Author: TNTP LAW

Tet holiday announcement 2025

Written by TNTP LAW on 24 January, 2025. Posted in Hoạt động của TNTP.

Dear Clients and Partners,

TNTP International Law Firm LLC would like to extend our heartfelt gratitude to our esteemed Clients and Partners for your trust, collaboration, and support throughout the past year. Your invaluable partnership has been a driving force for our continuous efforts and development.
On the occasion of the Lunar New Year of 2025, we are pleased to announce our holiday schedule as follows:
• Holiday period: From Saturday, January 25, 2025, to the end of Sunday, February 2, 2025
• Work resumes: Monday, February 3, 2025
During the holiday, for urgent support, please feel free to contact us via:
• Email: ha.nguyen@tntplaw.com
• Hotline: +84 931 798 818
As we step into 2025, TNTP remains committed to standing alongside our Clients and Partners on your legal journey, providing effective, secure, and professional solutions.
On this occasion of the Lunar New Year, TNTP wishes our Clients and Partners:
✨ A New Year filled with Happiness, Peace, Success, and Prosperity! ✨
We hope that 2025 will mark significant progress in the partnership between TNTP and our valued Clients and Partners.
Sincerely,

Legal consequences of an invalid contract: The contract does not give rise to, change, or terminate any civil rights and obligations of the parties from the time the contract is entered into

Written by TNTP LAW on 24 January, 2025. Posted in Legal newsletter.

Within the legal framework, the invalidity of a contract is considered a significant issue in contract law. When a contract is declared invalid, it has no legal force from its execution, meaning it does not confer, alter, or extinguish any rights or obligations of the parties involved. This article will explore the legal facets of an invalid contract, including the determination of invalidity, the effects on the rights and obligations of the parties before and after the declaration of invalidity, and the legal validity of agreements when a contract is declared invalid.

1. Timing of determining a contract invalid

A contract is considered invalid from the moment it is executed if it fails to meet the requisite legal conditions, rendering it ineffective from the outset. The court’s declaration of a contract as invalid is a formal acknowledgement that it lacks legal validity from its execution.

2. Effectiveness of the rights and obligations of the parties

(i) Rights and Obligations of the Parties After Contract Execution and Before Its Declaration as Invalid

Any rights and obligations executed by the parties during this period are not legally effective. Accordingly, the parties are required to revert to the original state and reciprocate any benefits received as mandated by law.

(ii) Rights and Obligations of the Parties After the Declaration of the Contract as Invalid

Post-declaration, the rights and obligations stipulated by the contract do not take effect. Thus, the parties are not bound to fulfil any contractual duties, nor is the beneficiary party entitled to any contractual rights post-invalidity.

3. Legal validity of agreements when a contract is declared invalid

This issue arises when parties, in practice, may agree to continue some contractual rights and obligations despite the contract’s invalidity. The critical question is whether such agreements remain legally binding in the event of the contract’s invalidity.

Presently, the resolution of disputes concerning invalid contracts may not be comprehensive, as the parties may have executed the contract from its inception to its invalidation. In some cases, returning to the pre-contractual state may be impractical. Thus, disputes may arise regarding compensation for the inability to revert to the original state. Furthermore, a party may breach the contract, and only after the contract’s invalidation does the breach come to light, prompting requests for penalties or damages.

According to the 2015 Civil Code and the 2005 Commercial Law, there are no provisions addressing the legal validity of agreements concerning rights and obligations when a contract is declared invalid. Therefore, the legal status of agreements on penalties, damages, dispute resolution, and other clauses is indeterminate in cases of invalid contracts.

Regarding contracts with arbitration clauses, under arbitration law, an arbitration agreement within a contract is independent of the contract’s validity. Thus, the invalidity of the contract does not impact the effectiveness of the arbitration agreement. Unless the arbitration agreement itself is declared invalid, the contract’s invalidity does not invalidate the arbitration agreement. If the arbitration clause remains valid, arbitration should consider enforcing the terms that the parties have agreed to continue under the invalid contract to address breaches originating from the contract.

It is clear that in instances of contract invalidity, parties must thoroughly assess the execution or continuation of related agreements. Moreover, to safeguard legal rights and interests, parties may seek assistance from dispute resolution bodies to address emerging issues. This ensures fairness in law enforcement and reduces potential risks and disputes between parties. Additionally, legal regulations need to be refined to more clearly define the legal status of agreements between parties in cases of contract invalidity, thus protecting the legitimate interests of the involved parties more effectively and transparently.

This article, “Legal consequences of an invalid contract: The contract does not give rise to, change, or terminate any civil rights and obligations of the parties from the time the contract is entered into” is presented to our readers by TNTP. We hope it proves informative.

