TABLE OF CONTENT

No Content Page No

1 ENTERPRISE LAW 1
What is law? 1
Law Application order 2
Sources of Law 3
4 Types enterprises 4
Procedure of biz registration 5
Division of Enterprise and Seperation of enterprise 5
Consolidation of enterprise and Merge of enterprise 5
2 CONTRACT 6
What is a contract? 6
Essential elements of a valid contract 6
Making contract 6
Offer 6
The fate of the offer 6

Postal rule 7
Contract of international sale of goods: Special provisions and contract Performance 7
3 CONTRACT OF CARRIAGE – INCOTERMS 2000 9+10
4 DISPUTE RESOLUTION 11
5 INTELLECTUAL PROPERTY 13
Copyright 13
Neighboring right 14
Inventions 15
Patents 15
Designs 15
Geographical Indication 16
6 Answers to the cases in the end of Chapter 10 and 11. 17

David/PQDat Page 17 5/28/2009 17

1. ENTERPRISE LAW
Lecture 1
- What is Law?: Laws are legally enforceable rules made by authorities within a society.
(Là những điều luật có tính cưỡng chế được lập ra bởi các cơ quan nhà nước có thẩm quyền trong một lãnh thổ)
Vietnam: National Assembly Australia: Parliament & the court
US: Congress & the court Singapore: Parliament & the court
- What is international law?: is the body of rules and norms that regulates activities carried on outside the legal boundaries of states. In
particular, it regulates three international relationships: 1/Those between states and state, 2/those between states and persons, 3/ those between
persons and persons
- Seperation/concentration of powers:

In Vietnam: it’s the concentration of powers

during capital countries: it’s the separation of powers
- Vietnamese state:

- Note in US: no prime minister; it’s the president who functions the head of state (nguyên thủ QG) and the prime minister. Secretaries of states
are used in stead of Ministers

- Sources of law in Vietnam:

* Legislation (văn bản luật):

David/PQDat Page 1 5/28/2009 1

 + Constitution (Hiến pháp) => cao nhất Constitution
+ Statutes (văn bản luật)
+ Ordinances (pháp lệnh)
+ Codes (bộ luật)
Constitution is the highest; Statutes and codes are same but Codes are applied after specific laws
Eg: - Motorbike register in Hanoi in 2005
- Law of contract between A & B for stocks/shares
1st applied: Law of securities 2006
2nd applied: Commercial laws 2005
3nd Civil law

* Delegated legislation (Văn bản dưới luật): made by other authorities

+ Decrees by Government (nghị định)
+ Decisions by Prime Minister
+ Circulars by Ministry (thông tư)
+ Guidances (chỉ thị/hướng dẫn)
+ Resolutions by BOD (nghị quyết)
- Law application order
Article 4.- Application of the Commercial Law and relevant laws
1. Commercial activities must comply with the Commercial Law and relevant laws.
2. Particular commercial activities provided for in other laws shall comply with the provisions of such laws.
3. Commercial activities which are not provided for in the Commercial Law and other laws shall comply with the provisions of the Civil Code.

- Types of Law:
Criminal Law (Luật hình sự) Civil law (Luật dân sự)
- Criminal Law is an offence against the society even - Civil Law controls the actions between individuals and
though only one person may suffer. or business organizations.
- Criminal Law aims to punish the criminal and money is - Civil law aims to compensate a person who has suffered
paid to the state, not the victim a loss by receiving money. This is known as damages
(các khoản bồi thường thiệt hại)

- Legal names of disputing parties: hear: xét xử

CRIMINAL LAW CIVIL LAW

z Prosecution(R): bên khởi tố z Plaintiff: nguyên đơn

z Accused: bị cáo z Defendant: bị đơn

z Appellant (appeal): bên kháng án

z Respondent: bên bị kháng án
- Proof
Criminal Law Civil law
Burden of Proof
(nghĩa vụ chứng minh)
* Falls on Prosecution * Falls on plaintiff
Standard
* Beyond Reasonable doubt => 90% is correct. The * Balance of Probabilities (đối trọng chứng cứ)
purpose is to specify what punishment will be
applied

