Which Form of Investment - Branch or Company?

Foreign entities can set-up branch offices or set-up company in Vietnam to carry out business activities.

 

There are several main different aspects between opening a branch office or establishing a foreign owned company in Vietnam.

Conditions

Permits for establishment of Vietnam-based branches of foreign enterprise shall each have a valid term of five years.

Foreign enterprise must choose between establishing a 100% foreign capital enterprise or forming a joint-venture with domestic investor or company.

Certificate

The Branch office needs to apply and obtain the operation license of a Branch;

A foreign owned company will need to apply and obtain the investment certificate (“IC”) to operate in Vietnam.

Capital

Optional, foreign entity will decide how much money to invest in branch. The allocation capital for branch is capital for the subordinate units.

Mandatory, foreign entity will need to provide minimum capital as required by Vietnam Law in conditional investment area.

Obligation of owner

For branch office in Vietnam, owner takes full responsibility;

For company, owner takes responsibility within the capital contributed into the company in Vietnam;

Other matters

For branch office setting up in Vietnam, the procedure is less complicated compared to those for the establishment of a 100% foreign owned company;  the branch office is able to carry out trading and some other activities as stipulated by Vietnam laws and the WTO commitments which Vietnam enters. The business lines of a branch have to be aligned with the business lines of the headquarter of the foreign entity.

Setting up foreign owned company would be more complicated than the setting up of the branch office, however this form of investment has more flexibility and freedom as it is an independence Vietnam entity recognized under Vietnam laws

We are a law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

 

 

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The Regulation on Science and Technology Enterprises in Vietnam

The science and technology enterprises (S&T Enterprises) means an enterprise implementing production and business science and technology service to make a goods or product from results of science research and technology development. The S&T Enterprise’s operation is based on the successful application and exploitation of research process in itself or the results of scientific and technological research from the scientists, organizations or research results transferred from abroad that they have the lawful ownership use rights. The Government issued the Decree No. 13/2019/ND-CP dated on February 01^st, 2019 on science and technology enterprises.

 

The setting up of S&T Enterprises in Vietnam is only acceptable when meeting the following conditions for granting Certificates of science and technology enterprise, which is acting as operation license as well as basis for implementing the incentives and support policy for investment and takes effect nationwide: i) Established and operated under the Law on Enterprises; ii) Being able to create or apply scientific and technological results which are evaluated, appraised and recognized by competent authorities; iii) Obtaining turnover form the production of, and dealing in, products and goods created from scientific and technological results for at least 30% of the total turnover. This condition shall apply in case the enterprises is established to or more 5 years.

Certificate of science and technology enterprise is issued by the Department of Science and Technology or National Agency for Technology Entrepreneurship and Commercialization Development (NATECH) belonging to the Ministry of Science and Technology depending on each specific case.

One of the important provisions related to the S&T Enterprises of Decision No. 844/QD-TTg of the Prime Minister dated on May 18^th, 2016 on approval for “Assistance policies on national innovative startup ecosystem to 2025” stipulates for continuing to implement the Project of Vietnamese Silicon Valley. This Project have been creating the most favourable conditions for development of the S&T Enterprises and encouraging S&T Enterprises to research, improve their goods or product to meet the demands of market.

 

With the application of scientific research results and technological development into production and business activities, S&T Enterprises not only bring new high quality products which are able to compete with imported goods, but also encourage science and technology research and application into production and business. S&T Enterprises are entitled to enjoy preferential on enterprise income tax exemption and reduction; exemption and reduction of land and water surface rent; credit incentives;… and especially supporting research activities and commercialization of new scientific and technological results supplemented by Decree No. 13/2019/ND-CP.

The promotion of commercialization of science and technology results contributes actively to the development of the science and technology market, facilitates the application of research results to real life. Every year, Vietnam has thousands of research results and inventions from universities, research institutes, research centers, domestic research groups and foreign organizations and individuals registered in Vietnam. But very few research results are applied to production or commercial products on the market. In order to resolve this situation, the Vietnamese Government supports the S&T Enterprises through policies on enjoying import and export tax; use of research equipment in national key laboratories, technology incubators,… of the State; investment preferences of the Scientific and Technological Development Fund and other funds; priority to participate in projects to support the commercialization of the results of science and technology, intellectual property of the State;… as stipulated in Decree No. 13/2019/ND-CP and relevant legal documents.

