DISPUTE RESOLUTION THROUGH ARBITRATION

Dispute resolution methods are litigation, negotiation, mediation and arbitration. Handing disputes requires litigation law firm with dispute lawyers in Vietnam having experience and knowledge to provide resolutions to complex cross-border issues, commercial and civil disputes.

In the current business environment, most business agreements could contain a clause stipulating that disputes arisen must be resolved in arbitration.  For a dispute to be referred to arbitration, there must be a valid arbitration agreement in writing, either as an arbitration clause within a contract or a separate agreement.  If the agreement is included within the context of a contract, the arbitration clause is considered independent, and any modification, extension, or termination of the contract does not affect the validity of the arbitration clause. Vietnamese law allows for a written arbitration agreement to take the form in any written form, so long as the writing clearly indicates the parties’ intent to resolve any dispute via arbitration. If a dispute falls within the scope of a valid arbitration agreement, but a party attempts to initiate court proceedings, the residing court does not have jurisdiction over the matter, and must drop the case. Moreover, an arbitration agreement does not have to stipulate specific dispute matters and/or the arbitration organization authorized to resolve disputes without supplemental agreement.  Even if there is a valid arbitration agreement, Vietnamese Arbitration Law stipulates that in order for a dispute to go to arbitration, it must also fit into one of three categories: (1) disputes arising from “commercial activities”; (2) disputes where at least one party is engaged in commercial activities; (3) other disputes where the law stipulates that arbitration is a permissible means of resolution.  In category (1), the term “commercial activity” is defined in Commercial Law No. 36-2005-QH11 (31 December 2005) as “activity for profit-making purposes comprising the purchase and sale of goods, provision of services, investment, commercial enhancement, and other activities for profit-making purposes.”  The types of disputes that often fall into the second category are noncommercial disputes, such as civil disputes, where at least one party to the dispute is engaged in commercial activities. However, this category does not apply in disputes between a good/service provider and a consumer. In this case, the law allows the party to choose between litigation and arbitration. Even the agreement includes a standard arbitration clause in the supply of goods or services contract, the dispute may not be arbitrated without the consumer’s consent. The final category of disputes permissible for arbitration gives legislators discretion to expand or maintain the types of disputes resolved through arbitration.  An example of a category (3) dispute is a dispute arising from investment activities governed by the Law on Investment.

Arbitration has become an extremely popular method of dispute resolution, as many businesses prefer it over the high costs of litigation.

For advise or service request, please contact us via email ant@antlawers.vn,To learn more about us, please visit www.antlawyers.vn 

ANT Lawyers is a Vietnam law firm with international standards, recognized by IFLR1000 on Financial and Corporate practice.  We are an exclusive Vietnam member of Prae Legal, the global law firm network covering more than 150 jurisdictions.  The firm provides a range of legal services as following to multinational and domestic clients.

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HOW TO PROTECT TRADEMARK IN VIETNAM

Trademark protection in Vietnam is initially obtained through trademark registration.  Litigation is the final measure to handle dispute during trademark protection.

Trademark is a sign that help distinguish the goods or services of one enterprise from those of others. Together with industrial design and patent, trademark of goods and services plays an extremely important role for the growth of the enterprise. Trademark establishes a link between enterprise and customer.  A strong trademark will attract customers to use goods or services. When trademark is popular and economic benefits achieved through sale of goods or provision of services coupled with trademark is large, the violation of trademark is inevitable.

The annual reports of the Vietnam National Office of Intellectual Property (NOIP) prove that trademark violation in Vietnam is the most popular, among other industrial property rights.  According to the preliminary annual report in 2011, and 2012, there has been more than 1,000 cases of trademark violations each year.  Report of 2013 shows more than 2,000 trademark infringements were handled with the total fines of trademark violators of around USD 1 million.  Having said that, it is important for trademark owner to register trademarks in Vietnam for better protection.  This is also suggested for even well-known trademarks.

For registration, trademark owner has two options: either directly register trademark in Vietnam by filling an application for registration with the Vietnam NOIP, or seek the protection in Vietnam through Madrid’s system.  For the first option, the trademark owner needs to prepare, file for registration, and pay fee as the requirement of Vietnam Intellectual Property law.  In case trademark needs to be protected in a number of nations, including Vietnam, trademark owner may register trademark through Madrid’s system.

Where the violation of trademark occurs, trademark owner needs to judge the level of infringement, level of damage to choose suitable resolutions.  Initially, the trademark owner may protect by requiring to the trademark violator to terminate the infringing acts, apologize, and rectify. In case of being damaged, trademark owners have rights to claim compensation.  If failing to reach result, trademark owner may use settlement mechanism through negotiation or mediation or could request the competent state agencies to handle acts of infringement through i.e. filling a denunciation application and submitting to the Vietnam NOIP.  Litigation might be required to handle acts of infringement.  Generally, the proceeding of civil litigation is more complex than the arbitration proceeding. In cases the trademark owner needs a decision from court in order to end trademark infringement, civil litigation is top priority. In the remaining cases, arbitration is a better choice with advantages of cheaper cost, shorter settling time, and more flexible.

At ANT Lawyers, a law firm in Vietnam with offices in law office Hanoi and Ho Chi Minh City, we are available to assist clients in intellectual properties and handle disputes in regard to intellectual properties matters to help clients protect their best interests in Vietnam. We could be reached 

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CONSTRUCTION CONTRACT IN VIETNAM

In Vietnam, like other countries companies seeking to build an office building or industrial facility work with the contractor through a construction contract.

There are several types of construction contract used in the construction industry depending on the level of control from parties involved in terms of investment, responsibilities and duration.

Fixed price is a type of construction contract that offer a total fixed priced for all construction related activities. This contract type could include incentives or benefits for early termination, or can also have penalties, called liquidated damages, for a late termination. This contract type is preferred when a clear scope and a defined schedule has been reviewed and agreed upon.

Cost plus contract is a type of construction contract involves payment of the actual costs, purchases or other expenses generated directly from the construction activity. This type of contract must contain specific information about certain pre-negotiated amount (some percentage of the material and labor cost) covering contractor’s overhead and profit. Costs must be detailed and should be classified as direct or indirect costs.

Time and material contract is usually preferred if the project scope is not clear, or has not been defined. The owner and the contractor must establish an agreed hourly or daily rate, including additional expenses that could arise in the construction process. The costs must be classified as: direct, indirect, mark-up, and overhead. Sometimes the owner might want to establish a cap or specific project duration to the contractor that must be met, in order to have the owner’s risk minimized.

ANT Lawyers is a Vietnam law firm with international standards, recognized by IFLR1000 on Financial and Corporate practice. We are an exclusive Vietnam member of Prae Legal, the global law firm network covering more than 150 jurisdictions. The firm provides a range of legal services as following to multinational and domestic clients.

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