receives processor's remuneration [paid] by way of processed products and
machinery and equipment used to perform the processing, [the processor] must
comply with the regulations on importation of such products, machinery and
equipment.
Article 184 Technology
transfer in processing with foreign organizations and individuals
Technology
transfer in processing with foreign organizations and individuals shall take
place in accordance with the agreements contained in processing contracts and must
be in accordance with the provisions on technology transfer of the law of
Vietnam.
Section 2
Auction of Goods
Article 185 Auction of goods
1. Auction of goods means commercial activity whereby the
seller itself conducts, or hires an auctioneer to conduct the public sale of
goods in order to select the purchaser offering the highest price.
2. An auction of goods shall be performed
by one of the following two methods:
(a) Upward
bidding method means the auction method by which the bidder offering the
highest price compared with the reserve price shall have the right to purchase the
goods;
(b) Downward
bidding method means the auction method by which the first bidder who
accepts the reserve price or a price lower than the reserve price shall have
the right to purchase the goods.
Article 186 Auctioneers and sellers of goods
1. Auctioneer means a business
entity with business registration for auctioneering services or a seller of goods who
itself conducts the auction.
2. Seller of goods means the owner
of goods or the person authorized by the owner of goods to sell the goods or a
person with the right pursuant to law to sell goods belonging to others.
Article 187 Auction
participants and auction administrators
1. Auction participants are organizations
or individuals who registers to participate in an auction.
2. The auction administrator shall be the
auctioneer or a person authorized by the auctioneer to administer the auction.
Article 188 Auction principles
The auction of goods in commerce shall be conducted on
the principles of publicity, truthfulness and protection of the lawful rights
and interests of all [auction] participants.
Article 189 Rights of auctioneers
Unless otherwise agreed, an
auctioneer shall have the following rights:
1. To request the seller of goods to
promptly provide complete, accurate and necessary information relating to the
goods to be auctioned; and to facilitate the auctioneer or the auction
participants in their examination of goods to be auctioned and in the delivery
of the auctioned goods to the purchaser where the auctioneer is a different entity
from the seller of goods[12];
2. To fix a reserve price where the
auctioneer is a different person from the seller of goods or is authorized [to
fix the reserve] by the seller of goods;
3. To conduct the auction of goods;
4. To request the purchaser to make
payment;
5. To receive the fees for auctioneering
services paid by the seller in accordance with article 211 of this Law.
Article 190 Obligations of auctioneers
[An
auctioneer shall have the following
obligations:]
1. To conduct the auction in accordance
with the principles and procedures stipulated by law and in accordance with the
auction method agreed with the seller of goods.
2. To publicly announce and display the
complete, accurate and necessary information relating to the goods to be auctioned.
3. To preserve the goods to be auctioned
when they are entrusted to the auctioneer by the seller of goods.
4. To display the goods, goods samples or
materials introducing the goods for the consideration of auction participants.
5. To prepare a deed of auction of
goods and to send it to the seller, the purchaser and other related
parties stipulated in article 203 of this Law.
6. To deliver the auctioned goods to the
purchaser in accordance with the contract for provision of auctioneering
services.
7. Unless otherwise agreed with the
seller, to complete procedures to transfer ownership in those auctioned goods
for which the law requires ownership to be registered.
8. To pay the proceeds of goods sold to
the seller of goods including any price differential collected as a result of a
bidder withdrawing its offered price in accordance with article 204.3 of this
Law or to return unsold goods to the seller of goods in accordance with the
agreement. In the absence of any such
agreement, to pay the proceeds to the seller of goods no later than three
working days after receipt of the proceeds from the purchaser or to return the
goods promptly within a reasonable time after the auction.
Article
191 Rights of a seller of goods who is a different entity
from[13] the
auctioneer
Unless otherwise
agreed, a seller of goods
shall have the following rights:
1. To receive the proceeds of goods sold and
the price differential collected as prescribed in article 204.3 of this Law or
to receive the return of unsold goods in the case of an unsuccessful auction;
2. To supervise the holding of the
auction of goods.
Article
192 Obligations of a seller of goods who is a different
entity from[14]
the auctioneer
Unless otherwise agreed, a seller of goods shall have the following
obligations:
1. To deliver the goods to the
auctioneer; to facilitate the auctioneer and the auction participants to
inspect the goods; and to promptly provide complete, accurate and necessary
information relating to the goods to be auctioned;
2. To pay fees for the services of
holding the auction in accordance with article 211 of this Law.
Article 193 Service contracts to hold an auction of
goods
1. A service contract to hold an auction of goods must be
made in writing or in another form with equivalent legal validity.
2. In the case of an auction of pledged or
mortgaged goods, the service contract
to hold the auction must be approved by the pledgee or mortgagee and the
seller must notify the auction participants that the goods are pledged or
mortgaged goods.
3. If an auction is agreed upon in a
pledge or mortgage contract but the pledgor or mortgagor is absent without
legitimate reason or refuses to sign a
service contract to hold an auction of the goods, then a service contract to hold an auction of the
goods shall be signed between the pledgee or mortgagee and the
auctioneer.
Article 194 Determining the reserve price
1. The seller of goods must set a reserve
price. If the auctioneer is authorized to set the reserve price, then the
auctioneer must notify the seller of such price prior to listing notice of the
auction.
2. In the case of an auction of pledged
or mortgaged goods, the pledgee or mortgagee must agree with the pledgor or
mortgagor upon a reserve price.
3. If an auction is agreed upon in a
pledge or mortgage contract but the pledgor or mortgagor is absent without
legitimate reason or refuses to sign a
service contract to hold an auction of the goods, then the pledgee or
mortgagee shall set the reserve price.
Article
195 Notification to people with related interests and
obligations in the case of mortgaged or pledged goods
In a case where the goods to be auctioned are pledged
or mortgaged goods, then at the same time as the auctioneer lists notice of the
auction he shall also notify people with related interests and obligations [of
the particulars] prescribed in article 197 of this Law no later than seven (7)
working days prior to the date on which the auction is to take place.
Article 196 Time-limit for notification and for listing notice of
an auction of goods
1. No later than seven (7)
working days prior to the date on which the auction is to take
place, the auctioneer must list notice of the auction at the place of auction,
at the place where the goods are displayed and at the auctioneer's office, with
the particulars prescribed in article 197 of this Law.
2. Where the auctioneer is the same
entity as the seller of goods, the seller of goods shall make its own decision
on the time-limit for listing notice of the auction.
Article 197 Contents of announcement and of a listed notice of an
auction of goods
An announcement and a listed notice of an auction of
goods must contain all the following particulars:
1. Time
and location of the auction;
2. Name
and address of the auctioneer;
3. Name
and address of the seller of goods;
4. List
of goods and their quantity and quality;
5. Reserve
price;
6. Necessary
information relating to the goods;
7. Location
and time of display of the goods;
8. Location
for, and time of reference to the goods' file;
9. Location
and time of registration to purchase the goods.
Article 198 Persons not permitted to participate in
auctions
[The following persons shall not be permitted to
participate in an auction of goods:]
1. Any person without capacity for civil
acts, who has lost capacity for civil acts or whose capacity for civil acts is
restricted pursuant to the Civil Code or a person who at the time of the
auction is unaware of or is unable to control his or her actions.
2. Any person working in auctioneering
organizations or the parent, spouse or child of such person.
3. Any person who has directly assessed
the goods to be auctioned or the parent, spouse or child of such person.
4. Any other person without the right to
purchase auctioned goods as prescribed by law.
Article 199 Registration of participation in an auction
1. An auctioneer may request a person
wishing to participate in an auction to register for participation before the
auction takes place.
2. The auctioneer may request a person wishing
to participate in an auction to pay a deposit in advance, but any such deposit
shall not exceed two per cent of the reserve price of the goods to be
auctioned.
3. Where a person participating in an
auction purchases the auctioned goods, his or her deposit shall be deducted
from the purchase price; with respect to persons participating in an auction
who do not purchase the auctioned goods, their deposits shall be immediately
refunded to them on completion of the auction.
4. Where a person registers to
participate in an auction and pays a deposit in advance but is thereafter
unable to attend the auction, the auctioneer shall have the right to retain the
deposit.
Article 200 Displaying the goods to be auctioned
Goods, goods samples, materials introducing
the goods and other necessary information about such goods must be displayed at
the location stated in the notice from the date of listing notice of the
auction.