 

We are a law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

 

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Da Nang strengthens external relations, promotes investment attraction and international cooperation

On October 30th, 2020, representatives of Da Nang city received the delegation of the Ministry of Foreign Affairs to work, exchange and provide information on the coordination between the Ministry of Foreign Affairs and the city in the implementation of international cooperation program.

 

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Despite being affected by the COVID-19 epidemic, Da Nang still strives to implement important investment promotion activities such as: Economic promotion seminar, tourism, human resources within the framework of the visiting Vietnam and Danang of the Secretary General of the Liberal Democratic Party of Japan (January 11th to 14th, 2020), organized an online investment promotion conference “Danang – Silicon Valley of Southeast Asia”, contribute ideas and develop local implementation plans for free trade agreements that Vietnam has signed such as: Free Trade Agreement between Vietnam and the European Union, on the draft “White Book 2020” at the request of the European Business Association in Vietnam (EuroCham).

Up to now, Da Nang has established friendly and cooperative relations with 45 localities of 20 countries and territories, with 94 Cooperation Agreements were signed. Specific cooperation programs are effectively maintained and implemented, coupled with the promotion of new cooperation programs.

With its convenient location, abundant, high-quality human resources, and many development policies to attract the international investment, in the first 9 months of 2020, the city has attracted USD 140,88 million, of which, there are 66 newly licensed FDI projects with a total registered investment capital of USD 121.78 million, with 9 projects increasing capital with total additional capital is USD 15,038 million. Accumulated to date, Da Nang has 869 FDI projects with a total investment of USD 3.518 billion.

By creating opportunities for international investors in the fields of high technology, environmental protection, tourism services, etc. Danang has all the strengths from nature to people to be the first choice of international investors. Many large investors in the region and the world have chosen Danang as their investment development place when expanding their investment activities in Vietnam, especially when many investors have gradually moved their factory out of China. Danang promises to be a good destination for major investors in the world, to set up company and factory, and help them achieve the favourable benefits when investing in Vietnam.

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What Impact of Force Majeure and Basic Change of Circumstances for Contractual Relations During Covid 19 Pandemic?

Whether purpose contract has been achieved or not does not only depend on compliance with contract but also is controlled by conditions, objective circumstances. In the current pandemic situation, which regulations do participants in contract need to pay attention to?

 

According to Vietnam laws, event shall be regarded as force majeure if it meets three conditions: (i) objective factors; (ii) not able to be foreseen; (iii) not able to be remedied by all possible necessary and admissible measures being taken. It should be noted that epidemic is regarded as event of force majeure if there is factor of “not able to be remedied”. Covid-19 pandemic, in legal aspect, initially was not a force majeure event. Only when it broke out and the Government issued Directive on nationwide social distancing, it appears that this pandemic become force majeure event. Specifically, according to request of Directive, all operation must stop, and this request seems to make Covid 19 epidemic meeting enough three mentioned conditions. Legal consequences of force majeure event is that if there is loss, and the obliger shall not take responsibility.

However, in the current pandemic situation, not all contractual relations will apply above principle. When force majeure event occurs, factor in performance of contract must be considered. This is fundamental difference between definition of “force majeure event” and “basic change of circumstances”. Specifically, the contract will not be performed in force majeure event and will be performed with many considerable changes compared to initial estimate in basic change of circumstances. According to the laws, the change of circumstances shall be deemed basic when it meets all following conditions: (i) The circumstances change due to objective reasons occurred after the conclusion of the contract; (ii) At the time of concluding the contract, the parties could not foresee a change in circumstances; (iii) The circumstances change such greatly that if the parties know in advance, the contract has not been concluded or are concluded, but with completely different content; (iv) The continuation of the contract without the change in the contract would cause serious damage to one party; (v) The party having interests adversely affected has adopted all the necessary measures in its ability, in accordance with the nature of the contract, cannot prevent or minimize the extent of effect.