- Verdict (các phán quyết của tòa): khái niệm tội phạm chỉ tồn tại trong Criminal law
CRIMINAL LAW CIVIL LAW
z Guilty or Not Guilty Compensation - known as a remedy (các biện pháp khắc phục tội
z Punishments are known as Penalties and can include fines or phạm). The most common is damages, but can also be injunctions
imprisonment (lệnh cấm của tòa-court orders to stop doing smth), & specific
performance (buộc thực hiện đúng hợp đồng)

- Law interpretation:
z Literal rule: ordinary meaning of the words
Eg: Law says “children are legal heir upon their parents’ death” => A dies, his/her children are the heirs
z Golden rule: Based on the purpose of the law if the literal meaning lead to ridiculous result.
Eg A’s child kills his/her father, he can NOT be the legal heir.
David/PQDat Page 2 5/28/2009 2
 z Dominant rule: purpose approach
z Class rule (quy tắc nhóm): if a general word follows specific words, its meaning shall be limited to the group of such specific words
Eg: knife, club, firearm and whatsoever
Ö knife, club, firearm are understood as weapons to kills
Ö Whatsoever is understood any things that can kill
- International law
Private International Law (Tư pháp) Public International Law (Công pháp)
Deals primarily with the rights and the duties Between two firms or Deals primarily with the rights and the duties Between two states;
two individuals between governmental organisations

- Sources of international law: Nations seat together to negotiate and discuss, then agree & sign => International treaty (điều ước)
International treaty includes: *convention (công ước)
*Agreement (hiệp ước)
*Protocal (nghị định thư)
=> CUSTOMARY LAW (tập quán quốc tế)
- Major legal systems in the world
Roman-German law Common law Socialist law Others
Hệ thống Luật Châu Âu lục địa Hệ thống luật Anh Mỹ
Eg: Petro Vietnam and BP: Singapore Laws means Common law is used
For Vietnamese: 192 countries in UN
For US: 198 countries in UN

- Comparision
CRIMINAL LAW CIVIL LAW
Sources of law
Legislations, delegated legislations Legislations and cases law (án lệ)
System of trial
(hệ thống xét xử)
Inquisitorial system of trial Adversary system of trial
Barrister: luật sư tranh tụng (in court room)
Soliciter: luật sư tư vấn (office lawyer)
- Sources of law in Vietnam:
z Regulated by Law on Enterprises 1999 & Law on State-owned Enterprises 2003 & Law on Foreign Investment 2000
z From 1st July, 2006, all are under Law on Enterprises 2005

- Types of enterprises: *Limited Liability company (LTD): 1 member LTD and more than 1 member LTD
*Joint-stock company (JSC)
*Sole proprietorship/private enterprise (doanh nghiệp tư nhân)
*Partnership (hợp danh)

- Characteristics of the types:

• Capital:
*Contribution
*Assignment Consensus: đồng thuận => noone protests
*Profit division Unanimous: nhất trí => all express their
• Memberships agreement
• Organization
• Legal representative