Sincerely,

TNTP Congratulates Lawyer Nguyen Thi Thu Hang and Lawyer Do Le Minh for becoming Lawyer

Written by TNTP LAW on 23 January, 2025. Posted in Our Activities.

Branch of TNTP & Associates International Law Company Limited (“TNTP“) would like to congratulate the new Lawyer Nguyen Thi Thu Hang and the new Lawyer Do Le Minh for successfully passing the examination at the end of the legal practice probationary process to officially become a Lawyer of the Hanoi Bar Association.

Lawyer Nguyen Thi Thu Hang and Lawyer Do Le Minh are employees of TNTP, who have been with the company for more than half a decade, becoming an indispensable part of the development of TNTP. Along with the dedicated and experienced guidance of Lawyer Nguyen Thanh Ha – Head of TNTP, both of them have constantly learned, improved their professional knowledge and honed their professional experience skills to achieve the results they have today.

Lawyer Do Le Minh and Lawyer Nguyen Thi Thu Hang are the generation of lawyers “made by TNTP” who affirm the prestige and capacity of TNTP in the process of training and improving the quality of the staff.

Once again, TNTP would like to congratulate the new Lawyer Nguyen Thi Thu Hang and the new Lawyer Do Le Minh in their new and responsible positions. We wish you two continued to achieve many successes and make positive contributions to the development of TNTP in particular and the legal field in general.

Best regards.

Learn more about Lawyer Nguyen Thi Thu Hang and Lawyer Do Le Minh

LAWYER NGUYEN THANH HA – BRANCH MANAGER OF TNTP INTERNATIONAL LAW FIRM & TNTP ASSOCIATES – WAS ELECTED TO THE EXECUTIVE COMMITTEE OF THE VIETNAM ASSOCIATION OF REAL ESTATE BROKERS (VARS)

Written by TNTP LAW on 22 January, 2025. Posted in Hoạt động của TNTP.

TNTP & Associates International Law Firm (“TNTP”) would like to congratulate Lawyer Nguyen Thanh Ha, Head of TNTP Branch, on his excellent election to the Executive Committee of the Vietnam Association of Real Estate Brokers (VARS) for the second term (2021-2026). This is an important milestone, not only recognizes the relentless dedication of Lawyer Thanh Ha but also affirms the prestige and outstanding capacity of Lawyer Nguyen Thanh Ha in the field of real estate law and consulting.
The Vietnam Association of Real Estate Brokers (VARS) is a leading professional organization, playing an important role in connecting experts, organizations, businesses and individuals in the real estate brokerage industry in Vietnam. The Vietnam Association of Real Estate Brokers is affiliated to the Vietnam Real Estate Association, is organized and operates on the principle of voluntariness, complying with the laws of the State, the Law on Associations, the Charter of the Vietnam Real Estate Association and the Association’s Operation Regulations.
With the mission of promoting professionalization and sustainable development, VARS has been building a strong community where members are not only protected but also accompanied on the journey to improve their professional capacity and actively contribute to transparency. of the real estate market.
Lawyer Thanh Ha’s election to the Executive Committee of VARS is not only a recognition of his capacity and prestige in the legal field but also opens a new chapter in the journey of accompanying and developing with the Vietnamese real estate community. With extensive experience in the legal field and a deep understanding of the real estate brokerage industry, Lawyer Thanh Ha is committed to bringing practical contributions to VARS, in building a transparent and effective legal framework, improving service quality and accompanying VARS in building a long-term development strategy.
Once again, TNTP would like to congratulate Lawyer Thanh Ha on this new position full of responsibility. I wish you success and continue to make outstanding marks in the journey of accompanying and developing with VARS.
Respect.

Legal regulations on occupational safety in the construction industry

Written by TNTP LAW on 22 January, 2025. Posted in Legal newsletter.

Occupational safety in the construction industry has always been a concern under Vietnamese law. Due to the inherent risks of accidents in this sector, legal regulations regarding occupational safety play a vital role in safeguarding workers’ health and lives, as well as ensuring the progress of construction projects meet the timeline. This article explores the key legal regulations on occupational safety for entities involved in the construction industry.

1. What is occupational safety in the construction industry?

According to Clause 2, Article 3 of the Occupational Safety and Hygiene Law 2015 and Clause 20, Article 2 of Decree 06/2021/ND-CP, occupational safety in the construction sector encompasses measures to prevent and control dangerous and harmful factors during the construction process. The aim is to protect the health and lives of workers and to prevent incidents that may compromise safety at construction sites.