In the case of basic circumstances change, the affected party may request the other party to the re-negotiate the contract in a reasonable period of time. If the parties can not reach an agreement on amending the contract within a reasonable period of time, any of the parties may request a court or arbitration to terminate the contract at a specific time or amend the contract to balance the lawful rights and interests of the parties due to basic change of circumstances. The court may only decide to amend the contract in the event that the termination of the contract would cause greater damage than the cost to perform the contract if it is modified. In the process of negotiating on amendments and termination of the contract and the court or arbitration handling the case, the parties must continue to perform its obligations under the contract, unless otherwise agreed.

In the current pandemic situation, many places are still allowed to operate normally but there must be careful prevention measures. But these prevention measures are the cost that enterprise has to cover which is not small. Therefore, the contract can still be performed but one party has to suffer huge losses compared to initial estimate. In this case, the law allows parties to re-negotiate. If parties cannot reach any agreement, such case shall be brought to the court or arbitration to be solved. There are two possibilities: firstly amending the contract to balance the parties’ rights, secondly terminating the contract at a specific time if the contract cannot be amended.  And it is important to consult with dispute lawyers for possible options before taking the matters further to protect best interests in the transaction.

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What is the advantages and the disadvantages of licensing contract?

Licensing of industrial property rights (Licensing) is one of the legal measures to transfer technology. In accordance with Law on Intellectual property in 2005 (amended, supplemented in 2009), licensing of an industrial property rights means permission by the owner of such industrial property object for another organization or individual to use the industrial property object within the scope of the owner's right. Licensing of industrial property rights must be established in the form of a written contract. There are three types of industrial property object licence contracts: Exclusive contract; Non-exclusive contract; Industrial property object sub-licence contract, detailing:

 

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-Exclusive contract means a contract under which, within the licensing scope and term, the licensee shall have the exclusive right to use the licensed industrial property object while the licensor may not enter into any industrial property object licence contract with any third party and may use such industrial property object only with permission from the licensee.

-Non-exclusive contract means a contract under which, within the licensing scope and term, the licensor shall still have the right to use the industrial property object and to enter into a non-exclusive industrial property object licence contract with others.

-Industrial property object sub-licence contract means a contract under which the licensor is a licensee of the right to use such industrial property object pursuant to another contract.

What is the advantages and the disadvantages of licensing contract?

-Firstly, for licensor, licensing can be used to access new markets that are not easily accessible. By allowing the licensee the right to market and distribute the products, the licensor can more easily enter the market; Licensing contract may stipulate measures for the licensor has the right of improvements, technical know-how and related products that will be developed by the licensee during the valid term of the contract. However, the licensor may not always claim these rights, and some countries have strict restrictions on including these types of terms in the licensing contract; Licensing is necessary if the product only sells best when combined or sold for use with another product; Last but not least, the licensing contract allows the licensor to hold ownership of the intellectual property and at the same time receive licensing fees, in addition to the profits gained from self-exploitation of such assets from products or services sold or provided by that party. 

Besides the advantages, the licensing contract also has some disadvantages for the licensor. The licensee may become a competitor of the licensor. The licensee may make the licensor make less remuneration than the business losses resulting from the competition of the new competitor; The licensee may unexpectedly request contributions, for example, for technical assistance, human resource training, additional technical data, etc. It is important that the licensing contract must clearly stipulate the rights and obligations of the parties, whereby any disagreements that occur in the future can be resolved quickly and effectively; The licensor's revenues depend on the skills, capabilities and resources of the licensee. This dependence is even greater in the case of exclusive licensing. The provisions of minimum wage and other provisions may be provided to avoid this, but this is still a concern.