Article 201 Conducting auctions
An auction
shall be conducted in the following order:
1. The auction administrator shall make a
roll call of the persons who have registered to participate in the auction;
2. The auction administrator shall
introduce each of the goods to be auctioned, repeat the reserve prices, answer
questions of the auction participants and invite auction participants to place
bids;
3. With respect to the upward bidding
method, the auction administrator must clearly and accurately announce any bid
which is higher than the previous bid on at least three occasions, with at least
thirty (30) seconds elapsing between each such occasion. The auction
administrator may announce that there is a purchaser of the auctioned goods
only if after repeating the price offered by such person on three occasions, no
other person offers a higher bid;
4. With respect to the downward bidding
method, the auction administrator must clearly and accurately announce any bid
which is lower than the reserve price on at least three occasions, with at
least thirty (30) seconds elapsing between each such occasion. The auction
administrator shall announce immediately the name of the bidder who is first to
accept the reserve price level or a lower price level as the person with the
right to purchase the auctioned goods;
5. In cases where a number of persons
concurrently offer the same final price at an auction using the upward bidding
method, or concurrently offer the initial price at an auction using the
downward bidding method, the auction administrator must organize a drawing of
lots amongst those auction participants and shall announce the person who wins
the drawing of lots as the purchaser of the auctioned goods;
6. The auction administrator must prepare
a deed of auction of goods while still present at the auction, even when the
auction is unsuccessful. The deed of
auction of goods must specify the auction results and be signed by the auction
administrator, the purchaser, and two witnesses from amongst the auction
participants. With regard to auctioned goods which the law requires to be
notarized, the deed of auction of goods must also be notarized.
Article 202 Unsuccessful auctions
An
auction shall be deemed unsuccessful in
the following circumstances:
1. There
are no auction participants
and no bidders;
2. In the case of an auction using the
upward bidding method, the highest bid offered is lower than the reserve price.
Article 203 Deed of auction of goods
1. A deed of auction of goods
means the document confirming the purchase and sale. A deed of auction of goods must contain the
following particulars:
(a) Name
and address of the auctioneer;
(b) Name
and address of the auction administrator;
(c) Name
and address of seller of goods;
(d) Name
and address of purchaser of goods;
(dd) Time and location where the auction was held;
(e) Goods
which were auctioned;
(g) Price
at which the goods were sold;
(h) Names
and addresses of two witnesses.
2. The deed of auction of goods must be
sent to the seller, the purchaser and other related parties.
3. In the case of an unsuccessful auction,
the deed of auction of goods must record that the auction was unsuccessful and must
contain the particulars prescribed in sub-clauses (a), (b), (c), (dd), (e) and
(h) of clause 1 of this article.
Article 204 Withdrawal of bids
1. With respect to the upward bidding
method, if the highest bidder immediately withdraws his or her bid then the
auction shall continue with the bid of the last previous bidder. With respect
to the downward bidding method, if the first person to accept the price
withdraws the accepted price, then the auction shall continue with the bid of
the last previous bidder.
2. Any person who withdraws a bid or
withdraws acceptance of the price shall not be permitted to participate further
in the auction.
3. Where the auctioned goods are sold at
a price lower than a withdrawn bid in an auction by the upward bidding method
or an accepted price which was withdrawn in an auction by the downward bidding
method, the bidder who withdrew his or her bid must pay the price differential
to the auctioneer; but if the goods are sold at a higher price, then the bidder
who withdrew his or her bid shall not be entitled to such price differential.
4. If an auction is unsuccessful, the person
who withdrew his or her bid shall bear the costs of the auction and shall not
be eligible for a refund of his or her deposit.
Article 205 Refusal to purchase
1. Unless otherwise agreed, the purchaser at an auction shall have
binding liability once the auction is declared complete; if thereafter the
purchaser refuses to purchase the goods then such refusal must be accepted by
the seller of goods, but the purchaser must bear all costs related to the
auction.
2. In cases where the successful purchaser
at an auction has paid a deposit in advance but refuses to purchase the goods [after
the auction], such purchaser shall not be entitled to a refund of that deposit
which shall be forfeited to the seller of goods.
Article 206 Registration of ownership
1. The deed of auction of goods shall
serve as the basis for the transfer of ownership in those auctioned goods for which the law requires
ownership to be registered.
2. Based on the deed of auction of goods and other valid
papers, the competent State agency shall be responsible to register the
ownership of goods for the purchaser of auctioned goods in accordance with law.
3. The seller and the auctioneer shall be
obliged to conduct procedures to transfer ownership in auctioned goods to the
purchaser. Unless otherwise agreed, the
expenses of conducting procedures for transfer of ownership shall be deducted
from the proceeds of the sale of goods.
Article
207 Time for payment of the purchase price of goods
The time for payment of the purchase
price of goods shall be as agreed between the auctioneer and the
purchaser; in the absence of any such agreement, the time shall be as
prescribed in article 55 of this Law.
Article
208 Location for payment of the purchase price of goods
The location for payment of the purchase
price of goods shall be as agreed between the auctioneer and the purchaser; in
the absence of any such agreement, the location for payment shall be the
business office of the auctioneer.
Article
209 Time-limit for delivery of auctioned goods
Unless otherwise
agreed between the auctioneer
and the purchaser, the time-limit for delivery of auctioned goods shall be regulated as follows:
1. With regard to goods for which the law
does not require ownership to be registered, the auctioneer must deliver the
goods to the purchaser immediately after the deed of auction of goods is
completed.
2. With regard to goods for which
ownership has to be registered, the auctioneer must immediately conduct
procedures to transfer ownership and must then deliver the goods to the
purchaser immediately after completion of procedures for transfer of ownership.
Article
210 Location for delivery of auctioned goods
1. Where the goods are objects attached to land,
the location for delivery of auctioned goods shall be the location where the
goods are situated.
2. Where the goods are moveable assets, the
location for delivery of auctioned goods shall be the location where the
auction is held, unless otherwise agreed between the auctioneer and the
purchaser of goods.
Article
211 Remuneration for services of holding an auction
Where there is no agreement on the amount
of the remuneration for holding an auction, such remuneration shall be fixed as
follows:
1. In the case of successful auctions,
the remuneration for these auctioneering service shall be fixed in accordance
with article 86 of this Law;
2. In the case of unsuccessful auctions,
the seller must pay a remuneration equal to fifty (50) per cent of the rate of remuneration
as provided for in clause 1 of this article.
Article
212 Costs relating to auctions of goods
Unless otherwise
agreed between the seller of
goods and the auctioneer, costs relating to an auction of goods shall be determined
as follows:
1. The seller of goods must bear the cost
of transportation of the goods to the agreed location and the costs of
preservation of the goods in a case where the goods to be auctioned are not
delivered to the auctioneer for preservation;
2. The auctioneer shall bear the costs of
preservation of delivered goods, the cost of announcement and listing notices,
the costs of holding the auction and other related costs .
Article
213 Liability for auctioned goods which do not conform
with the announcement and listed notices
1. If the auctioned goods do not conform
with the announcement and listed notices, the purchaser shall have the right,
within the time-limit stipulated in article 318 of this Law, to return the
goods to the auctioneer and to request damages for loss.
2. If the auctioneer referred to in
clause 1 of this article is a different entity from the seller of goods and if
the incorrect contents of the announcement and listed notices was the fault of
the seller of goods then the auctioneer shall have the right to return the
goods [to the seller] and to request that the seller pay damages for loss.
Section 3
Tendering of Goods and Services
Article
214 Tendering of goods and
services
1. Tendering
of goods and services means commercial activity whereby one
party purchases goods or services via an invitation to tender (referred to as the
party calling for tenders) aimed at selecting from a number of business
entities participating in the tendering (referred to as the tenderers)
the business entity which best satisfies the requirements stipulated by the
party calling for tenders and which is selected to enter into and to perform a
contract (referred to as the successful tenderer).
2. The
provisions on tendering in this Law shall not apply to tendering for
procurement of goods for public works in accordance with law.
Article 215 Forms of
tendering
1. Tendering
of goods or services shall be conducted in one of the following forms:
(a) Open tendering being the form of
tendering in which the party calling for tenders does not restrict the number
of tenderers;
(b) Limited tendering
being the form of tendering in which the party calling for tenders
invites only a specified number of contractors to participate in the tendering.
2. The
party calling for tenders shall make a decision selecting either the form of
open tendering or the form of limited tendering.
Article 216 Methods of
tendering
1. Methods
of tendering shall comprise single envelope tendering and dual envelope
tendering. The party calling for tenders shall have the right to select the
method of tendering and must provide advance notice of it to the tenderers.
2. Where
tendering is conducted by the single envelope method, the tenderer shall submit
its tender comprising technical and
financial proposals in one envelope in accordance with the requirements in the
tender invitation documents and tender opening shall be conducted once.
3. Where
tendering is conducted by the dual envelope method, the tenderer shall submit
its tender comprising technical and financial proposals in two separate
envelopes at the same time and tender opening shall be conducted on two
occasions. The envelopes containing technical proposals shall be opened first.
Article 217 Prequalification
of tenderers
The party calling
for tenders may hold a prequalification of tenderers in order to select the
tenderers capable of satisfying the requirements set out by the party calling
for tenders.
Article 218 Tender invitation
documents
1. Tender
invitation documents shall comprise the following:
(a) Tender invitation
letter[15];
(b) Requirements in relation to the goods
and services the subject of the tendering;
(c) Method of assessment, comparison and
classification of tenderers and of selection of contractors;
(d) Other instructions relating to the
tendering.
2. The
party calling for tenders shall regulate fees for provision of tender
invitation documents.
