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Legal Bulletin September 2023

1. New Law on Electronic Transactions

On 22 June 2023, the National Assembly adopted the Law No. 20/2023/QH15 on Electronic Transactions (“ET Law 2023”). The ET Law 2023 takes effect from 01 July 2024 and replaces the Law on Electronic Transactions 2005.

The ET Law 2023 provides the legal framework for data messages, electronic certificates, electronic signatures, digital signatures, electronic contracts and trust services to further develop electronic transactions and to promote digital transformation. Some key provisions of the ET Law 2023 are highlighted below.

Data messages

Under the ET Law 2023, a data message is any information that is generated, sent, received or stored by electronic means. Data messages are expressed in the form of electronic documents, electronic certificates, electronic vouchers, electronic contracts, emails, telegrams, telegraphs, facsimiles and other forms of exchange of electronic data as stipulated by laws.

The legal validity of information contained in a data massage cannot be denied just because of its data message form. A data message shall be as valid as an original copy when certain conditions are met, and can be used as evidence in legal proceedings.

Electronic and digital signatures

An electronic signature is a signature created in electronic data form, logically affixed to or associated with a data message to identify the signatory and indicate the signatory’s approval of the data message. A digital signature is a type of an electronic signature which uses asymmetric cryptographic hash function, including the private key used to encrypt and the public key used to verify a digital signature.

Electronic signatures are classified according to the scope of use, including: specialised electronic signatures, public digital signatures and specialised digital signatures for official activities. The ET Law 2023 separates the requirements applicable to a specialised electronic signature and a digital signature.

The ET Law 2023 expressly recognises the legal validity of electronic signatures. Specialised electronic signatures which are issued with a specialised electronic signature safety certificate by the Ministry of Information and Communication (MIC) and digital signatures have the same legal validity as signatures on paper documents. Therefore, to confirm the legal validity of their specialised electronic signatures, organisations and agencies need to register with the MIC for obtaining such certificate.

The ET Law 2023 clears that the use of other confirmations through electronic means that are not qualified as electronic signatures shall comply with the provisions of other relevant laws.

Electronic contracts

Electronic contracts are contracts established in the form of data messages. The provisions of laws on contracts and other relevant laws are also applied to electronic contracts. An offer and acceptance of an electronic contract shall be made through data messages, unless otherwise agreed by the parties.

In principle, when entering into and performing an electronic contract, the parties may agree on (i) the partial or full use of data messages, electronic means, and (ii) technical requirements, conditions to ensure integrity and confidentiality related to such electronic contract.

Trust services

Trust services, referred to in the ET Law 2023, are timestamp services, data message certification services and public digital signature certification services. Only enterprises lawfully incorporated in Vietnam are permitted to provide trust services. However, they must obtain a licence to provide trust services granted by the MIC (except for electronic contract certification services in commerce) and satisfy the conditions for the licence set forth in the ET Law 2023. Enterprises have the right to apply one or more of the said services.

Enterprises that provide electronic contract certification services in commerce must also comply with the applicable conditions stipulated in laws on e-commerce.

The ET Law 2023 also lays down the obligations of trust service providers which include, among others, publicly announcing the process of registration for use of services and related costs, storing documents and providing information as required by laws, and suspending or terminating the provision of services at the request of competent agencies in accordance with laws.

2. New Bidding Law

On 23 June 2023, the National Assembly adopted the Law No. 22/2023/QH15 on Bidding (“Bidding Law 2023”). The Bidding Law 2023 takes effect from 01 January 2024 and replaces the Bidding Law 2013, as amended. The following are some key provisions of the Bidding Law 2023.The Bidding Law 2023 applies to, among others, (i) the selection of contractors for projects financed by State capital, and projects of State-owned enterprises and enterprises where State-owned enterprises hold 100% charter capital, and (ii) the selection of investors for projects using land for which bidding must be held under land laws, and projects for which bidding must be held under specialised laws.