-Secondly, for the licensee, the advantage of a licensing contract is allowing access to technology that has been developed or is available to apply for helping businesses access to the market more quicky; Small companies may not have the resources to do and carry out the research to supply new and higher quality products. The licensing contract allows enterprises access to technical advances that are difficult to achieve by other measures; Licensing may also be necessary to maintain and develop an established market position but be threatened by new designs or production methods. Access to new technology through a licensing contract is the best way to overcome this challenge; There may be many opportunities to get a license when combining with existing company technologies can create new products, services and opportunities in the new market.

-Regarding the disadvantage to the licensee, the licensee may have to make financial commitments to technology that is "not yet ready" for commercial exploitation, or need to modify the technology to meet its business needs; An intellectual property licensing contract may result in additional costs for the product. Many technologies integrated into products can create products with high technology content but are very expensive when publishing to market; Licensing may create technological dependence on suppliers, who may not extend the licensing contract and negotiate a licensing contract with other competitors to limit the market or to limit exploitation activities which was allowed in accordance with licensing contract.

We are a law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

 

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Da Nang cooperates with the Netherlands in the field of high-tech agriculture

On November 18, 2020, representatives of Da Nang city and experts, Dutch farming enterprises organize an online seminar “Promotion and cooperation of high-tech agriculture in Da Nang- Netherlands” to develop hi-tech agricultural cooperation relations between the two countries.

 

The Netherlands is a country with developed agriculture and high technology application in Europe and is also a country that is known to apply technologies to cope with the impacts of climate change on agriculture. Similarly, Vietnam is also an agricultural country affected by climate change, but Vietnam’s agriculture has not had the conditions to apply high technology to improve the quality of agriculture.

Currently, the high-tech agriculture is a priority for Da Nang to thrive in order to meet the needs of use and export to many countries around the world. The creation of quality and safety products is the city’s top goal. At present, Da Nang is concentrating on solutions, promulgating supportive and encouraging policies to attract investment to set up company in the field of hi-tech agriculture, completing the detailed planning of 3 agricultural regions which applying high technology. Although the land reserve for agricultural production is limited, the city always gives priority to the development of hi-tech agriculture.

Not only investing in production, planning and application of high-tech science, Da Nang hopes to receive Dutch help in choosing applied technology, export standards as well as how to use the agricultural land effectively, avoid wasting resources. In addition, attracting Dutch investors with financial ability and business experience in the field of high-tech agriculture will help Da Nang learn how to manage effectively and meet demand of the city and providing food for millions of visitors to Da Nang each year. Besides, in the future, Da Nang hopes to combine high-tech agriculture and tourism to create the highest economic efficiency for the city.

With its efforts, Da Nang hopes that in the future there will be more Dutch investors investing in the city through setting up company in Da Nang, Vietnam or cooperate with local company in the field of high-tech agriculture, thereby bringing the highest economic efficiency to the investors and the city.

We are a law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

 

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How to Prepare Application for Anti-dumping Review

The review of anti-dumping measures on imported goods will be conducted by Vietnam Competition Authority (VCA) 12 month from the decision by Ministry of Trade and Commerce is issued.

 

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Application dossiers requesting for review of imposition of anti-dumping measures shall including (i) Application and (ii) Other documents and information deemed necessary by the requesting party, in Public and Limited version to be submitted to VCA.

The followings information must be provided by the requesting party at the submission of application for review of the anti-dumping duty imposition:

The status of dumping of imports

This section focuses on the change in the dumping status of imports into Vietnam during the period from the imposition of anti-dumping duty to the time the applicant submits the application.

The information to be provided includes, but is not limited to, expanding / narrowing the scope of the goods subject to the imposition of anti-dumping measures; Type / type of goods, producer / exporter selected to calculate the change in dumping margin, change in margin of dumping, normal price, export price for one or a group of foreign producers/ exporter (Note: The method of calculating the data must be consistent with the methodology which the VCA has guided in the dossier requesting the application of anti-dumping measures.)

Material damages or threaten to material damages

This section identifies evidence of substantial damages / threat of material damages to the domestic industry caused by imported goods dumped into Vietnam for investigation by the VCA, decide according to the actual situation.

