Viet Nam - A Guide for Business and Investment - asean-korea centre

Vietnam is a long time signatory to the Paris Convention,the Madrid Agreement on International TrademarkRegistration, and the Patent Cooperation Treaty (“PCT”)and became a member of the World Intellectual PropertyOrganisation in 1976. On 27 June 1997, Vietnamentered into an Agreement on Copy Rights with the US.According to the Vietnam - US Bilateral Trade Agreement,Vietnam is further under the obligation to adhereto the Berne Convention.The National Office of Industrial Property (“NOIP”) is theauthority responsible for the registration of industrialproperty and the resolution of disputes with regard toindustrial property in the first instance. Foreign organisationsand individuals who seek to register their industrialownership should file their applications through anauthorised agent, who will transfer their application tothe NOIP. Also, trademark licence agreements must beregistered with NOIP. The Office of Copyright Protectionunder the Ministry of Culture and Information has alsobeen established and is responsible for the protectionof copyright. Works may be registered with the Ministryof Culture and Information; registration is, however, nota prerequisite for copyright protection.Currently, patents are protected for a period of 20years. A certificate of utility solutions may be grantedfor 10 years. A certificate of industrial design is grantedfor 5 years and may be renewed every 5 years howeverthe total effective period of a certificate cannotexceed 15 years. Certificates of trademarks are grantedfor 10 years with no restrictions of the number ofrenewals. Some moral rights of copyrighted works areprotected indefinitely and other rights up to 50 yearspost mortem auctoris.17. Technology TransferVietnam encourages the transfer of advanced technologyinto the country. Foreign investors contributingcapital in the form of technology transfer are exemptfrom all Vietnamese taxes relating to the transfer oftechnology. For projects using private capital, there isno cap on the royalty.Contracts for the transfer of technology from foreigncountry to Vietnam and vice versa, and technologytransfer contracts with value of at least 500 millionVND (approximately US$31,250) must be registeredwith the Ministry of Science and Technology or its authorisedbody. Franchise contracts must be registeredwith the Ministry of Trade or its authorised body.18. Dispute SettlementIn Vietnam, legal disputes may be settled by negotiation,in court or by domestic or foreign arbitration.The judiciaryThe hierarchy of Vietnamese courts include: (i) SupremePeople’s Court; (ii) Provincial People’s Courts;and (iii) District People’s Courts. The courts operate infive divisions such as: (i) Criminal division; (ii) Civil division;(iii) Administrative division; (iv) Economic division;and (v) Labour division.Unlike common law countries, Vietnam does not followthe doctrine of precedent under which cases decidedby judges in the past are used as authority for latercases. Judgements are based only on legislation, andprinciples of interpretation of the law.Running parallel to the court systems is the People’sProcuracy which is responsible for supervising theoperation of judicial authorities and exercising thepower of public prosecution. The People’s Procuracycan lodge protest against a judgement and asked forits review.Arbitration and Dispute ResolutionTo supplement the court system, Vietnam has a systemof independent arbitration centres, established underthe new Commercial Arbitration Ordinance (2003). Anarbitral award given by an arbitration centre or an arbitrationpanel established by the parties in accordancewith the provisions of the Ordinance will be enforceablein Vietnam without prior needing to be recognized.Disputes with the involvement of foreign investors maybe also settled by a foreign arbitration. In 1995, Vietnambecame a member of the 1958 New York Conventionon the Recognition and Enforcement of ForeignArbitral Awards. An arbitral award given by a foreignarbitration will be enforceable in Vietnam after it isrecognised by a Vietnamese court.Viet Nam - A Guide for Business and Investment 45PART III. BUSINESS AND FOREIGN INVESTMENT ENVIRONMENT