2. Legal regulations on occupational safety in the construction industry

Current legal regulations have established specific responsibilities for each entity involved in construction activities, from contractors and investors to employees.

a. For construction contractors

Construction contractors are the entities directly responsible for organizing, managing, and carrying out tasks at the construction site. Therefore, based on the provisions of Article 13 of Decree 06/2021/ND-CP, the contractor’s responsibilities for ensuring occupational safety are as follows:

• Developing an occupational safety plan: The contractor must develop a detailed occupational safety plan that suits the specific characteristics of the project. This plan must include risk prevention measures, controls for hazardous factors, and the arrangement of necessary personal protective equipment.

• Training and monitoring occupational safety: The person in charge of occupational safety at the contractor must be professionally trained and guide employees in identifying potential incidents, supervise the compliance with safety protocols, and address violations promptly.

• Safety inspections and monitoring: During construction, the contractor is responsible for regularly inspecting and monitoring safety measures on the site, promptly detecting and handling dangerous situations.

• Providing protective equipment: The contractor must supply employees with the necessary personal protective equipment, such as helmets, safety harnesses, anti-slip shoes, and ensure that these items are always in good condition when working.

• Proper use of safety funds: The contractor must use safety funds for their intended purpose and ensure that measures to prevent accidents are carried out according to regulations.

• Reporting on occupational safety: The contractor is required to report safety-related issues as requested by the investor and maintain construction management records.

b. For Investors

Article 14 of Decree 06/2021/ND-CP outlines the responsibilities of investors, who play a comprehensive role in controlling and overseeing occupational safety at construction sites. Specifically:

• Managing occupational safety: The investor must establish a construction management system, notify the tasks and responsibilities of individuals within the system to the relevant contractors, and ensure adequate personnel are assigned to supervise construction and manage occupational safety during the construction process.

• Ensuring occupational safety in construction: The person in charge of managing occupational safety for the investor must be professionally trained in occupational safety or construction engineering and meet legal requirements for occupational safety.

• Monitoring occupational safety: The investor’s occupational safety manager is responsible for overseeing the implementation of occupational safety regulations by contractors during construction.

• Coordination between contractors: The investor must organize coordination between contractors to manage occupational safety and address any safety issues arising during the construction process.

• Suspending or halting construction: The investor has the right to suspend or halt construction if any violations of occupational safety regulations are found during the construction process.

The investor not only plays a supervisory role but also must proactively coordinate with contractors to create a safe working environment.

c. For Employees

In addition to contractors and investors, according to Article 15 of Decree 06/2021/ND-CP, employees, as those directly involved in construction, also have significant responsibilities in protecting themselves and their colleagues:

• Complying with Occupational Safety Regulations: Employees must fulfill their responsibilities in accordance with legal provisions on occupational safety and hygiene.

• Reporting Safety Hazards: Employees are responsible for reporting to the relevant authorities when they detect risks that may compromise occupational safety during the construction process.

• Refusing Unsafe Work: Employees have the right to refuse to perform tasks if they perceive that the work is unsafe or if they are not provided with the required personal protective equipment as specified.

• Performing Work After Training: Employees are only permitted to undertake tasks with strict occupational safety requirements after receiving proper training and being issued a safety card.

• Responding to and Addressing Accidents: Employees are responsible for participating in emergency response and addressing the consequences of workplace accidents and incidents that may compromise occupational safety.

3. Handling violations of occupational safety regulations in the construction industry

The law clearly stipulates the penalties for violations, including administrative fines and criminal prosecution in cases of severe consequences.

• According to Decree 12/2022/ND-CP, violations of occupational safety regulations may be subject to administrative fines ranging from 500,000 VND to 70,000,000 VND, depending on the severity and nature of the violation.

• In cases where the violation causes serious consequences, the act may be subject to criminal liability under Article 295 of the 2015 Penal Code (amended and supplemented in 2017). Specifically, violators may face:

– Monetary fine ranging from 20,000,000 VND to 100,000,000 VND.

– Non-custodial reform or imprisonment, with the term of imprisonment depending on the severity of the consequences caused.

Occupational safety in the construction industry is not only a legal responsibility but also a professional ethical duty of all parties involved. Strict adherence to legal regulations by the parties in construction not only protects the health and lives of workers but also contributes to improving the quality and efficiency of each project. It is hoped that with practical solutions and close cooperation among all parties, the working environment in the construction industry will become safer and more sustainable.

Above is the article “Legal regulations on occupational safety for entities in the construction industry” that TNTP has sent to our readers. TNTP hopes this article is helpful to you.

Best regards,

Jurisdiction to Resolve Sales Contract Disputes at Vietnamese Courts

Written by TNTP LAW on 20 January, 2025. Posted in Dispute Settlement, Legal newsletter.