The bidding procedures set out in the Bidding Law 2023 shall be followed for selection of contractors for provision of services, procurement of goods, construction and installation or selection of investors for performance of project contracts, with some exceptions for which separate procedures shall apply. For example, selection of contractors for signing petroleum contracts shall comply with petroleum laws or selection of investors for PPP projects shall comply with PPP laws. With the exception of the following five situations, the Bidding Law 2023 international bidding for investor selection in all circumstances that fall under its purview:

  • Projects in the sector for which foreign investors’ market access is restricted under the Vietnamese investment regulations;
  • Projects for which domestic bidding is compulsory due to national defense, national security, social order and safety requirements;
  • Projects that will be implemented on land or sea areas of which the use by foreign investors and foreign-invested enterprises is limited under land laws and relevant regulations;
  • Projects that have a total investment capital of less than VND 800 billion; and
  • Projects that do not fall into the four circumstances above and have invited expressions of interest for an international bidding, but no foreign investor has participated or expressed interest.

The Bidding Law 2023 generally retains the method and criteria for evaluation of bid dossiers (“hồ sơ dự thầu” in Vietnamese) and selection of successful contractors of the current Bidding Law, and amends criteria for evaluation of bid dossiers and selection of successful investors. In particular, bid dossiers submitted by investors shall be evaluated based on the following criteria: (i) criteria for evaluation on financial capability, ability to arrange finance and experience to implement similar projects of the investor, (ii) criteria for evaluation on business plan of the investor, including technical, social and environmental criteria, and (iii) criteria for evaluation of the efficiency of land use, the efficiency of development of sectors, fields and localities. In respect of investment projects that have special requirements on conditions under specialised regulations, the bidding invitation (“hồ sơ mời thầu” in Vietnamese) must clearly specify the fixed criteria which include one or some of these criteria.

A winning investor shall be the one who (i) has a valid bid, (ii) has satisfied the assessment criteria and (iii) has the highest combined score.After selection, the chosen investor is required to enter into a project contract with the competent state agencies, which should generally include the following:

  • Information about contracting parties, the effective date and the contract term
  • Information about the project, including objective; location; implementation schedule; scale and total investment capital; conditions for use of land and other resources (if any); plan and requirements with respect to compensation, support, resettlement and construction of auxiliary works (if any); safety and environmental protection; force majeure events and the plans to deal with force majeure events
  • Responsibilities to conduct procedures on compensation, support, resettlement and construction of auxiliary works (if any); land allocation or land lease (if any)
  • The winning investor’s responsibility to meet commitments proposed in the bid dossier; the establishment of a project company to manage the project (if any)
  • Contract performance security; principles and conditions for contract amendments and termination; the transfer of contracting parties’ rights and obligations
  • Governing law and dispute resolution forum.

Additionally, the chosen investor is obligated to provide contract performance security in one of the following forms before or on the project contract’s effective date:

  • A guarantee letter from a domestic credit institution or a foreign bank’s branch that is established pursuant to Vietnamese law.
  • A guarantee insurance certificate issued by a domestic non-life insurer or a foreign non-life insurer’s branch that is established pursuant to Vietnamese law.

The Bidding Law 2023 amends the provisions on procurement of medicines and medical devices. The Ministry of Health will issue the list of medicines subject to centralized procurement, and the list of medical devices subject to centralized procurement (if necessary). In principle, centralized procurement must be undertaken through an open bidding process, but contractor appointment or price negotiation may be available in certain circumstances. Besides, the Bidding Law 2023 allows healthcare establishments to make decisions on procurement of medicines not on the list of medicines paid by the health insurance fund. The Bidding Law 2023 introduces some changes to simplify bidding process. For example, it requires relevant State agencies to exchange information about contractors and investors among the National Bidding Network System, the National Enterprise Registration Network System and other systems to support efficient appraisals and approvals of bid dossiers.

3. Entry and residence of foreigners in Vietnam

The National Assembly adopted Law 23/2023/QH15 (“Law 23/2023”) dated 24 June 2023 to amend a number of articles of the Law on entry, exit, transit and residence of foreigners in Vietnam. The Law 23/2023 took effect on 15 August 2023.