Article 219 Tender invitation
letter
1. A
tender invitation letter shall comprise the following main items:
(a) Name and address of the party calling
for tenders;
(b) Brief description of the subject matter of the tendering;
(c) Time- limit, location and procedures for
receipt of tender invitation documents;
(d) Time-limit, location and procedures for
submission of tenders;
(dd) Instructions for reading the tender
invitation documents.
2. The
party calling for tenders shall be responsible to make a wide ranging
announcement on the mass media in the case of open tendering, and to send an
invitation to register for participation in the tendering to contractors who
satisfy the conditions in the case of limited tendering
Article 220 Instructions to
tenderers
The party calling
for tenders shall be responsible for providing instructions to tenderers
concerning the conditions for participation in the tendering and instructions
on the procedures applicable during the tendering process, and for answering
questions raised by tenderers.
Article 221 Management of
tenders
The party calling for tenders shall be responsible
for managing tenders.
Article 222 Security for
participation in tendering
1. Security
for participation in tendering shall be provided in the form of a deposit,
escrow deposit or a tender guarantee.
2. The
party calling for tenders may require tenderers to pay a deposit or escrow
deposit or to provide a tender guarantee when submitting their tenders. The
percentage of a deposit or escrow deposit [to be paid] by a tenderer shall be
fixed by the party calling for tenders but shall not exceed three per cent of
the total estimated value of the goods and services the subject of the
tendering.
3. The
party calling for tenders shall stipulate the method and conditions of paying
the deposit or escrow deposit or of providing a tender guarantee. Deposits and
escrow deposits paid for participation in tendering shall be refunded to losing
tenderers within seven (7) working days from the date of announcement of the
tendering results.
4. A
tenderer shall not be refunded its deposit or escrow deposit paid for
participation in the tendering in cases where the tenderer withdraws its tender
after the expiry of the time-limit for submission of tenders (referred to as tender
closing), or where a successful tenderer fails to sign a contract or
refuses to perform a contract.
5. The
guarantor of a tenderer shall be obliged to provide the beneficiary with a
tender security to the extent of the value equivalent to the amount of a
deposit or escrow deposit.
Article 223 Confidentiality
of tendering information
1. The
party calling for tenders must maintain the confidentiality of tenders.
2. All
organizations and individuals involved in the conduct of tendering, in the
evaluation of tenderers and in the selection of successful tenderers must
maintain the confidentiality of tendering information.
Article 224 Tender opening
1. Tender
opening means holding an opening of tenders at the fixed time, or if no
such time was fixed in advance then the time for tender opening shall be
immediately after tender closing.
2. All
tenders submitted on time must be opened publicly by the party calling for
tenders. Tenderers shall have the right to attend the tender opening.
3. Tender
documents which are not submitted on time shall be rejected and shall be
returned unopened to tenderers.
Article 225 Consideration of
tenders upon tender opening
1. The
party calling for tenders shall consider the validity of tenders.
2. The
party calling for tenders may request tenderers to clarify any unclear items in
their tenders. Any such request and
clarification must be made in writing.
Article 226 Minutes of tender
opening
1. Upon
tender opening, the party calling for tenders and the tenderers in attendance
must sign the minutes of the tender opening.
2. The
minutes of the tender opening must contain the following particulars:
(a) Name of the goods or services the
subject matter of the tendering;
(b) Date, time and location of the tender
opening;
(c) Names and addresses of the party calling
for tenders and of the tenderers;
(d) The tender prices of all tenderers;
(dd) Amendments or additions to any of the
particulars and any other relevant items.
Article 227 Assessment and
comparison of tenders
1. Tenders
shall be assessed and compared with respect to each criterion to provide
grounds for an overall assessment.
The
party calling for tenders shall regulate the criteria for assessment of
tenders.
2. The
criteria as stipulated pursuant to clause 1 of this article shall be evaluated
by marking points out of a total score or in accordance with some other method
as fixed prior to the tender opening.
Article 228 Amendments of
tender documents
1. Tenderers
shall not be permitted to amend their tenders after the tender opening.
2. Throughout
the process of assessment and comparison of tenders, the party calling for
tenders may request tenderers to clarify issues relating to their tenders. Any
such request by the party calling for tenders and any responses from tenderers
must be made in writing.
3. Where
the party calling for tenders amends some contents of the tender invitation
documents, such party must send the written amendments to all tenderers at
least ten (10) days prior to the final deadline for submission of tenders so
that all tenderers will have the opportunity to adjust their tenders.
Article 229 Classification
and selection of contractors
1. On
the basis of the results of assessment of tenders, the party calling for
tenders must classify and select tenderers in accordance with the method
previously fixed.
2. Where
several tenderers obtain equal marks and satisfy the same level of criteria for
winning the tendering, the party calling for tenders shall have the right to
select the successful tenderer.
Article 230 Notification of
tendering results and signing of the contract
1. Immediately
after the tendering results are available, the party calling for tenders shall
be responsible to notify the tenderers of the tendering results.
2. The
party calling for tenders shall complete a contract and arrange signing of the
contract with the successful tenderer on the basis of the following matters:
(a) Tendering results;
(b) Requirements set out in the tender
invitation documents;
(c) Contents of the tender.
Article 231 Security for
performance of the contract
1. The
parties may agree that the successful tenderer must pay a deposit or escrow
deposit or provide a guarantee to secure performance of the contract. The party
calling for tenders shall stipulate the amount of the deposit or escrow deposit
which shall not exceed ten (10) per cent of the contract value.
2. The
means for securing performance of the contract shall be effective up until the
successful tenderer completes discharge of its contractual obligations.
3. Unless
otherwise agreed, the deposit or escrow deposit paid to secure performance of
the contract shall be returned to the successful tenderer upon the liquidation
of the contract. The successful tenderer
shall not be entitled to the return of the deposit or escrow deposit made to
secure performance of the contract if the successful tenderer refuses to
implement the contract after having entered into it.
4. After
the successful tenderer has paid a deposit or escrow deposit to secure
performance of the contract, the deposit or escrow deposit paid as tender
security shall be refunded to the successful tenderer.
Article 232 Reorganization of
tendering
Tendering shall be re-held in one of the following
circumstances:
1. When
there is a breach of the regulations on tendering;
2. When
all tenderers fail to satisfy the requirements of the tendering.
Section 4
Logistic Services
Article 233 Logistic services
Logistic services means commercial
activity whereby a business entity organizes the implementation of one or more
work items including receiving goods; arranging transportation, warehousing,
storage, completion of customs formalities and other documentation procedures; providing
consultancy to clients; packing goods and labelling them with their
codes, and goods delivery or other services relating to goods in accordance
with an agreement with clients in order to enjoy remuneration. The phonetic
transcription of "logistic services" in Vietnamese shall be
"dich vu lo-gi-stic".
Article 234 Conditions for
engaging in the business of logistic services
1. A business entity engaging in the business of logistic services means an
enterprise which satisfies all the
conditions required for the business of logistic services as stipulated by law.
2. The Government shall
provide detailed regulations on the conditions required for the business of
logistic services.
Article 235 Rights and
obligations of business entities engaging in the business of logistic services
1. Unless
otherwise agreed, a business entity engaging in the business of logistic
services shall have the following rights and obligations:
(a) To receive remuneration for logistic
services and other reasonable expenses;
(b) If during the performance of the
contract there is a legitimate reason [for taking action or for not acting]
which will ensure the interests of the
client, then the business entity may perform the contract other than in
compliance with the instructions of the client provided that immediate notice
is served on the client;
(c) To provide immediate notice to the
client requesting further instructions if any event occurs which may result in
non-performance of part or all of the [initial] instructions of the client;
(d) To discharge obligations within a
reasonable period of time if there is no specific agreement on a time-limit for
the discharge of obligations owed to the client.
2. When
arranging transportation of goods, a business entity engaging in the business
of logistic services must comply with the law and practice on transportation.
Article
236 Rights and obligations of
clients
Unless otherwise agreed, a
client shall have the following rights and obligations:
1. To guide, inspect and supervise
performance of the contract;
2. To provide sufficient
instructions to the business entity engaging in the business of logistic
services;
3. To
promptly provide detailed, complete and accurate information about the goods to
the business entity engaging in the business of logistic services;
4. To
pack and code mark the goods in accordance with the contract for the purchase
and sale of the goods, except where there is an agreement that this work will
be undertaken by the business entity engaging in the business of logistic
services.
5. To
pay damages for loss and to pay reasonable costs incurred by the business
entity engaging in the business of logistic services if the latter has
correctly complied with the instructions of the client or if the client is at
fault.
6. To pay all sums falling
due to the business entity engaging in the business of logistic services.