TYPES OF ENTERPRISES
JSC LTD (more than 1 1 member LTD Sole Properietorship Partnership
member)
*Member: min 3; no limit *Member: 2=< No =<50 *Member: only one, can *Member: the *Member: @ least 2
*Liability: Limited with 01 representative be an individual or a enterprise owned by general partners who
*Share: ordinary & preference - can be an organization group AN individual who is are stipulated and
- Preference shares can be and/or individual *Liability: limited liable for all debts of certificated
converted to Ordinary shares; but *Limited liability. - This is convenient to the enterprise with his *Two types of
David/PQDat Page 3 5/28/2009 3
ordinary share can NOT be - Members are responsible practise doing biz entire property partners: General
converted into Preference shares to pay for debts and other - No delay in capital *Liability: unlimited partner (thành viên
* Preference shares responsibilities within the distribution, submit when *The owner can hire a hợp danh) và limited
*1.Voting p. Share: 01 share = $ of capital that they comp is set up. director, but he/she partner (thành viên
how many votes; Gov, founding committed to contribute - Limitation: impossible still be the góp vốn)
shareholders; not negotiable; after -Contributor certificate can to reduce capital. If representative 1/G Partner: @ least
3 years must be sold or transferred be transferred to the 3rd needed, he/she can move * Sole Properietorship 2; unlimited and joint
to ord share party; but can’t be one part of the capital to is not permitted to liability; must be
*2. Dividend: performance negotiable 2nd party => changed into issue securities stipulated and
D.Preference= fixed rate+bunus *Increase capital: 1/Call LTD with more than one One individual is certificated. =>will
(that is decided in shareholder for new member; 2/issue member only permited to set be G.Director
meetings securities but can not issue *Organization: upon up ONE - decision making:
D. P > DO share (issuing share is ok Gov’s requirement proprietorship equal
=> D.P holder: easier to decide bcz: in Vietnam) 1/Choice 1: *Organisation: Don’t 2/Limited partner:
1/No voting right=>no right to *About Heir: one member care No >=0; limited
attend shareholder meetings; no dies without heir=> his/her *Hiring a director: Liability
right to norminate delegates capital share belongs to -It is a Labour contract
*3. Redeemable (ưu đãi hoàn lãi): State=> Capital of Comp -Objective of the hired *Different capital
-Who redeems: Shareholders decreases dir is Salary distribution=>
-Redeems to whom:company *Organization -Liability: No different
-When redeem: whenever u want *Lease comp: profit/income
@ negotiable rate; market price - it’s property contract *If partnership
- No right to vote, attend -Buy it => contribute to LTD or
shareholder meeting+norminate 2/Choice 2: performance JSC, when
*4. Others: stipulate in comp -Liable as an owner partnership goes
charter -Able to sell it off bankrupt, all
Company can issue any kind of contribution is taken
share if stipulated in the charter -Member Council runs the back to pay for the
*Organization comp by Voting meeting loss
& resolution which is *G. Partner of this
approved by >=75%capital firm is able to be
contributor of partner of another
members’agreement firm if he/she gets
-Case: If A owns 3/Choice 3: the allowance from
75%capital while B is a other partner
small member, how to
refuse A’s decision? =>
Increase capital
contribution => look into
Comp charter.
- Dir ector of this type can
- Members of BOM is not always
be as many directors of
shareholders, but can be outsider
other comp as he/she
- Shareholder owns >=10% capital
wants
can be director (if stipulated in
-Case: if A is Dir of a JSC
charter, the amount can be more =>
while A is also the Dir of
a way to reduce his/her power)
LTd=> it’s too risky for
LTD bcz all contracts of
- Can the director also be the LTD is invalid and be
director of another comp? NO, only
fired.
one (Article 116, P.83)
Note: - Chỉ được chuyển đổi các công ty cùng loại => S. Proprietorship is not a Comp => be liquidated => Set up new comp
- Charter Capital (vốn điều lệ) > legal capital
- Ý kiến cho rằng: legal capital exists in all areas of biz. This is false
- A person who works for Government & has a position, is not allowed to set up his/her own comp (his/her
income come from state budget)=> he/shecan invest the money into a LTD in the same are.
- Nếu góp vốn bằng tài sản, việc đóng góp được hoàn thành khi giấy tờ sở hữu t/sản đó đuợc chuyển sang tên công ty.