The sale of goods is a common commercial activity aimed at transferring goods between two parties for profit. If disputes arise during the performance of the contract that the parties cannot negotiate themselves, they have the right to request the competent court to resolve the dispute. In such cases, the plaintiff needs to understand the regulations to initiate a lawsuit in the competent court. This article will provide readers with legal knowledge about the jurisdiction for resolving disputes in sales contracts between businesses in Vietnam’s People’s Courts.

1. What is a Sales Contract Dispute?

The sale of goods is a commercial activity involving the exchange of goods and money between the seller and the buyer. In this transaction, the seller delivers the goods, transfers ownership to the buyer and receives payment; the buyer pays the seller and receives the goods and ownership rights as agreed. When both the seller and purchaser wish to sell and purchase goods from each other, they will negotiate a contract that specifies each party’s rights and obligations.

A sales contract dispute refers to conflicts or disagreements between the parties during the performance of the sales contract, typically occurring when one party fails to fulfil their obligations, thereby affecting the legitimate rights and interests of the other party.

2. Jurisdiction for Resolving Sales Contract Disputes Between Businesses in the Court

When a dispute arises in a sales contract and the parties choose to resolve them in court, the competent court for resolving the dispute will be determined as follows:

2.1 Disputes Under the Jurisdiction of the Court

According to Article 30 of the Civil Procedure Code 2015, Vietnamese courts have jurisdiction to resolve disputes arising from business or commercial activities among organizations with business registration, which are all for profits. Therefore, when two businesses enter into a sales contract for profit, disputes arising from this relationship fall under the court’s jurisdiction.

2.2 First Instance Level People’s Court Jurisdiction

a. Disputes Under the Jurisdiction of District People’s Courts

At the first instance level, the district court will generally be the competent authority to resolve disputes over sales contracts between two businesses, except for disputes that fall under the jurisdiction of the People’s Courts of the province (explained below).

b. Disputes Under the Jurisdiction of Province People’s Courts

At the first instance stage, disputes typically fall under the jurisdiction of the provincial court in one of two scenarios: i) Disputes involving parties or assets located abroad or those requiring judicial assistance from Vietnam’s representative office abroad or a foreign court; ii) The provincial court may take up disputes to resolve on its initiative when deemed necessary or at the request of the district court.

2.3 Territorial jurisdiction of courts

According to Clause 1 of Article 39 and Clause 1 of Article 40 of the Civil Procedure Code 2015, the territorial jurisdiction for dispute resolution by the court is determined as follows:

● The court where the defendant’s headquarters is located;

● The parties have the right to agree in writing to petition the Courts where the plaintiff’s headquarters is located;

● The plaintiff has the right to choose the court to resolve sales contract disputes in the following cases:

– If the plaintiff does not know the location of the defendant’s headquarters, they may request the court where the head office of the defendant is last located or where the defendant’s properties are located to settle the dispute;

– If the dispute arises from the operation of a branch of an organization, the plaintiff may petition the Court where the organization’s head office is located or where its branch is located to settle it;

– If the defendant does not have a head office in Vietnam, the plaintiff may petition the Court where its office is located to settle the case;

– If the dispute arises from a contractual relation, the plaintiff may petition the Court where the contract is performed to settle the case;

– If the defendants are headquartered in different places, the plaintiff may petition the Court of the area where one of the defendants is headquartered to settle the case.

Thus, in most cases, the court where the defendant’s headquarters is located will have jurisdiction to settle the dispute. However, in general, civil law and commercial law always prioritize the agreement and wishes of the parties. Therefore, if the parties do not want the court where the defendant’s headquarters is located to resolve the dispute, they have the right to agree to choose the court where the plaintiff’s headquarters is located to resolve the dispute. Additionally, the plaintiff also has the right to choose the competent court to resolve the dispute in some of the aforementioned cases.

Above is the article “Jurisdiction to Resolve Sales Contract Disputes at Vietnamese Courts”. TNTP hopes that the article is helpful to readers.

Sincerely.

Dispute Settlement Methods in International Sales of Goods Contracts

Written by TNTP LAW on 17 January, 2025. Posted in Dispute Settlement, Legal newsletter.

International sales of goods contract disputes are inevitable due to differences in language, culture, or business practices, which may prevent the parties from understanding each other’s goals. Understanding and selecting the appropriate dispute settlement method can help parties settle the dispute promptly, cost-effectively, and efficiently. This article by TNTP introduces some mechanisms for resolving disputes related to international sales of goods contracts.

1. Negotiation

• Negotiation is a consensus-based dispute settlement method where the parties will discuss disagreements or disputes based on good faith to find solutions. The agreements reached through negotiation are not legally binding and rely on the goodwill of the parties for implementation.