Article 237 Cases where
business entities engaging in the business of logistic services shall be exempt
from liability
1. Apart
from the cases of exemption from liability prescribed in article 294 of this
Law, business entities engaging in the business of logistic services shall not
be liable for loss or damage to goods occurring in the
following circumstances:
(a) Where loss or damage was due to the
fault of the client or of a person authorized by the client;
(b) Where loss or damage arose because the
business entity engaging in the business of logistic services correctly
complied with the instructions of the client or of a person authorized by the
client;
(c) Where loss or damage was due to defects
in the goods;
(d) Where the business entity engaging in
the business of logistic services arranged transportation, loss or damage arose
in circumstance where the law and transportation practice stipulate that such business
entity is exempt from liability;
(dd) Where the business entity engaging in the
business of logistic services does not receive a notice of a complaint within a
time-limit of fourteen (14) days from the date such business entity delivered
the goods to the recipient;
(e) Where, after a complaint has been made,
the business entity engaging in the business of logistic services does not
receive notice of arbitration proceedings or of court proceedings having been
instituted within a time-limit of nine (9) months from the date of goods delivery.
2. A
business entity engaging in the business of logistic services shall not be
liable for loss of profits which the client would have earned where delay in
providing logistic services or provision to the wrong address was not due to
the fault of such business entity.
Article 238 Limitations on
liability
1. Unless
otherwise agreed, the liability of a business entity engaging in the business
of logistic services shall not exceed the limitation of liability in respect of
total loss or damage to the goods.
2. The
Government shall provide detailed regulations regarding limitations on
liability of business entities engaging in the business of logistic services,
consistent with provisions of law and international practice.
3. Business
entities engaging in the business of logistic services shall not be entitled to
the limitations on liability if any person with related rights and interests
proves that loss or damage to goods or
late delivery of the goods was caused by the deliberate action or
inaction of the said business entity with the intention of causing loss or damage
to the goods or of causing late delivery of the goods; [or proves that the
deliberate] action or inaction of the said business entity was taken hazardously
with the knowledge that the loss or damage to goods or the late delivery of the
goods will definitely occur.
Article 239 Right to a lien
over goods and right to dispose of goods
1. A
business entity engaging in the business of logistic services shall have the
right to a lien over a specified quantity of goods and the vouchers relating to
them in order to claim payment of due debts from the client, but such business
entity must provide immediate written notice to the client [of the exercise of
the lien].
2. If
the client fails to pay the debt after forty-five (45) days from the date of
the notice of exercise of a lien over goods or the vouchers relating to them,
the business entity engaging in the business of logistic services shall have
the right to dispose of those goods or their vouchers in accordance with law;
if there are indications that the goods have deteriorated, the right of the
said business entity to dispose of the goods shall arise immediately upon any
debt owed by the client falling due.
3. Prior
to disposing of goods, the business entity engaging in the business of logistic
services must provide immediate notice of disposal to the client.
4. All
costs relating to the exercise of a lien over goods and to the disposal of the
goods shall be borne by the client.
5. A
business entity engaging in the business of logistic services shall be entitled
to use the proceeds from the disposal of goods to pay all debts owed to it by
the client and to pay any related expenses; if the proceeds from the disposal
of the goods exceed the value of the debts, then the excess must be returned to
the client. From that point of time onwards, the business entity engaging in
the business of logistic services shall no longer be liable for the goods or vouchers
disposed of.
Article 240 Obligations of
business entities engaging in the business of logistic services when they
exercise a lien over goods
Business entities
engaging in the business of logistic services who exercise a lien over goods
and who have not yet exercised the right to dispose of goods as prescribed in
article 239 of this Law shall have the following obligations:
1. To preserve and maintain the goods;
2. Not
to be entitled to use the goods without permission of the owner of goods over
which a lien is held;
3. To
return the goods when the conditions for holding a lien over them and for
disposing of them as prescribed in article 239 of this Law no longer exist;
4. To
pay damages for loss to the owner of goods over which a
lien is held if the goods are lost or damaged.
Section 5
Transit of Goods[16]
through the
Article
241 Transit of goods
Transit of goods means the
transportation of goods owned by a foreign organization or individual through
the
Article 244 Right to transit
goods
1. All
goods owned by foreign organizations and individuals shall be permitted to
transit through the territory of Vietnam and shall only be required to conduct
customs clearance procedures at the import and export bordergates in accordance
with law, except for the following:
(a) Goods being weapons of various types,
ammunition, explosive materials and other high risk goods except where permitted
by the Prime Minister of the Government;
(b) Goods in which business is prohibited and goods on the list of prohibited imports and
prohibited exports which shall only be permitted to transit through the
2. Goods
in transit when being exported from, and means of transportation carrying such
goods in transit when exiting the
3. Any
foreign individual or organization wishing to transit its goods through the
territory of Vietnam must hire a Vietnamese business entity engaging in
providing [goods] transiting services to do so, except for the case prescribed
in clause 4 of this article,
4. A
foreign individual or organization shall itself carry out the transiting of
goods through the
Article 243 Routes for
transit
1. Goods shall only be permitted to transit [through the
2. On
the basis of international treaties to which the Socialist Republic of Vietnam
is a member, the Minister of Transport and Communications shall provide
specific regulations on the permissible routes for transportation of goods in
transit.
3. Any
change of a route for transportation of goods in transit during the period of
transit must be approved by the Minister of Transport and Communications.
Article
244 Transit by airlines
Transit of goods by airlines
shall be implemented in accordance with international treaties on aviation to
which the Socialist Republic of Vietnam is a member.
Article 245 Supervision of
goods in transit
Goods being
transited through the
Article 246 Period of transit
1. The
maximum [permissible] period of transit for goods through the
2. Where
goods are in storage in Vietnam or where they are damaged or lost during a
period of transit thereby requiring a further period for storage or rectification
of the damage or loss, the period of transit shall be extended by the amount of
time necessary for such rectification work subject to approval from the customs
agency where transit procedures were completed or subject to approval from the
Minister of Trade in the case of goods being transited pursuant to a permit
issued by the Minister of Trade.
3. During
storage or during rectification of damage or loss as prescribed in clause 2 of
this article, the goods and the means of transportation carrying such goods
shall remain under the supervision of the customs agencies of
Article 247 Goods in transit
which are sold in
1. Goods
in transit in the categories prescribed in clause 1(a) and (b) of article 242
of this Law shall not be permitted to be sold in
2. Apart
from the goods referred to in clause 1 of this article, goods in transit shall
be permitted to be sold in
3. The
sale in
Article 248 Prohibited acts
during transit
1. Payment of remuneration
for goods transiting services by way of the goods in transit.
2. Illegal sale of goods in
transit or of means of transportation carrying such goods.
Article 249 Goods transiting
services
Goods transiting
services means commercial activity whereby a business entity carries out the
transit through the
Article
250 Conditions for conducting
the business of providing transiting services
A business entity engaging in the business of providing
transiting services must be an enterprise with business registration for transportation services or for providing
logistics services pursuant to article 234 of this Law.
Article
251 Contracts for transiting
services
A contract for transiting
services must be made in writing or in another form with equivalent legal validity.
Article 252 Rights and obligations of party hiring transiting services
1. Unless
otherwise agreed, a party hiring transiting services
shall have the following rights:
(a) To request the transiting services
provider to receive goods at the import bordergate at the time specified in the
agreement;
(b) To request the transiting services
provider to promptly notify the status of goods in transit during the period of
their transit through the
(c) To request the transiting services
provider to conduct all necessary procedures to restrict loss and damage to the
goods in transit during the period of their transit through the territory of
Vietnam.
2. Unless
otherwise agreed, a party hiring transiting services shall have the following
obligations:
(a) To bring the goods to the import
bordergate of
(b) To supply the transiting services
provider with all necessary information about the goods;
(c) To supply all necessary vouchers to
enable the transiting services provider to complete procedures for import, for
transportation through the
(d) To pay the transiting services provider
remuneration for the transiting services and other reasonable expenses.
Article
253 Rights and obligations of
transiting service providers
1. Unless
otherwise agreed, a transiting service provider shall have the following
rights:
(a) To request the party hiring the transiting
services to bring the goods to the import bordergate of
(b) To request the party hiring the transiting
services to supply all necessary information about the goods;
(c) To request the party hiring the transiting
services to supply all necessary vouchers to enable completion of procedures
for import, for transportation through the
(d) To receive remuneration for the
transiting services and other reasonable expenses.
2. Unless
otherwise agreed, a transiting service provider shall have the following
obligations:
(a) To receive the goods at the import
bordergate at the time specified in the agreement;
(b) To conduct procedures for importation of
the goods into, and then for exportation of the goods in transit out of the
(c) To be liable for goods in transit during
the period of their transit through the
(d) To complete all necessary procedures in
order to restrict loss and damage to the goods in transit during the period of
their transit through the
(dd) To pay fees and charges and to discharge
other financial obligations applicable to goods in transit in accordance with
the law of
(e) To be responsible for co-ordination with
the authorized State bodies of
Section 6
Assessment
Services
Article 254 Assessment services
Assessment services means commercial
activity whereby a business entity carries out all the necessary work to verify
the actual status of goods, the results of the provision of services and other
matters as requested by clients.
Article
255 Contents of an assessment
An assessment
shall comprise one or more items regarding quantity, quality, packaging, value
of goods, origin of goods, losses or damage, degree of safety, standards of
hygiene, epidemic prevention, results of the provision of services, method of
the provision of services and other matters as requested by clients.