David/PQDat Page 4 5/28/2009 4

Lecture 2
1. Procedure of biz registration: Article No 15

Founder
Written notice (when files are not yet proper)
+State the reason
Completed File +other requirements

Biz Registrar -10 W.days

+10 W.days

Certificate of Biz Registration

2. Documents needed in the file

*JSC/LTD: - List of founding members
- Comp charter
- Application Form
* Parternership:
- List of General partners + his certificate
- Comp charter
- Application form
* Sole proprietorship:
- Application Form
=> After successfully getting Certificate of Biz registration, Public announcement is a MUST
- Written Newspaper
- E-newspaper
- Website of Biz registrar
3. Division of Enterprise and Seperation of enter prise
SEPARATION (TÁCH DN) DIVISION (CHIA DN)

A A

A B B C
- A -the existing Comp still exists after separation + New one(s) - A-the existing Comp does not exist => disappear after division
=> New Comps are born: B + C

4. Consolidation of enterprise and Merge of enterprise

MERGE (sát nhập DN) CONSOLIDATION (Hợp nhất DN)

A A

A B B C
David/PQDat Page 5 5/28/2009 5
- At least 1 Comp still exists after merging - A New comp is born (while all the others disappear)

2. CONTRACT
a. What is a contract?
- Contract is a legally binding agreement between two or more parties.
z Form:
− Writing
− Oral
− Partly oral and partly written
− Conduct (hành vi)
z Content: total articles regulating parties’ rights and obligations
b. Essential elements of a valid contract (các điều khoản hiệu lực của HĐ)
Agreement Consideration (sự trao đổi) Capacity (năng lực Legality
chủ thể)
- Thỏa thuận - Smt of Value passed from one party to other party in - In case of authorizing to - Offer is binding on Offeror
giữa các bên return from promise sign a contract, there - If offeree agrees, no way for
- It must be sufficient (có giá trị), but needn’t be adequate must be a PROXY (thư offeror to refuse
(ngang giá thị trường) uỷ quyền).
Eg: **A gives B a h.phone, and get it back the next day => - Impossible for 2nd Self Quiz: A company in
OK authorization (uỷ quyền HaiPhong sent a P/O to a
**A sells B a Car valued $10,000, but gets $1 only. tiếp cho người nữa) company in Hanoi for 1000 file
The next day, A asks B to get the car back from B => NOT unless it is stipulated in cabinets. The company in Hanoi
OK bcz B has paid => there is a Valid contract btwn A&B the contract => very immediately transport the ordered
- If contract may NOT need consideration, it must be in RISKY file cabinets to HaiPhong with an
“DEED” (chứng thư hợp đồng)=>needs to be Signed, - Need to add Proxy invoice attached.
sealed, witnessed (đây là loại HĐ 1 bên chỉ có cho,1 bên Number in the contract. *Is there a contract btn A and B?
chỉ có nhận=> cần witness để chứng minh ĐÂY LÀ HĐ Otherwise, the contract is => Yes, the contract is made by
TẶNG CHO trên cơ sở tự nguyện) void. CONDUCT (chấp nhận bằng
- Consideration must NOT be past (ko đc ở trong quá khứ) hành vi)

c. Making contract an offeror makes/sends an offer/PO to an offeree, the offeree accepts the offer => Contract is made
d. Offer: An offer is a legally binding promise made by one party to another party.
* Need to distinguish an OFFFER and an INVITATION TO TREAT (lời mời chào hàng)
Eg:
INVITATION TO TREAT (lời mời chào hàng) OFFFER
- In the supermarket: Displaying goods for sale with the Buyer offers
price attached
- Advertising goods for sale through catalogue/ media Buyers offer
- Tenders/Aution => many buyers make offer