Requesting party should provide the following information:

-The situation of importing goods

Information and data on the situation of import of goods subject to anti-dumping measures (amount and value) from the date of application of the anti-dumping measure before the submission of the dossier according to the set form and two (02) years earlier.

-Market share of similar goods domestically produced and imported goods

Comparative information on market share of domestically produced and imported goods shall be subject to dumping from the time of imposition of tax prior to the filing of the application in the form and the previous two (02) years.

-Impact of imports on domestic prices

Information on the impact of imported goods on the prices of domestically produced goods from the time of imposition of tax prior to the submission of dossiers according to the set form and two (02) years earlier.

-The situation of production and business activities of the domestic manufacturing industry

Information on production and business activities of the manufacturing industry from the date of application of the tax prior to the date of application and two (2) years before.

-Invest in upgrading machines and infrastructure to meet domestic demand

Information on fundamental changes in machinery and factory infrastructure is related to changes in capacity and capacity to meet the needs of the Vietnamese market from the time of application of the tax before submission and two (02) years earlier of the domestic industry. Data should be shown in the following table:

-Current situation of employers in the domestic industry

Number of employees (or estimated number) engaged in the production, management and distribution of domestically produced goods subject of the investigation.

-Inventory fluctuations

The amount and value of inventory requested for the application of the measure anti- dumping domestic production.

 Scope of goods subject to anti-dumping measures

Purpose, reason for requesting exclusion of products imported by the company from the scope of application of anti-dumping measures.

Information on products the company proposes to exclude from the scope of application of anti-dumping measures: HS code, technical specifications, technology, use purpose, production process, …

The list of domestic enterprises producing the same products as the imported products of the company.

List of other importing enterprises jointly importing the company’s proposed goods for exclusion.

Documents indicating the difference between the company’s products proposed exclusion and similar products domestically produced. If there are quality comparisons, please indicate the source of these quality criteria (e.g.Vietnamese standards sets, internationally recognized standards …).

Information on alternative sources of imports, the difference between those sources.

Other information, documents and evidence that the company deems appropriate to explain the exclusion of the product is appropriate.

We are a law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or services request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

 

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Apply the Safeguard Measures on DAP and MAP fertilizer

DAP and MAP is complex inorganic fertilizers, with main component of nitrogen and phosphorus, whose function of lining, dressing crops and production of NPK fertilizer.

 

On March 31st, 2017, Ministry of Industry and Trade (MOIT) received Dossier requesting to apply the safeguard measures on DAP and MAP fertilizer. Requesting Party is DAP Vinachem Joint Stock Company and DAP No 2 -Vinachem Joint Stock Company. 

Anti-dumping-Lawyers-in-VietnamOn April 13th, 2017, Trade Remedies Authority of Vietnam (Investigating Body) received Dossier requesting to apply globally the safeguard measures on DAP and MAP fertilizer.

On May 12th, 2017, based on Dossier requesting to apply the safeguard measures of domestic industry, regulations of World Trade Organization (WTO) and Vietnamese Law, the Ministry of Industry and Trade (MOIT) promulgated Decision No. 1682A/QD-BCT on initiation of investigation to apply globally the safeguard measures on DAP and MAP fertilizer imported into Vietnam.

Based on conclusion from preliminary investigation showing that imported goods caused significant damage to domestic industry, MOIT promulgated Decision No. issued Decision No. 3044/QD-BCT on August 04th, 2017 on applying temporary safeguard measures on goods with HS codes as follows: 3105.10.20; 3105.10.90; 3105.20.00; 3105.30.00; 3105.40.00; 3105.51.00; 3105.59.00; 3105.90.00 with temporary tax of VNĐ1,855,790 per/ton. Temporary safeguard measures shall from August 19, 2017 to March 6, 2018.

In the final investigation phase, Investigating Body held consultations with the relevant parties, assessed socio-economic impacts of temporary safeguard measures, updated data and consulted Ministries, agencies.