Article 256 Business entities
engaging in the business
of providing assessment services
Only business
entities which satisfy all the conditions stipulated by law and which have been
granted a business registration certificate for commercial assessment services
shall be permitted to provide assessment services and to issue assessment
certificates.
Article 257 Conditions for
engaging in the business
of providing assessment services
A business entity must
satisfy all the following conditions in order to engage in the business of
providing assessment services:
1. It must be an enterprise established in accordance with
law;
2. It
must have assessors who satisfy the criteria prescribed in article
259 of this Law;
3. It
must be capable of implementing the procedures and methods for assessment of
goods or services in accordance with law, international standards or
international practice[17] in the assessment of such
goods or services.
Article 258 Scope of business
of providing assessment services
Business entities
engaging in the business of providing assessment services shall only be
permitted to provide assessment services in sectors of assessment
where they have satisfied all the conditions stipulated in clauses 2 and 3 of
article 257 of this Law.
Article 259 Criteria for
assessors
1. An
assessor must satisfy the following criteria:
(a) Have a university or college level
degree appropriate to the requirements of the sector of assessment;
(b) Have a professional certificate in the
sector of assessment where the law stipulates that such a certificate is required;
(c) Have at least 3 years’ experience
working in the sector of assessment of goods or services.
2. Based
on the criteria stipulated in clause 1 of this article, the director of an
enterprise engaging in the business of providing assessment services recognizes
assessors and shall be responsible before the law for such decision.
Article 260 Assessment
certificates
1. An
assessment certificate means a document verifying the actual status of goods or
services in terms of the matters assessed at the request of the client.
2. An
assessment certificate must be signed by the authorized representative of the
enterprise engaging in the business of providing assessment services, bear the full
name and signature of the assessor and must be sealed with the professional
stamp which has been registered with the competent body.
3. An
assessment certificate shall only be valid with respect to the matters
assessed.
4. The
business entity engaging in the business of providing assessment services shall
be responsible for the accuracy of the results and conclusions set out in the
assessment certificate.
Article 261 Legal validity of
an assessment certificate with respect to the party requesting the assessment
An assessment certificate
shall be binding[18]
on the party requesting the assessment unless that party can prove that the
results of the assessment were not objective, were untruthful or that there
was an error in terms of technical and/or professional aspects of the
assessment.
Article 262 Legal validity of
an assessment certificate with respect to parties to the contract
1. If
parties [to a contract] have an agreement on use of an assessment certificate
issued by a particular business entity engaging in the business of providing
assessment services, then such assessment certificate shall be binding on all
the parties unless they can prove that the results of the assessment were not
objective, were untruthful or that there was an error in terms of technical
and/or professional aspects of the assessment.
2. If
parties [to a contract] do not have an
agreement on use of an assessment certificate issued by a particular business
entity engaging in the business of providing assessment services, then such
assessment certificate shall only be binding on the party requesting the
assessment pursuant to article 261 of this Law. The other party to the contract
shall have the right to request a re-assessment.
3. If
the re-assessment certificate contains results different from those of the
original assessment certificate, the matter shall be dealt with as follows:
(a) If the business entity engaging in the
business of providing assessment services which issued the original assessment
certificate accepts the results contained in the re-assessment certificate,
then the results contained in the re-assessment certificate shall be binding on
all the parties;
(b) If the business entity engaging in the
business of providing assessment services which issued the original assessment
certificate does not accept the results contained in the re-assessment
certificate, then the parties [to a contract] agree on selection of another
business entity engaging in the business of providing assessment services to
conduct a second re-assessment. The results of the second re-assessment shall
be binding on all the parties.
Article 263 Rights and
obligations of business entities engaging in the business of providing
assessment services
1. Business
entities engaging in the business of providing assessment services shall have
the following rights:
(a) To request clients to promptly supply
the complete and accurate materials necessary in order to provide the
assessment services;
(b) To receive remuneration for services and
other reasonable charges.
2. Business
entities engaging in the business of providing assessment services shall have
the following obligations:
(a) To comply with standards and other
provisions of the law relating to assessment services;
(b) To conduct assessments honestly,
objectively, independently, promptly and strictly in accordance with the
procedures for and methods of assessments;
(c) To issue assessment certificates;
(d) To pay fines for errors[19] or damages for loss in
accordance with article 266 of this Law.
Article 264 Rights of clients
Unless otherwise agreed, a client shall have the
following rights:
1. To
request the business entity engaging in the business of providing assessment
services to conduct the assessment in accordance with the items agreed;
2. To
request a re-assessment where there is a legitimate reason to believe that the
business entity which provided the assessment service failed to properly
perform the client's request or conducted the assessment unobjectively,
dishonestly or incorrectly in terms of technical and/or professional aspects of
the assessment.
3. To
request payment of fines for errors or damages for loss in accordance with
article 266 of this Law.
Article 265 Obligations of
clients
Unless otherwise agreed, a client shall have the
following obligations:
1. To
promptly supply, on request, the complete and accurate materials necessary in
order for the business entity to provide the assessment service;
2. To
pay the remuneration for the assessment service and other reasonable charges.
Article 266 Fines for errors and damages for loss for incorrect
assessment results
1. If
a business entity engaging in the business of providing assessment services
issues an assessment certificate with incorrect results due to its negligence
then it must pay the client a fine. The level of the fine shall be as agreed
between the parties but shall not exceed ten times the amount of the remuneration
for the assessment service.
2. If
a business entity engaging in the business of providing assessment services
issues an assessment certificate with incorrect results due to its deliberate
faults then it must pay damages for loss arising to the client who directly
requested the assessment.
3. The client shall be obliged to prove
that the results of the assessment certificate are incorrect and of proving
fault on the part of the business entity which provided the assessment service.
Article
267 Authorization to assess
goods and services
If a foreign
business entity engaging in the business of providing assessment services is
hired to provide an assessment service but it is not yet permitted to operate
in Vietnam, then such business entity may authorize a business entity engaging
in the business of providing assessment services which is permitted to operate
in Vietnam to carry out such service, and the former shall remain liable for
the results of the assessment.
Article 268 Assessments at
the request of State agencies
1. Any
business entity engaging in the business of providing assessment services which
satisfies all the conditions and standards appropriate to the request from a
State agency to conduct an assessment shall be responsible to conduct such
assessment.
2. Any
State agency which requests an assessment shall be responsible to pay fees for
the assessment to the business entity engaging in the business of providing
assessment services in accordance with the agreement between the two parties on
the basis of market prices.
Section 7
Leasing Goods
Article 269 Leasing goods
Leasing goods means commercial
activity whereby one party transfers the right to possess and use goods
(hereinafter referred to as the lessor) to another party (hereinafter
referred to as the lessee) for a specified period of time in order to
receive rent.
Article 270 Rights and
obligations of lessors
Unless otherwise
agreed, a lessor shall have the following rights and obligations:
1. To
deliver the leased goods to the lessee as agreed in the lease contract;
2. To
ensure that the lessee's right to possess and use the leased goods is free from
any dispute with a third party during the term of the lease contract;
3. To
ensure that the leased goods are suitable for the use purpose of the lessee
agreed by the parties;
4. To
maintain and repair the leased goods within a reasonable time. Where the
maintenance and repair of the leased goods adversely effects use of such goods
by the lessee, the lessor shall be liable to reduce the rent or to extend the
term of the lease for a period corresponding to the maintenance and repair
period;
5. To
receive rent as agreed or pursuant to law;
6. To
take back the leased goods upon expiration of the lease.
Article 271 Rights and
obligations of lessees
Unless otherwise agreed, a
lessee shall have the following rights and obligations:
1. To
possess and use the leased goods as agreed in the lease contract and as
stipulated by law. In the absence of any specific agreement on the manner of
using the leased goods, such leased goods must be used in a manner appropriate
to the nature of such goods;
2. To
keep and preserve the leased goods during the term of the lease and to return
them to the lessor upon expiration of the lease;
3. To
request the lessor to maintain and repair the leased goods. If the lessor fails
to discharge this obligation within a reasonable time, the lessee may itself
conduct the maintenance and repair of the leased goods and the lessor must bear
all reasonable charges for such maintenance and repair;
4. To
pay the rent as agreed or pursuant to law;
5. Not
to sell or sub-lease the leased goods.
Article 272 Repairs and
alterations to the initial status of leased goods
1. The
lessee shall not be permitted to repair or alter the initial status of the
leased goods except with the approval of the lessor.
2. Where
a lessee repairs or alters the initial status of the leased goods without the
lessor’s approval, the lessor shall have the right to request the lessee to re-instate
the initial status of the leased goods or to claim damages for loss.
Article 273 Liability for
loss or damage during the term of the lease
1. Unless
otherwise agreed, the lessor shall bear any loss or damage to the leased goods
during the term of the lease if such loss or damage was not caused by the fault
of the lessee.
2. In a
case as prescribed in clause 1 of this article, the lessor shall be responsible
for repairing the leased goods within a reasonable time so as to ensure their
use purpose for the lessee.