• Negotiation is a simple dispute settlement method. It is often prioritized by the parties due to its flexibility as it can occur at any time or place without being constrained by time or space, especially in the day of technological advancements. Moreover, the parties can avoid the costs for any third party and directly communicate themselves to understand each other’s objectives and potentially achieve a win-win solution.

• However, the success of negotiation will largely depend on the good faith of the parties. Since the agreement through negotiation lacks binding value, their implementation will solely be based on the parties’ cooperation. If a party fails to adhere to the agreed-upon solution, the dispute may remain unsettled, and there are no specific sanctions for such non-compliance. Additionally, language, culture, and other differences can impact the results of negotiation, especially with the international nature of the contract.

2. Mediation

• Mediation is a dispute settlement method involving a third party – typically an individual or organization with expertise in the disputed field, known as the mediator. The mediator acts as a “connector” between the parties, listens to their viewpoints, even up the differences in the parties’ understanding, and proposes solutions that address the parties’ needs for their consideration and decision.

• While mediation shares similarities with negotiation, a notable distinction is that the parties seek the assistance of a mediator rather than negotiating directly.

3. Commercial Arbitration

• Commercial arbitration is a dispute settlement method where the parties agree to resolve their disputes by an arbitral tribunal. The tribunal reviews the documents, evidence submitted, and the case’s facts to issue a final and binding Award.

• In international sales of goods contract disputes, arbitration has unique features due to the international nature of the disputes, such as:

– The language used during the settlement process can be mutually agreed upon by the parties, which may be the language of one of the disputing parties or a third language agreed upon. If there is no agreement, the arbitral tribunal has the authority to decide on the language to be used.

– Regarding the applicable law, the parties may choose the national law or international commercial practices.

– A distinctive feature of arbitration in international sales of goods contract disputes is that arbitral awards are not automatically recognized and enforced. Recognizing and enforcing the foreign Arbitral Award will depend on the international treaties to which the relevant country is a party or on the principle of reciprocity. In certain scenarios, the party seeking recognition and enforcement must undergo the procedures for recognition and enforcement in the country of the award debtor’s nationality or where the enforceable assets are located.

4. Litigation

• Litigation is a dispute settlement method based on state authority, wherein disputes are resolved by national courts, acting in the name of state power, to issue judgments and decisions to settle disputes. Litigation is often considered the “last resort” when disputes cannot be resolved through negotiation, mediation, and without an arbitration agreement.

• For international sale contract disputes, selecting the court for dispute settlement does not guarantee the case will be heard in the chosen court. Jurisdiction will be determined based on the conflict-of-law rules stipulated in the law of the selected court’s jurisdiction, international treaties to which the relevant country is a party and other criteria.

• Another issue is determining the applicable law for dispute settlement. While the parties may choose the governing law, in the absence of such an agreement, the court will apply conflict-of-law rules and private international principles as prescribed by the legal system of the country where the court is located.

• Similar to arbitration, recognizing and enforcing the effective judgment/decision need to be done in the country where the assets for enforcement are located or in the country of the judgment debtor’s nationality, subject to the international treaties, reciprocity principles, and the laws of the country where the recognition and enforcement takes place.

This article, “Dispute Settlement Methods in International Sales of Goods Contracts” is presented by TNTP with the hope of providing valuable knowledge to readers.

Sincerely,

Personal data privacy in the digital era

Written by TNTP LAW on 15 January, 2025. Posted in Legal newsletter.

In the era of technology, personal data privacy has become one of the most concerned legal problems. The rapid expansion of online services, social media platforms, and cutting-edge technologies like artificial intelligence has significantly heightened the risks of privacy breaches. Modern challenges demand serious consideration from lawmakers and businesses regarding the protection of personal data in the digital era. This article by TNTP will delve into the issues surrounding personal data privacy in the digital era.

1. Personal data privacy in the digital era

• According to Article 21 of the Constitution of the Socialist Republic of Vietnam, everyone has the inviolable right to privacy, personal secrets, and family secrets, along with the right to protect their honor and reputation. Information regarding private life, personal secrets, and family secrets is protected by law.

• Personal data is defined under Clause 1, Article 2 of Decree 13/2023/ND-CP as information in the form of symbols, letters, numbers, images, sounds, or other similar formats in an electronic environment that is associated with or can be used to identify a specific individual. As stipulated in Clauses 3 and 4, Article 2 of Decree 13/2023/ND-CP, personal data is categorized into basic personal data and sensitive personal data:

– Basic personal data: Includes identifying information such as full name, date of birth, gender, address, nationality, images, phone numbers, personal identification documents (ID cards, passports, driver’s licenses), marital status, family relationships, account numbers, and other details that help identify an individual.