In supermarket, when buyers put goods into the basket, the cashiers scan the barcode for payment => supermarket
accepts the offer => contract is made => you can not change or return the goods
e. The fate of the offer:
* Offeror may withdraw the offer: Prior to their reaching to offeree
+ Withdraw is used in cases: it’s an irrevocable Offer
* Revoke the offer: anytime before acceptance
Withdrawal and revocation must be communicated (phải đến tay/phải được truyền đạt đến) to the
offeree in some reasonably reliable manner
* Reject the offer: từ chối
* Implication: ngầm định
Eg 1: A: I like this H.P. How much?
B: 5Mil
David/PQDat Page 6 5/28/2009 6
 A: 4 Mil? => Counter offer
B: No
A: 5 mil is ok => new offer
Explain: There is no contract vì counter offer đưa ra bị rejected => no binding; Chào lại 5mil is a new offer, Accept
or not is upto the H/P owner
Eg 2: A Æ offer B (not like)Æ forward to C acceptÆ A
A does not offer C, but offers B
* Acceptance of the offer: + Only the offeree may accept the offer;
+ acceptance must be final and unconditional
+ Acceptance must be communicated to the offeror.
+ Silence does not amount to acceptance
+ Offeror can not force acceptance upon the offeree
==> Contract is made when there is final and unconditional
* Offer may lapse (hết hiệu lực) due to passing of time: can be stated clearly in the offer or not but after resonable
time
F. Postal rule (thuyết tống phát):
z Acceptance occurs when the letter is posted
z Same to public telegraph and public telex
z Evidence for the postal rule is in need
z NOT apply to instantaneous mode of communication

NOTE: - If offer = fax Æ no contract

- If offer = fax and stated in the offer “Pls accept by Post only” Æ Postal rule Æ Contract
- Để tránh hiểu nhầm, ta nên ghi rõ thời điểm “when the acceptance occurs”
- IN Vietnam: acceptance occurs when offers reach receiver => ko dùng postal rule
If acceptance = email: it occurs when it’s in the inbox of offeror
Revocation in any cases, it must be received
Lecture 3: Contract of international sale of goods
a. Choice of law clauses (điều khoản chọn luật)
z “Applicable law: The validity and performance of this purchase shall be governed by the laws of the state shown on
Buyer’s address on this order”
z “The contract between the parties is made, governed by, and shall be construed in accordance with the laws of a country
applicable therein, which shall be deemed to be the proper law hereof…”
b. Vienna Convention 1980:
z Came into force in 1988
z Is the work of more than 62 states and 8 international organizations
z Incorporate rules from all the major legal systems
z Includes 4 parts:
− Part I: General provisions
− Part II: Formation of contracts
− Part III: Rights & obligations of buyers and sellers
Part IV: Ratification & the entry into force
c. CISG: introduction on 1980 United Nations Convention Contract for International Sales of Goods
- Transactions covered in CISG: sale involving a buyer and seller with places of business in different states
David/PQDat Page 7 5/28/2009 7
d. Terms of the contract:
z Upon parties' agreements
z Rules: clear and sound terms can avoid dispute later
* Kind of terms
- Condition is the most important of the
contract. No condition => no contract
- If the condition is breached, the contract is
terminated.
- Fundamental condition can be: del time…

- Warranty is is less important. If it is

breached, a party can claim for damages, but
can not terminate the contract

- Implied terms:
1/ Correspodance w/description (hàng fải fù
hợp với mô tả
2/ Sale by sample (hàng phải đúng theo mẫu)
3/ Merchantable quality (chất lượng fù hợp với
chức năng sử dụng)
4/ Fitness for purpose
5/ Title (quyền sở hữu), quiet possession (hàng
không tranh chấp)

e. Quality Clauses (điều khoản chất lượng): should be clearly stated

- Quality can be checked at leaving port or at the destination port
- Check @ leaving port => issuing Certificate of quality (COQ)
- Check @ destination port => issuing Survey Report (SR)
***How are quality clauses binding?

f. Remedies for breach of contract:

z Damages: if you want to claim for damages, You need to prove
1/ the breach; 2/ the direct loss; 3/ causation (quan hệ nhân quả); 4/fault