Article 274 Transfer of risk
in relation to leased goods
If there is an agreement
between the parties on the transfer of risk to the lessee but the point of time
of such transfer is not fixed, the point of time of transfer shall be
determined as follows:
1. If
the lease contract involves transportation of goods:
(a) If the contract does not require that
the leased goods be delivered to a particular location, the risk shall pass to
the lessee when the leased goods are delivered to the initial carrier;
(b) If the contract does require that the
leased goods be delivered to a particular location, the risk shall pass to the
lessee when the lessee or its nominee receives the goods at such location;
2. Where
the leased goods are received by a bailee for delivery not
being a carrier, the risk shall pass to the lessee on acknowledgment
by the bailee of the lessee's right to possession of the leased goods;
3. In
other cases not covered by clauses 1 or 2 of this article, the risk shall pass
to the lessee on the lessee's receipt of the leased goods.
Article 275 Leased goods which
do not conform with the contract
Where [the
contract] does not contain any specific agreement [on this issue], goods shall
be deemed not to conform with the contract if the goods belong to one of the
following cases:
1. The
goods are unfit for the ordinary use purpose of goods in the same category;
2. The
goods are unfit for the specific purpose about which the lessee informed the
lessor or about which the lessor should have known at the time of entering into
the contract;
3. The
goods are not of the same quality as sample goods previously provided by the lessor
to the lessee.
Article 276 Refusal to
receive goods
1. The
lessor must allow the lessee a reasonable time after receipt of goods to enable
the goods to be inspected.
2. The
lessee shall have the right to refuse receipt of the goods in the following
cases:
(a) The lessor failed to provide the lessee
with the conditions and a reasonable time for inspection of the goods;
(b) Upon the inspection, the lessee
discovered the goods do not conform with the contract.
Article 277 Rectification or
replacement of leased goods not conforming with the contract
1. Where
the lessee refuses receipt of the leased goods because of their non-conformity
with the contract, if the time-limit for delivery of goods has not yet expired,
the lessor may promptly notify the lessee of the lessor's [proposed]
rectification or replacement of the goods and then the lessor may perform such
rectification or replacement of goods within the remainder of the unexpired time-limit.
2. When
the lessor performs rectification as prescribed in clause 1 of this article but
thereby creates a disadvantage for the lessee or causes the lessee to incur
unreasonable expenses, then the lessee shall have the right to require the lessor
to remedy such disadvantage or to pay such expenses.
Article 278 Acceptance of
leased goods
1. The
lessee shall be deemed to have accepted the leased goods after the lessee has
had a reasonable opportunity to inspect the leased goods and has carried out
one of the following acts:
(a) Not refuse to accept the leased goods;
(b) Acknowledge that the leased goods
conform with the agreements in the contract;
(c) Confirm he will accept such goods
despite their non-conformity with the agreements in the contract.
2. If
the lessee discovers the leased goods do not conform with the contract after
having accepted the goods and such non-conformity could have been identified
via a reasonable inspection prior to acceptance, the lessee shall not be
permitted to rely on such non-conformity in order to return the goods.
Article 279 Withdrawal of
acceptance
1. A
lessee may withdraw its acceptance of part or all of the leased goods if the
non-conformity of such leased goods results in the inability of the lessee to
achieve its objective in signing the contract and falls within one of the
following cases:
(a) The lessor fails to carry out
rectification in a reasonable manner in accordance with article 277 of this
Law;
(b) It was because of the lessor's assurances
that the lessee was unable to discover the non-conformity of the goods.
2. Any
withdrawal of acceptance must be carried out within a reasonable time which
shall not exceed three months as from the date the lessee accepted the goods.
Article 280 Liability for
defect in leased goods
Unless otherwise
agreed, liability for any defect in leased goods shall be regulated as follows:
1. During
the term of the lease, the lessor shall be liable for any defect at all in the
leased goods which already existed at the time of the delivery of the leased
goods to the lessee, except for the cases prescribed in clauses 2 and 3 of this
article;
2. The
lessor shall not be liable for any defect in the leased goods which already
existed at the time of entering into the contract about which the lessee knew
or should have known;
3. The
lessor shall not be liable for any defect in the leased goods which is
discovered after the lessee has accepted the goods and which defect could have
been identified by the lessee via an inspection in a reasonable manner before
accepting the goods;
4. The
lessor shall be liable for any defect in the goods arising after the time risk
passed if such defect results from the lessor's breach of the obligations
undertaken by him.
Article 281 Sub-lease
1. A
lessee shall only be permitted to sub-lease the goods with the lessor’s
consent. The lessee shall be liable for the sub-leased goods unless otherwise
agreed with the lessor.
2. If
the lessee sub-leases the leased goods without the lessor’s approval, the
lessor shall have the right to rescind the lease contract. The sub-lessee shall
be responsible to immediately return the goods to the lessor.
Article 282 Benefits arising
during the term of a lease
Unless otherwise
agreed, all benefits arising from the leased goods during the term of a lease
shall belong to the lessee.
Article 283 Changes in
ownership during the term of a lease
Any changes in
ownership of leased goods shall not affect the validity of the lease contract.
Section 8
Franchising
Article 284 Franchising
Franchising means a
commercial activity whereby a franchisor authorizes and requires a franchisee
to conduct on its own behalf the purchase and sale of goods or provision of
services in accordance with the following conditions:
1. The
purchase and sale of goods or provision of services be conducted according to
the method of business organization specified by the franchisor and be
associated with the trademark, trade name, business know-how, business mission
statements, business logo and advertising of the franchisor.
2. The
franchisor has the right to control and offer assistance to the franchisee in
the conduct of the business.
Article 285 Franchise
contracts
A franchise
contract must be made in writing or in another form with equivalent legal
validity.
Article 286 Rights of
franchisors
Unless otherwise agreed, a franchisor shall have the
following rights:
1. To
receive royalty.
2. To
organize advertisement for the franchise system and franchise network.
3. To
conduct regular or random inspections of the operations of the franchisee in
order to ensure uniformity of the franchise system and the consistency of the
quality of the goods or services.
Article 287 Obligations of
franchisors
Unless otherwise agreed, a franchisor shall have the
following obligations:
1. To
provide the franchisee with the disclosure document[20] on the franchise system.
2. To
provide the franchisee with initial training and ongoing technical assistance
to enable [the franchisee] to operate [the business] in accordance with the
franchise system.
3. To
design and layout the goods or service sales outlet at the cost of the
franchisee.
4. To
ensure the intellectual property rights in respect of the objects set out in
the franchise contract.
5. To
accord equal treatment to franchisees in the franchise system.
Article 288 Rights of
franchisees
Unless otherwise agreed, a franchisee shall have the
following rights:
1. To
require the franchisor to provide all technical assistance related to the franchise
system.
2. To
require the franchisor to accord equal treatment to franchisees in the
franchise system.
Article 289 Obligations of
franchisees
Unless otherwise
agreed, a franchisee shall have the following obligations:
1. To
pay royalty and other amounts payable under the franchise contract.
2. To
invest in adequate infrastructure[21], finance and human
resources in order to receive rights and business know-how transferred by the
franchisor.
3. To
submit to the control, supervision and guidelines of the franchisor; to comply
with the requirements of the franchisor regarding designs and layout of the
sales or service outlet.
4. To
keep confidential the business know-how transferred, even after the expiry or
termination of the franchise contract.
5. To
cease to use any trademark, trade name, business slogan, business logo and
other intellectual property rights (if any) or the system of the franchisor
upon expiry or termination of the franchise contract.
6. To
operate [the business] in accordance with the franchise system.
7. Not
to sub-franchise without the consent of the franchisor[22].
Article 290 Sub-franchise to
a third party
1. A
franchisee shall have the right to sub-franchise to a third party (referred to
as the sub-franchisee) with the consent of the franchisor.
2. A
sub-franchisee shall have the rights and obligations of a franchisee prescribed
in articles 288 and 289 of this Law.
Article 291 Registration of
franchise
1. Prior
to commencing franchising, a prospective franchisor must register with the
Ministry of Trade.
2. The
Government shall provide detailed regulations regarding the conditions for
operating in the franchise form and on the order and procedures for
registration of franchises.
CHAPTER 7
Remedies in Commerce
and
Dispute Resolution
in Commerce
Section 1
Remedies in Commerce
Article 292 Types of remedies
in commerce
2. Penalty
for breach.
3. Damages
for loss*.
4. Temporary
cessation of contractual performance.
5. Suspension
of contractual performance.
6. Rescission
of contract.
7. The
parties may agree to apply other types of remedies provided that such remedies
are not contrary to the fundamental principles of the law of
Article 293 Imposition of
remedies in commerce for insubstantial breaches
Unless otherwise
agreed, an aggrieved party shall not be permitted to impose a temporary
cessation of contractual performance, to suspend contractual performance or to
rescind the contract for an insubstantial breach.
Article 294 Immunity from
liability for acts in breach
1. A
party in breach of contract shall be immune from liability in the following
cases:
(a) Upon the occurrence of any event for
which the parties have agreed there will be immunity from liability;
(b) Upon the occurrence of an event of force
majeure;
(c) Upon a breach by one party which was
totally due to the fault of the other party;
(d) Upon a breach by one party which was due
to implementation of a decision of a competent State administrative agency
about which the parties could not have known at the time of entering into the
contract.