– Sensitive personal data: Encompasses private information such as political opinions, religion, health status, racial or ethnic origin, genetic characteristics, criminal records maintained by competent authorities, credit customer information, personal location data obtained through tracking, and other data requiring special confidentiality as prescribed by law.

• To protect the rights of data subjects, the law explicitly stipulates the following fundamental rights:

– Right to be informed: Data subjects have the right to be informed about how their personal data is collected and processed.
– Right to give consent: Data subjects have the right to accept or decline the processing of their personal data.
– Right to access personal data: Data subjects have the right to access and request corrections to their personal information.
– Right to withdraw consent: Data subjects have the right to withdraw their consent for personal data processing.
– Right to delete personal data: Data subjects have the right to request the deletion of their personal data when it is no longer necessary.
– Right to obtain restriction on processing: Data subjects have the right to request restrictions on the processing of their data under specific circumstances.
– Right to obtain personal data: Data subjects have the right to request a copy of their personal data from the managing organization.
– Right to object to processing: Data subjects have the right to object to the use of their personal data for advertising, marketing, or undesired disclosure purposes.

Personal data privacy is a fundamental right of every individual, protected by law to ensure the safety and confidentiality of personal information. The collection, processing, and use of personal data must adhere to principles that protect the rights of data subjects. Furthermore, legal provisions ensure that data subjects have control over the use of their personal information, thereby ensure their legitimate rights and maintaining user trust in an increasingly digital environment.

2. Legal issues related to personal data privacy

The collection and use of personal data without the consent of data subjects is one of the most significant legal challenges today. Users who provide their information to technology platforms, social media, and online services face concerns that their data may be collected, stored, and used for various purposes without their consent.

a. Personal data of employees

Employers’ responsibilities to protect employees’ personal data under Decree 13/2023/ND-CP:

• Employers are responsible for complying with legal provisions on the protection of employees’ personal data. This requires them to implement organizational and technical security measures to safeguard personal data and demonstrate that the data processing is conducted in a valid manner.

• Additionally, employers must document and maintain logs of data processing activities and immediately notify authorities upon detecting any violations of personal data protection. This helps safeguard employees’ rights and ensures that all breaches are promptly addressed.

• Employers must also cooperate with state agencies in cases involving personal data incidents and are accountable for any damages caused by violating data processing practices.

b. Personal data of customers and consumers

• According to Point c, Clause 1, Article 41 of the Cybersecurity Law 2018, businesses providing services in cyberspace are responsible for implementing technical solutions and necessary measures to ensure security during data collection, preventing risks of data leakage, loss, or damage. In cases of data breaches or loss, businesses must promptly implement response measures and notify users in a timely manner.

• Additionally, under Article 69 of Decree 52/2013/ND-CP, when consumer information is collected through e-commerce websites, businesses must publicly display their personal information protection policy in a visible location on the website.

Traders and organizations that collect and use personal information from consumers via e-commerce websites must obtain explicit consent from the consumers (data subjects). Information collectors are required to establish mechanisms that allow data subjects to express their consent transparently, using methods such as online functionalities on websites, emails, messages, or other means as agreed upon by the parties.

3. Handling violations of personal data protection regulations

a. Common violations of personal data protection

• Unauthorized collection of personal data: Collecting data without the consent of the data subject or collecting data beyond the allowed scope.

• Misuse of personal data: Using data for purposes other than those disclosed or without the consent of the data subject.

• Data leaks and disclosure: Failing to implement necessary security measures, leading to data being leaked, stolen, or misused.

• Non-compliance with legal requirements: Failing to meet legal requirements for transparency, notification, or ensuring the rights of the data subject as required by law.

b. Legal provisions for handling violations of personal data protection regulations

According to Article 4 of Decree 13/2023/ND-CP, violations of personal data protection regulations will be handled in one of three ways:

• Disciplinary Action

• Administrative penalties

• Criminal Prosecution: Violations of personal data protection regulations will be criminally prosecuted when the elements constituting a criminal offense are present.

In the digital era, personal data privacy is an issue that cannot be overlooked. Individuals must be aware of their right to control their own data, while organizations and businesses have the responsibility to ensure data security and comply with related legal regulations. Protecting personal data privacy not only helps safeguard individual rights but also contributes to creating a safe, transparent, and trustworthy digital environment for everyone.

This article, “Personal data privacy in the digital era” is brought to you by TNTP. We hope this article proves helpful to our readers.

Best regards,

Voluntariness in Contracting and Grounds for Contract Invalidity

Written by TNTP LAW on 13 January, 2025. Posted in Legal newsletter, Pháp luật Hợp đồng.