The Law 23/2023 increases the duration of e-visas from 30 days to 90 days. E-visas are issued to citizens of all countries and territories pursuant to the Government’s Resolution 127/NQ-CP dated 14 August 2023.

A temporary residence permit may be issued to citizens of countries unilaterally exempted from visas by Vietnam and the period of temporary residence is 45 days.

The Law 23/2023 contains many responsibilities for accommodation establishments and other relevant organisations and individuals related to residence of foreigners. Specifically, accommodation establishments must require foreigners to present their passports or international travel documents, and documents related to residence in Vietnam to make temporary residence declarations before agreeing to allow foreigners to temporarily reside. Other organisations and individuals may only use employees being foreigners, organise tour programs for foreigners, or allow foreigners to temporarily reside when foreigners lawfully reside in Vietnam.

4. Guidelines on anti-money laundering

The State Bank of Vietnam (SBV) issued Circular 09/2023/TT-NHNN (“Circular 09”) dated 28 July 2023 guiding the Law on Anti-Money Laundering. Circular 09 takes effect from the date of signing, except certain provisions which will be effective on 01 December 2023. Circular 09 replaces Circular 35/2013/TT-NHNN dated 31 December 2013, as amended.

Circular 09 provides further guidelines on assessment of money laundering risks by reporting entities; process for money laundering risk management and classification of customers; internal rules on anti-money laundering, reports on high-value transactions and suspicious transactions, electronic transfers of money, and submission of electronic money transfer reports.

Under Circular 09, reporting entities are required to send their internal rules on anti-money laundering to the agency performing the prevention and combatting of money laundering tasks (AML Agency) under the SBV within 30 days from the date of issuance or revision. Reporting entities must provide annual anti-money laundering training for their managers and employees involved in anti-money laundering activities.

Except for financial intermediaries, financial institutions which conduct the domestic transfer of VND500 million or more (or the foreign currency equivalent) or the cross-border transfer of USD1,000 or more (or other foreign currency equivalent) must submit a transaction report to the AML Agency. Nonetheless, transactions using debit cards, credit cards or prepaid cards for payment, and inter-financial institution transactions are exempt from this reporting requirement.

Reporting entities are required to establish (i) an adequate IT system if allowed to implement electronic money transfer, and (ii) connection channels with the SBV to electronically submit their reports on anti-money laundering. Instructions on the data format and file structure for electronic reports will be provided by the AML Agency. They are still allowed to submit paper reports on high-value transactions and suspicious transactions (on standard forms attached to Circular 09) when the adequate IT system for submission of reports electronically is not available.

5. Licences for the use of frequency bands

The Government issued Decree 63/2023/ND-CP (“Decree 63”) dated 18 August 2023 to implement the Law on Radio Frequencies. Decree 63 takes effect from the date of signing and repeals Decree 88/2021/ND-CP dated 1 October 2021. Below are some key points related to frequency bands.

Decree 63 details the procedures and application files for granting licences for the use of frequency bands through auction, competitive selection or direct licensing process. The MIC will grant a licence for telecom business and a licence for the use of frequency bands to an winning organisation (in case of auction or competitive selection) or an applicant (in case of direct licensing) after the wining organisation/applicant has paid in full the amount of fees for granting rights to use radio frequencies, radio frequency using fees and charges, telecom licensing fees and charges, and fees for telecom operational rights.

The Law on Radio Frequencies stipulates that the licence for the use of frequency bands granted through auction process may be transferred to another organisation when certain conditions are met, and the transfer must obtain approval from the MIC. According to Decree 63, an organisation receiving transfer must submit a transfer dossier to the MIC for approval. The MIC shall, within 45 days from the receipt of a valid dossier, approve the transfer or reject and explain the reasons for its rejection of the transfer. If approved, the MIC will grant licences to the organisation receiving transfer after the transfer is completed. Decree 63 forbids the organisation receiving transfer from transferring the transferred right to use radio frequencies to another party.

Decree 63 also provides guidance on calculation of fees for granting rights to use radio frequencies applicable to frequency bands. Such fees shall be included in the business costs of the licensed organisation and included in corporate income tax deductible expenses.