2. The
party in breach of the contract shall bear the burden of proof that an event is
one [for which the party in breach is entitled to] immunity from liability.
Article 295 Notification and
certification[23]of
events for which the party in breach is entitled to immunity from liability
1. A
party in breach of the contract must provide immediate written notice to the
other of an event for which the former party is entitled to immunity from
liability and of the possible consequences of such event.
2. On
termination of the event for which the party in breach is entitled to immunity
from liability, such party must promptly notify termination to the other party;
and the party in breach must pay damages for loss if it fails to notify or
fails to promptly notify the other party.
3. The
party in breach shall bear the burden of proving to the aggrieved party that an
event is one for which the party in breach is entitled to immunity from
liability.
Article 296 Extension of
time-limit [for contractual performance], refusal to perform a contract upon
occurrence of an event of force majeure
1. Upon
occurrence of an event of force majeure the parties may agree to extend the
time-limit for performance of contractual obligations; if the parties have no
agreement or fail to reach agreement then the time-limit for performance of
contractual obligations shall be extended for an additional period of time
equal to the length of such event of force majeure plus a reasonable amount of
time for remedying the consequences of such event, but not to exceed the
following time-limits:
(a) Five (5) months in respect of goods or
services for which the agreed time-limit for delivery or provision is not more
than twelve (12) months as from the date the contract was entered into;
(b) Eight (8) months in respect of goods or
services for which the agreed time-limit for delivery or provision is more than
twelve (12) months as from the date the contract was entered into.
2. Once
the time-limits prescribed in clause 1 of this article have expired, the
parties shall have the right to refuse to perform the contract and neither
party shall have the right to demand that the other party pay damages for loss.
3. Any
party which refuses to perform a contract must, within a time-limit not to
exceed ten (10) days from the date of expiry of the time-limits prescribed in
clause 1 of this article, serve advance notice of refusal to perform the
contract on the other party prior to commencement by the other party of
discharge of its contractual obligations.
4. The
extension of the time-limit for performance of contractual obligations
prescribed in clause 1 of this article shall not apply to contracts for
purchase and sale of goods or to contracts for provision of services with a
fixed time-limit for delivery of goods or for provision of the service.
Article 297 Specific
performance of contracts
1. Specific
performance of a contract means the aggrieved party requests the
defaulting party to properly implement the contract or to take other
measures to cause the contract to be performed, and the defaulting party shall
bear any costs incurred.
2. Where
the defaulting party fails to deliver all goods or provides services which do
not conform to the contract, such party shall be obliged to deliver all goods
or provide services in accordance with the contractual terms and conditions. If
the defaulting party delivers goods or provides services of poor quality, it
shall be obliged to rectify the defect in the goods or services or to deliver
substitute goods or to provide proper services in accordance with the contract.
The defaulting party may not use money or goods of other types or other
services as substitutes without the consent of the aggrieved party.
3. If
the defaulting party fails to comply with clause 2 of this article, the
aggrieved party shall have the right to purchase goods or services of the
correct type as stipulated in the contract from other parties as substitutes
and [any] price differential and related costs shall be paid by the defaulting
party; and the aggrieved party shall have the right to itself rectify the
defect in the goods or services and the reasonable costs thereof shall be paid
by the defaulting party.
4. Where
the defaulting party has discharged all its obligations stipulated in clause 2
of this article, the aggrieved party must receive the goods or services and
must make payment therefor.
5. If
the defaulting party is the purchaser, then the seller shall have the right to
demand that the purchaser pays for and receives the goods or discharges other
obligations set out in the contract and in this Law.
Article 298 Extension of
time-limit for performance of obligations
In a case of
specific performance of a contract, the aggrieved party may extend the
time-limit by a reasonable period in order for the defaulting party to perform
its obligations.
Article 299 Relationship
between specific performance and other remedies
1. Unless
otherwise agreed, during the period of application of the remedy of specific
performance the aggrieved party shall have the right to claim damages for loss
and penalty for breach but it shall not be permitted to apply other types of
remedies.
2. If
the defaulting party fails to perform the remedy of specific performance of a
contract within the time-limit fixed by the aggrieved party, the aggrieved
party shall be permitted to apply other remedies in order to protect its
legitimate rights.
Article 300 Penalty for
breach
Penalty for
breach [is a remedy whereby] the aggrieved party requires the defaulting party
to pay a penalty sum for breach of contract where this is so agreed in the
contract, except for cases of immunity from liability prescribed in article 294
of this Law.
Article 301 Level of penalty
The level of
penalty in respect of any one breach of a contractual obligation or the total
amount of penalty in respect of more than one breach shall be as agreed by the
parties in the contract, but shall not exceed eight (8) per cent of the value
of the contractual obligation which is
the subject of the breach except for the cases prescribed in article 266 of
this Law.
Article 302 Damages for loss
1. Damages
for loss means the defaulting party pays compensation for the loss or
damage caused to the aggrieved party by a breach of the contract.
2. The
value of damages for loss shall comprise the value of the actual and direct
loss which the aggrieved party has had to bear due to the defaulting party plus
the [loss of] direct profits which the aggrieved party would have earned in the
absence of such breach.
Article 303 Grounds
for liability
to pay damages for loss
Except for cases
of immunity from liability prescribed in article 294 of this Law, liability to
pay damages for loss shall arise when the following factors exist:
1. There
is an act in breach of the contract;
2. There
occurs an actual loss;
3. The
act in breach of the contract is the direct cause of the loss.
Article 304 Burden of proof
of loss
The party
claiming damages for loss shall bear the burden of proof of the loss and amount
of loss attributable to the act of breach, and of the loss of direct profits
which the aggrieved party would have earned in the absence of such breach.
Article 305 Obligation to
mitigate loss
The party
claiming damages for loss must take reasonable measures to mitigate the loss
caused by a breach of the contract including the loss of direct profits which
would have been earned in the absence of such breach. If the party claiming
damages fails to take such action, the defaulting party shall have the right to
require a reduction in damages equal to the amount of loss that could have been
mitigated.
Article 306 Right to claim
interest on delayed payment
If the defaulting
party delays in making payment for goods or payment of the service charges and
any other reasonable fees, the aggrieved party shall have the right to demand
interest on such delayed payment at the average interest rate applicable to
overdue debts in the market at the time of such payment for the delayed period,
except where otherwise agreed by the parties or where the law otherwise
provides.
Article 307 Relationship
between remedy of penalty for breach and remedy of damages
1. If
the parties do not have a specific agreement on penalty for breach, the
aggrieved party shall only have the right to demand damages for loss except
where this Law otherwise provides.
2. If
the parties do have a specific agreement on penalty for breach, the aggrieved
party shall have the right to apply both the remedy of penalty for breach and
the remedy of damages, except where this Law otherwise provides.
Article 308 Temporary
cessation of contractual performance
Except for cases
of immunity from liability prescribed in article 294 of this Law, temporary
cessation of contractual performance means one party temporarily ceases the
performance of its contractual obligations in one of the following cases:
1. Upon
occurrence of an act of breach which the parties have agreed shall be a
condition [automatically] resulting in temporary cessation of contractual
performance;
2. When
one party commits a substantial breach of the contractual obligations.
Article 309 Legal
consequences of temporary cessation of contractual performance
1. A
contract for which there is a temporary cessation of contractual performance
shall remain of full force and effect.
2. The
aggrieved party shall have the right to claim damages for loss in accordance
with this Law.
Article 310 Suspension of
contractual performance
Except for cases
of immunity from liability prescribed in article 294 of this Law, suspension of
contractual performance means one party terminates implementation of its
contractual obligations in one of the following cases:
1. Upon
occurrence of an act of breach which the parties have agreed shall be a
condition [automatically] resulting in suspension of contractual performance.
2. When
one party commits a substantial breach of the contractual obligations.
Article 311 Legal
consequences of suspension of contractual performance
1. When
a contract is suspended from performance, it shall be deemed to have terminated
as from the time of receipt by one party of a notice of suspension. Neither
party shall any longer be required to perform its contractual obligations. The
party which has performed its obligations shall have the right to demand that
the other party pay or perform its corresponding obligations.
2. The
aggrieved party shall have the right to claim damages for loss in accordance
with this Law.
Article 312 Rescission of
contract
1. Rescission
of contract shall include rescission of part of a contract and rescission of an
entire contract.
2. Rescission
of an entire contract means the complete annulment of the performance of all
contractual obligations of the entire contract.
3. Rescission
of part of a contract means the annulment of the performance of some of the
contractual obligations while other sections of the contract still remain of
full force and effect.
4. Except
for cases of immunity from liability prescribed in article 294 of this Law, the
remedy of rescission of the contract shall apply in the following cases:
(a) Upon occurrence of an act of breach
which the parties have agreed shall be a condition [automatically]
resulting in rescission of the contract;
(b) When one party commits a substantial
breach of the contractual obligations.