In civil relationships, all transactions in general, and contracts in particular, must not violate the fundamental principles of civil law, one of which is the establishment, execution, and termination of rights and obligations of contract must be based on voluntariness. A contract contrary to the principle of voluntariness may be declared invalid. Through this article, TNTP provides readers with legal knowledge regarding invalid contracts.

1. Voluntariness in Contracting

Voluntariness is understood as the ability to do what one desires without being influenced or coerced by external factors. In other words, voluntariness exists only when there is a combination between the genuine internal will and its external expression through actions or non-actions. The internal will consists of the thoughts, desires, and true objectives that the parties wish to achieve when entering into a contract. The external expression of the will is when that desire is realized through specific actions.

Therefore, a contract is considered to achieve voluntariness when there is consistency between genuine intentions and actual actions. If the establishment of a contract between the parties does not ensure free will and expression of intention or disrupts the unity of these two elements, it cannot be considered voluntary. In such cases, one of the parties may request the court to declare a contract invalid.

2. Cases of Invalid Contract Due to Violations of Voluntariness

2.1 Invalid Contract Due to Deception

According to Article 127 of the Civil Code 2015, deception in entering into a contract occurs when:

– One party or a third party intentionally provides misleading information about the subject, nature of object or contents of a contract, and the other party is unaware of the discrepancy; and

– The receiving party relies on that information to decide to enter into a contract.

In this case, deception must be the decisive factor for one party’s participation in a contract. If there is no intentional misrepresentation by one party or a third party that leads to a misunderstanding, a contract may not be established in reality. Deceiving another party to achieve personal goals in entering into a contract violates the principle of voluntary contract participation.

When a party enters into a contract due to deception, the deceived party has the right to request the court to declare the civil transaction invalid within two years from the time the deceived party becomes aware, or should have been aware, that the contract was formed due to deception.

2.2 Invalid Contract Due to Misunderstanding

According to Article 126 of the Civil Code 2015, a contract is determined to have a misunderstanding when it has the following factors:

– At the time of contract formation, one or more parties have an incorrect or incomplete understanding of elements related to a contract; and

– The mistake results in one or more parties suffering damage and/or failing to achieve their objectives in entering into a contract.

While the deceived party’s misjudgment of a contract’s contents is due to influence from another party or a third party, the mistake in the misunderstanding case arises from the subjective perception of the mistaken party. Thus, a contract formed under misunderstanding does not accurately reflect the true desires and intentions of the mistaken party.

If entering into a contract due to a misunderstanding causes damage to one or more parties, the mistaken party has the right to request the court to declare a contract invalid within two years from the time the mistaken party becomes aware, or should have been aware, that a contract was established due to the mistake unless the parties have rectified the mistake and the objectives of a contract have been achieved.

2.3 Invalid Contract Due to Threat or Coercion

According to Article 127 of the Civil Code 2015, threats and coercion in contract formation are understood as follows:

– One party or a third party threatens or coerces by physically attacking or applying psychological pressure on the threatened or coerced party;

– The threat or coercion is the decisive factor forcing the threatened party to enter into the contract to avoid danger to their life, health, honour, reputation, dignity, or property, or that of their relatives or friends.

Thus, when one party threatens or coerces the other party to enter into a contract according to their objectives, the coerced party is forced to participate in a contract without the opportunity to act according to their true desires or will. Consequently, the Civil Code 2015 recognizes this as one of the cases leading to the invalidity of a contract. Specifically, the party that entered into a contract due to threats or coercion has the right to request the court to declare a contract invalid within two years from the time the threatening or coercive conduct ends.

2.4 Invalid Contract Due to Fictitious Contract

According to Article 124 of the Civil Code 2015, a fictitious contract occurs when both parties simultaneously establish two contracts as follows:

– One contract accurately reflects their true intentions and desires but is concealed and not made public for various reasons, such as affecting the rights and interests of a third party or violating the law;

– One contract is established and made public to conceal the other contract, referred to as a sham contract.

This is also a distinctive aspect of a fictitious contract, as there is an agreement on the intention of both parties; however, the intention recorded in this contract is not their genuine desire. In other words, this is a contract that both parties “voluntarily” participate in, but neither party intends to implement this contract in practice.

Therefore, the legal consequences of a fictitious contract are also unique, as this type of contract is always invalid in all cases, while the concealed contract remains effective unless the transaction is also invalid under the provisions of the Civil Code 2015 or other relevant laws.

The above is TNTP’s article on “Voluntariness in Contracting and Cases Leading to Invalid Contract”. TNTP hopes this article is helpful to readers.

Sincerely,

Procedures for considering applications for recognition and enforcement in Vietnam of civil judgments and decisions of foreign courts

Written by TNTP LAW on 10 January, 2025. Posted in Dispute Settlement, Legal newsletter.