The final investigation conclusion showed that the amount of imported DAP and MAP fertilizers had increased both absolutely and relatively during the investigation phase. The conclusion also showed that the imported DAP and MAP fertilizers caused price pressures and price hikes on domestic goods during 2013-16 period. Phenomenon of price pressures, price hikes continues to take place in 2017 so the selling price of domestically produced fertilizer is still lower than the production cost. Domestic fertilizer production industry suffer on all aspects such as significant reduction of quantity and sales.

Accordingly, there was increase of imported goods having impact on prices. One of the three conditions is met to apply the safeguard measures according to regulations of WTO and Vietnammese law (Three conditions are: having impact on quantity and prices of imported goods; domestic industry was significantly damaged; There is causality between the increase of imported goods and the damage of domestic industry).

On November 10th, 2017, Minister of Industry and Trade promulgated Decision No. 4236/QD-BCT on extending the deadline for investigating cases of applying safeguard measures on DAP and MAP fertilizers imported into Vietnam fertilizers for more two months before issuing the final Report. This extension is necessary to gather more information relating to the case, to consider thoroughly relevant parties’ opinion, to assess comprehensively socio-economic impact

On March 02nd, 2018, Minister of Industry and Trade promulgated Decision No. 686/QD-BCT on applying official safeguard measures on DAP and MAP fertilizer imported into Vietnam (case number SG06).

On March 21st, 2018, Investigating Body posted a notice of Implementation Guide of exemption from applying the safeguard measure.

On October 12th, 2018, Investigating Body posted a notice to receive the dossier requesting for exemption from application safeguard measure.

On May 31st, 2019, Investigating Body posted a public notice to receive the dossier requesting for final review.

On July 02nd, 2019, Investigating Body received Dossier requesting for final review from DAP Vinachem Company and DAP No 2 -Vinachem Company.

On July 10th, 2019, Investigating Body issued official dispatch on requiring the Requesting Party to supplement some relevant information.

On August 02nd, 2019, Investigating Body received dossier of supplementation information at request.

On August 13th, 2019, Investigating Body confirmed that the dossier is complete, valid in accordance with regulations of requirement of final review of safeguard measure on imported DAP and MAP fertilizer.

On September 03rd, 2019, MOIT promulgated Decision No. 2700/QD-BCT on final review of the safeguard measures on imported DAP and MAP fertilizer.

On September 18th, 2019, Investigating Body issued official dispatch no. 817/PVTM-P2 on sending final-review questionnaire of the safeguard measures on imported DAP and MAP fertilizer (ER01.SG06) to domestic production company, company importing DAP and MAP fertilizer. 

On January 13th, 2020, Investigating Body held consultations with the relevant parties to present opinion relating to the case.

On February 24th, 2020, Investigating Body completed the Conclusion of final review of safeguard measure on imported DAP and MAP fertilizer.

On March 03rd, 2020, MOIT promulgated Decision No. 715/QĐ-BCT on extending the application the safeguard measures on imported DAP and MAP fertilizers. Specifically, the applicable tax rates are as follows: from 7/3/2020-6/3/2021 safeguard rates is 1.050.662 dong/ton; from 7/3/2021-6/3/2022 is 1.029.219 dong/ton; from 7/3/2022-6/9/2022 is 1.007.778 dong/ton; from 7/9/2022 onwards is 0 dong/ton.

Based on results of review, MOIT determines the extension of applying the safeguard measures on imported DAP and MAP fertilizers is necessary to continue to prevent damage of domestic industry and to ensure the efficiency of measures, helping domestic industry to have more time to justify.

On March 13th, 2020, Investigating Body posted a notice to receive the Dossier requesting for exemption from application safeguard measure on DAP/MAP fertilizers in 2020. Enterprise shall submit the Dossier requesting for exemption at public service Portal by website  https://dichvucong.moit.gov.vn or send directly to Trade Remedies Authority of Vietnam before 5pm on April 13th, 2020.

ANT Lawyers – A Law firm in Vietnam has law offices in Hanoi, Ho Chi Minh City and Da Nang.  The lawyers at each law offices in Vietnam have consistently made valuable and important contributions to our profession through the cases we handled on daily basis to facilitate business transaction or represented our clients to access justice.

 

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