David/PQDat Page 8 5/28/2009 8

 z Penalty (Nominal damages): Norminal damages: used for commercial contracts: one party breaches the contract,
the other party cam claim for a small part of the contract. In Vietnam, maximum is 8% of contract amount; In
US/US law countries => reasonable norminal damages
z Termination (chấm dứt phần còn lại của hđ)
z Rescission/avoidance- most serious remedy (huỷ toàn bộ hđ)
z Others: Specific performance(buộc thực hiện đúng hđ), reduce the price, etc.
- Rescision takes place if the event stipulated in the contract is stated clearly or one party breaches fundamentally-
fundamental breach => the innocent has to inform the other party about the rescission
g. Damages:
- Must be material loss
- Mitigation (làm nhẹ đi) obligation of innocent party: perform all necessaries to reduce the loss. Otherwise, impossible
to claim for damages.
- Loss should be reasonably foreseeable
h. Excuses for nonperformance (các trường hợp miễn trách):
** Dirty hands (lỗi trái chủ): a party whose actions cause the other to breach may not complain; A party may not rely on
a failure of the other party to perform, to the extent that such failure was caused by the first party’s act or omission
** Force Majeure: A party is not liable for any damages resulting from his failure to perform if he can show the failure
due to an event which is:
z beyond his control
z unreasonably foreseeable
z unable to overcome
Lecture 4: Contract of carriage
EXW FCA FAS FOB CFR CIF CPT CIP DAF DES DEQ DDU DDP

Free Delivered Deli

Free Cost Carriage Delivered Del
Ex Free Along Cost & Carriage Delivered Ex Quay Duty
SERVICES Onboard Insurance Insurance At Duty
Works Carrier side Freight Paid To Ex Ship Duty
Vessel & Freight Paid To Frontier Paid
Ship Unpaid Unpaid

Warehouse
Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller
Storage

Warehouse
Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller
Labor

Export
Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller
Packing

Loading
Buyer Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller
Charges

Inland Buyer/
Buyer Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller
Freight Seller*

Terminal Buyer
Buyer Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller Seller
Charges

Forwarder's Buyer Buyer Buyer Buyer

Seller Seller Seller Seller Seller Seller Seller Seller Seller
Fees

Loading On Buyer Buyer Buyer Buyer

Seller Seller Seller Seller Seller Seller Seller Seller Seller
Vessel

Ocean/Air Buyer Buyer Buyer Buyer

Seller Seller Seller Seller Seller Seller Seller Seller Seller
Freight

Charges Buyer Buyer Buyer Buyer Buyer Buyer Buyer Buyer

On Arrival
Seller Seller Seller Seller Seller
At
Destination

Duty, Taxes Buyer Buyer Buyer Buyer Buyer Buyer Buyer Buyer Buyer Buyer Buyer Buyer
& Customs Seller
Clearance

Delivery To Buyer Buyer Buyer Buyer Buyer Buyer Buyer Buyer Buyer Buyer Buyer Buyer
Seller
Destination

David/PQDat Page 9 5/28/2009 9

 The 13 INCOTERMS
Origin Terms
EXW - Ex-Works, named place where shipment is available to the buyer, not loaded.
The seller will not contract for any transportation.

International Carriage NOT Paid by Seller

FCA - Free Carrier, unloaded at the seller's dock OR a named place where shipment is available to the international
carrier or agent, not loaded.
This term can be used for any mode of transport.

FAS - Free Alongside Ship, named ocean port of shipment.

Ocean shipments that are NOT containerized.

FOB - Free On Board vessel, named ocean port of shipment.

This term is used for ocean shipments only where it is important that the goods pass the ship's rail.

International Carriage Paid by the Seller

CFR - Cost and Freight, Named ocean port of destination.

This term is used for ocean shipments that are not containerized.

CIF - Cost, Insurance and Freight, named ocean port of destination.

This term is used for ocean shipments that are not containerized.

CPT - Carriage Paid To, named place or port of destination.

This term is used for air or ocean containerized and roll-on roll-off shipments.