The procedures for considering applications for recognition and enforcement in Vietnam of civil judgments and decisions of foreign courts play a significant role in both international legal frameworks and Vietnamese law specifically. These procedures not only demonstrate respect for foreign civil judgments and decisions but also ensure the legal rights of the individuals and organizations involved. Therefore, implementing these procedures requires agencies to have a deep understanding of Vietnamese laws and the international treaties to which Vietnam is a party. Vietnamese law outlines the procedural order from Articles 432 to 443 of the Civil Procedure Code 2015 (“CPC 2015”) as follows:

1. Submission of the Application to the Competent Authority

Unless prevented by force majeure or an objective impediment, within three years from the date the foreign civil judgment or decision becomes legally effective, the enforced party, or those with legitimate rights and interests, or their legal representative, may apply to either the Ministry of Justice of Vietnam as per the international treaty provisions to which Vietnam and the issuing foreign court’s country are signatories or to a competent Vietnamese court.

The application for recognition and enforcement includes the request form and accompanying documents. If Vietnam and the country of the foreign court issuing the judgment or decision are signatories to an international treaty concerning this matter, the accompanying documents must comply with the treaty provisions. If not signatories, the documents must adhere to the provisions of Article 434(1) of the CPC 2015. If the application documents are in a foreign language, the requester must provide a legally notarized Vietnamese translation.

2. Transfer of the Application to the Competent Court

If the Ministry of Justice is the receiving body, it must, within five working days from the receipt of the application documents, transfer them to the competent court for resolution.

3. Resolution Process by the Vietnamese Court

a) Step 1: Case Acceptance

Within five working days of receiving the application from the Ministry of Justice or directly from the requester, the court must review, admit, and notify the relevant Prosecutor’s Office, the Ministry of Justice, the requester, and the obligated party or their legal representative in Vietnam. Depending on the circumstances, the judge may either: i) Request the requester to amend or supplement the application; ii) Return the application to the requester; or iii) Proceed with the application upon fulfillment of the fee requirements.

b) Step 2: Preparation for Reviewing the Application

The maximum preparation period for reviewing the application is six months from the date of case acceptance. During this period, the court may request clarifications from the enforcing party about unclear aspects of the application and the foreign court’s judgment or decision. Depending on the situation, the court may issue one of the following decisions:

(i) Temporary suspension of the review of the application as per Article 437(4) of the CPC 2015.

(ii) Termination of the review of the application as per Article 437(5) of the CPC 2015.

(iii) Conducting the hearing to review the application as per Article 438 of the CPC 2015.

c) Step 3: Conducting the hearing

The court must hold a hearing within one month from the date of issuing the decision to conduct the hearing. The adjudicating panel includes three judges, with the presence of the prosecutor from the same-level Prosecutor’s Office, the enforcing party, the obligated party, or their legal representative. If the prosecutor is absent, the hearing still proceeds. In the event that the enforcing party, the obligated party, or their legal representative is absent for the first time, the hearing must be postponed; however, the hearing will still proceed if these individuals have submitted a request for the court to conduct the hearing in their absence, or if the obligated party or their legal representative has been legally summoned for a second time but remains absent. The panel issues a decision to terminate the review of the application if the enforced party or their legal representative has been duly summoned for a second time but remains absent, or if one of the grounds specified in Clause 5 of Article 437 of the Civil Procedure Code 2015 is met.

The panel does not retry the case but merely examines and compares the foreign court’s civil judgment or decision and the accompanying documents against the provisions of Vietnamese law and international treaties that Vietnam has joined, to base its decision on whether to recognize and enforce or not recognize the foreign judgment or decision.

After reviewing the application, hearing the opinions of those summoned, and deliberating, the panel decides by a majority. The panel has the authority to issue a decision to recognize and enforce in Vietnam or to decide against recognizing the foreign civil judgment or decision. Cases where foreign civil judgments or decisions are not recognized and enforced in Vietnam are regulated under Article 439 of the CPC 2015.

We hope this article, “Procedures for considering applications for recognition and enforcement in Vietnam of civil judgments and decisions of foreign courts”, will be useful to you.

Sincerely,

Author: TNTP LAW

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TNTP Congratulates Lawyer Nguyen Thi Thu Hang and Lawyer Do Le Minh for becoming Lawyer

LAWYER NGUYEN THANH HA – BRANCH MANAGER OF TNTP INTERNATIONAL LAW FIRM & TNTP ASSOCIATES – WAS ELECTED TO THE EXECUTIVE COMMITTEE OF THE VIETNAM ASSOCIATION OF REAL ESTATE BROKERS (VARS)

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