Article 313 Rescission of
contract in cases of delivery of goods or provision of services on a
piecemeal basis
1. Where
the parties to a contract agree upon the delivery of goods or provision of
services on a piecemeal basis and one party fails to perform its obligations
regarding delivery of goods or provision of services and such failure
constitutes a substantial breach of the delivery of goods or provision of
services on such occasion, the other party shall have the right to declare the
rescission of the contract as it applies to such single delivery of goods or
provision of services.
2. Where
a party fails to perform its obligation regarding a single delivery of goods or
provision of services and such failure provides the basis for the other party
to conclude that a substantial breach of the contract will occur with regard to
subsequent deliveries of goods or provisions of services, then the aggrieved
party shall have the right to declare the rescission of the contract applicable
to such subsequent deliveries of goods or provisions of services on condition
that such latter party exercises this right within a reasonable time.
3. Where
a party has declared the rescission of the contract applicable to a single
delivery of goods or provision of services, that party shall still have the
right to declare the rescission of the contract applicable to subsequent
deliveries of goods or provisions of services which have been implemented or
which are yet to be implemented if the interrelation between the deliveries of
goods [or provisions of services] results in the delivered goods or provided
services being unable to be used for their proper purpose as originally
intended by the parties at the time they entered into the contract.
Article 314 Legal
consequences of rescission of contract
1. Except
for the cases stipulated in article 313 of this Law, after a contract has been
rescinded it shall no longer be effective as from the time it was entered into,
and the parties shall not be required to continue performance of their
contractual obligations except for agreed provisions on rights and obligations
applicable after rescission or on dispute resolution.
2. Any
one party shall have the right to claim benefits [generated to the other party]
by the performance by the former party of its contractual obligations. If both
parties are obliged to make a refund then these obligations must be performed
concurrently; and if it is impossible to refund the exact benefits which one
party has gained, such party shall be obliged to make a refund in cash.
3. The
aggrieved party shall have the right to claim damages for loss in accordance
with this Law.
Article 315 Notice of temporary
cessation of performance of contract, of suspension of contractual performance,
and of rescission of contract
Any party which temporary
ceases performance of a contract, suspends contractual performance or rescinds
a contract must immediately notify the other party of such temporary cessation,
suspension or rescission. In case of a
failure to do so which results in loss to the other party, then the party which
temporary ceased performance of the contract, suspended contractual performance
or rescinded the contract must pay damages for loss.
Article 316 Right to claim
damages for loss when other remedies have already been applied
The right of a
party to claim damages for loss for a breach of contract by the other party
shall be preserved after other remedies have been applied.
Section 2
Commercial
Dispute Resolution
Article
317 Forms of dispute resolution
[Forms of commercial
dispute resolution in commerce shall comprise:]
1. Negotiation between the parties.
2. Conciliation
between the parties in which a body, organization or individual selected by the
parties acts as mediator.
3. Resolution by arbitration or by a court.
Procedures for
commercial dispute resolution by arbitration or by a court shall be those
litigation procedures which the law stipulates are applicable to arbitration or
to courts.
Article
318 Limitation period for
lodging complaints
Except for the
case stipulated in clause 1(dd) of article 237 of this Law, the limitation
period for a complaint shall be as agreed upon by the parties, but
in the absence of such agreement the limitation period for a complaint shall be
regulated as follows:
1. With
respect to a complaint relating to the quantity of goods, three months from the
date of delivery of goods;
2. With
respect to a complaint relating to the quality of goods, six (6) months from
the date of delivery of the goods or if the goods are under warranty then three
months from the expiry date of the warranty period;
3. With
respect to complaints relating to other breaches, nine (9) months from the date
on which the defaulting party should have discharged its contractual
obligations under the contract, or in the case of [goods] under a warranty nine
(9) months from the expiry date of the warranty period.
Article
319 Limitation period for
initiating legal actions
The limitation
period for initiating legal action applicable to commercial disputes shall be
two (2) years from the time of infringement of lawful rights and interests,
except for the case stipulated in clause 1(dd) of article 237 of this Law.
Chapter 8
Dealing with Breaches of Commercial
Legislation
Article 320 Acts constituting a breach of commercial
legislation
1. Acts
constituting a breach of commercial legislation shall comprise:
(a) Breach
of provisions on business registration; on business licences of business
entities; on establishment and operation
of representative offices and branches of Vietnamese business entities and of
foreign business entities;
(b) Breach
of provisions on goods and services traded domestically and goods and services
imported or exported; temporarily imported for re-export and temporarily exported
for re-import; [goods] transfer via bordergates, and [goods] in transit;
(c) Breach
of provisions on the tax regime, on invoices, source documents, books of
account and accounting reports;
(d) Breach
of provisions on price of goods and services;
(dd) Breach of provisions on labelling of goods circulating
domestically and labelling of imported and exported goods;
(e) Smuggling,
conducting business in goods illegally imported, trading counterfeit goods or
raw materials and supplies for producing counterfeit goods, and conducting
illegal businesses;
(g) Breach
of provisions relating to quality of goods and services in which business is
conducted domestically and relating to quality of imported and exported goods
and services;
(h) Deceiving
and defrauding customers when purchasing and selling goods and services;
(i) Breach
of provisions on protection of consumer rights;
(k) Breach
of provisions on intellectual property rights with respect to goods and
services in which business is conducted domestically and with respect to
imported and exported goods and services;
(l) Breach
of the provisions on origin of goods;
(m) Other
breaches during commercial activities as stipulated by law.
2. The Government shall provide specific
regulations on acts constituting a breach of commercial legislation as referred
to in clause 1 of this article.
Article 321 Forms of dealing with a breach of
commercial legislation
1. Depending on the nature, seriousness
and consequences of a breach, organizations and individuals shall be dealt with
in one of the following forms:
(a) By
imposition of a [administrative] penalty in accordance with the law on dealing
with administrative offences;
(b) Where
the act in breach contains sufficient elements to constitute a crime, the offender
shall be prosecuted for criminal liability in accordance with law.
2. Where the act of breach causes harm to
the interests of the State or to the lawful rights and interests of
organizations and individuals, compensation must be paid in accordance with
law.
Article 322 Imposition of [administrative] penalties
for administrative offences during commercial activities
The Government shall provide specific
regulations on imposition of [administrative] penalties for administrative
offences during commercial activities.
Chapter 9
Implementing
Provisions
This Law
shall be of full force and effect as of
This Law
shall replace the Commercial Law dated
Article 324
The Government
shall provide detailed regulations and guidelines for implementation of this
Law.
This Law was passed by Legislature XI of the National
Assembly of the Socialist Republic of Vietnam at its 7th Session on 14 June
2005.
The Chairman of the National Assembly
NGUYEN VAN AN
[1] Phillips Fox Note: The literal
translation is "where the goods are the object of a security measure for
the performance of a civil obligation".
[2] Phillips Fox Note: The literal translation is “ goods which are being transported”.
[3] Anh’s Note: An alternative translation
is "trading of commodities".
The Vietnamese term is exactly the same as “sale and purchase of goods” defined
in article 3.8 so I have continued to use that term for consistency. The term
“trade” is used in this chapter where its corresponding Vietnamese term has the
meaning of “carry out a transaction”.
[4] Phillips
Fox Note: The literal translation is “make a payment in
cash and not accept the goods”.
[5] Phillips Fox Note: The literal translation is “ business entities broking sale and purchase
of goods”.
[6] Phillips Fox Note: In English
this proposition is usually expressed as "A broker shall only be permitted
to trade for the account of others and shall not be permitted to trade for his
own account".
[7] Phillips Fox Note: The literal
translation is "service price".
[8] Phillips Fox Note: The literal
translation is "information contents" but "details" is used
throughout.
[9] This is the literal
translation
[10] This is the literal
translation. In Vietnamese the term “authorized dealer” is literally “party
receiving the authorization”
[11] The literal translation is
“receive”
[12] Phillips Fox Note: It is suggested
that the literal translation "where the auctioneer is not the seller of
goods" is confusing because in one sense the auctioneer is of course the
seller of goods. The meaning here is that the auctioneer is a different entity
from the seller of goods as defined in this Law.
[13] The literal translation is “who
is not”
[14] The literal translation is “who is not”
[15] The literal translation is
“tender invitation notice”
[16] Phillips Fox Note: An alternative
translation for "goods" throughout this section is "cargo".
[17] Phillips Fox Note: The literal
translation is "or standards which many countries have widely
applied…".
[18] Phillips Fox Note: The literal
translation is "legally valid with respect to the party.."
[19] The literal translation is
“breaches”
[20] Phillips Fox Note: The literal
translation is "manual" or "guiding document".
[21] Phillips Fox Note: The literal
translation is "physical facilities".
[22] Phillips Fox Note: Literally
"Not to sub-franchise in a case where the franchisor does not
consent".
[23] Phillips Fox Note: Although the
heading contains "certification", the text of article 295 does not
contain any provision on certification (there was such a provision in the draft
but it has been taken out of the final Law), so query whether
"certification" should be taken out of the heading.