CIP - Carriage and Insurance Paid To, named place or port of destination.
This term is used for air or ocean containerized and roll-on roll-off shipments.
1. Nhóm E (nơi đi)
1. EXW (nơi đi) - Giao tại xưởng
Arrival At Stated Destination 2. Nhóm F (Phí vận chuyển chưa trả)
1. FCA (cảng đi) - Giao cho người
DAF - Delivered At Frontier, named place of destination, by land, not chuyên chở
unloaded. 2. FAS (cảng đi) - Giao dọc mạn tàu
This term is used for any mode of transportation but must be 3. FOB (cảng đi) - Giao lên tàu
delivered by land. 3. Nhóm C (Phí vận chuyển đã trả)
1. CFR (cảng đến) - Tiền hàng và cước
DES - Delivered Ex-Ship, named port of destination, not unloaded. phí
2. CIF (cảng đến) - Tiền hàng, bảo
This term is used for ocean shipments only.
hiểm và cước phí
3. CPT (cảng đến) - Cước phí trả tới
DEQ - Delivered Ex-Quay, named port of destination, unloaded, not 4. CIP (cảng đến) - Cước phí và phí
cleared. bảo hiểm trả tới
This term is used for ocean shipments only. 4. Nhóm D (nơi đến)
1. DAF (biên giới) - Giao tại biên giới
DDU - Delivered Duty Unpaid, named place of destination, not 2. DES (cảng đến) - Giao tại tàu
unloaded, not cleared. 3. DEQ (cảng đến) - Giao tại cầu cảng
This term is used for any mode of transportation. 4. DDU (điểm đến) - Giao hàng chưa
nộp thuế
DDP - Delivered Duty Paid, named place of destination, not 5. DDP (điểm đến) - Giao hàng đã nộp
unloaded, cleared. thuế
This term is used for any mode of transportation.

David/PQDat Page 10 5/28/2009 10

Lecture 5: Dispute resolution
1. Dispute resolution method:
Through diplomacy Through Arbitration Through Courts
(parties settle by themselves) (VIAC-Vietnam Int’l Arbitration Centre)
- Negotiation (thương lượng): - ICJ has the jurisdiction to hear
Negotiation is the process of two kinds of cases: those between
reaching an agreement by states and those requested by
discussion organs or specialized agencies of
- Mediation (hòa giải): Mediation the UN
involves the use of a third parties - Arbitration agreement: the one in writing to refer => ÚN set up ICJ to settle
who transmits and interprets the present or future disputes to arbitration => clause in mostly criminals, but do not
proposals of the principal parties contract & collateral contract. settle díputes of enterprises
and sometimes advances - If party prefer arbitration to court, it must be stipulated - Municipal (national) courts use
independence proposals in the contract the choice of law rules to
- Inquiry (điều tra): Inquiry is a - If economic contract states cleary ARBITRATION, determine what law to apply
process used to determine a Court can not involve
disputed fact or facts. - If domestic contract does not state clearly who, it’s
automaticly the COURT
- If int’l contract does not state who, there’s no way to go
***Only with commercial contracts, parties can
choose either the court or arbitration
- Arbitration law in Vietnam: Vietnamese Ordinance on
Commercial Arbitration 2003 & VIAC’s Arbitration
Rules
- Parties can choose arbitrators, normally 3 arbitrators - Parties can not choose judges
(each party selects 1 + 1 chairman)
2. Court system in Vietnam

***People’s district court has no tribunal. Judge hears all cases.

***If a plaintiff & a defendant are if different places, should sue to the Court of defendant’s place.
***if a case involves in property, the court in the place where the property is located hears the case

David/PQDat Page 11 5/28/2009 11

3. Court Procedure- Original hearing
- Defendant gets a notice from
the court, if he stays silent, that
means he aggrees
- If losing smth, winning smth,
court’s fee is devided
proportionally
- If Defendant does not show
up, => xử bình thường
- If plaintiff does not show up,
=> ko xử

4. Arbitration Proceedings:

- Arbitration award is FINAL (no appeal). Parties can only ask for Supereme People’s court to cancel the award, that
means no more arbitration.
5. Arbitration process:

David/PQDat Page 12 5/28/2009 12

6. Enforcement of arbitral awards

7. Statutory limitation: thời hiệu khởi kiện

Original trial (sơ thẩm) =>Decision (not yet enforceable) Appeal (kháng án) Appeal (toà xét xử phúc thẩm) Æissue
enforceable decision Æif disagree Ask for Supereme court (xin) review the decision
=> Giám đốc thẩm: nếu phát hiện có tình tiết trái pháp luật trong quá trình xét xử
=> Tái thẩm: nếu có tình tiết mới làm thay đổi bản chất sự việc => trả về tòa cấp
thấp để xử lại

Lecture 6: Intellectual property

the monopoly rights that a person acquires over a “product” generated by intellectual activity
1. Principle branches:

- Industrial property: must related to manufacturing

- All rights includes two rights: Pecuniary right & Moral right
- Pecuniary right: is the right to allow one(s) to gain material benefit as being owner
2. Copy right:
z Gives the author of an artistic work, for a limited period (in VN: life of author + 50 years; In Australia: life of author + 70
years ), the exclusive privilege of making copies of the work and publishing and selling the copies
z Protects the way original ideas are expressed in a work, but it does NOT protect the ideas inspiring the work
z Applies only within the territory of the state granting it.
z Single word and titles are not qualified
**In 2004, VN became the member of Berne Convention, which govern ONLY pecuniary right (loyalty-tiền bản quyền),
NOT moral right

David/PQDat Page 13 5/28/2009 13

a/ Content of copyright
Pecuniary Right Moral right
z Reproduction: làm tác phẩm phái sinh (translated…) z Name the work
z Public Performance: công diễn, công chiếu z Have author’s name on work ;
z Copying z Public or allow others to public ;
z Distribution, import; z Protect the work from distortion
z Broadcasting
z Leasing
Limit= author life+50 years (in Vietnam); author life+70 years Limit: no limit => last forever
b/ Protection for copyright:
z Duration: author's life plus 50 years (in VN)
z 50 years from the year it was published for photographs
z Assignment of copyright (chuyển nhượng quyền tác giả): must be in writing
z Infringement of copyright:
z Commit any act that is exclusive right of the owner
z Import copies either for trade purpose => making profit
z Symbol: ©, name, year
z No need to register: Authors have the © right after the work is created.
2/ Neighbouring right (quyền kế cận, quyền lien quan):
z Literary work can not be transferred to public with out activities of actors, producers and broadcastings
z Rights of actors over their show, rights of producers over their recordings, rights of broadcastings over their show
Eg: a Song: to be able to approach the public, it needs: a singer, producer, broadcaster => those people have
neighbouring rights
***DISTINGUISH:
AUTHOR, CO-AUTHOR, GROUP OF AUTHORS; AUTHOR AND OWNER
z Author, co-author, group of authors => Impossible to distinguish, that’s co-author
z Author and owner => Possible to know who does which part, that’s group of
authors
* Co-authorship: copyright expires when last author dies +
50 years
* Group authorship: expires by part of each author

Eg 1: Translating a work requires permission of the author or not? => Yes, sure
Eg 2: Transform “Gone with the wind” into film requires permission of the author or not? => No, bcz the
author died to many years ago, but the work must not be distorted
Eg 3: A recipe written out by a chef who died in 1949 => No, copyright has expired
Eg 4: A written title BashGo, for a board game inspired by rally driving => No, a single word is not qualified for
Eg 5: A sound tape of an obscene joke => Yes, it’s an artistic WORK
Eg 6: A design of a koala on a towel; => No. It’s not artistic property but INDUSTRIAL PROPERTY
Eg 7: a list of people who have won prizes in a competition => VN: No; AUS: yes

*** EXCEPTION:
z For education purpose, for book, no more than 10% or one chapter which ever greater
Note: Vietnam
z Private or domestic copying
z Copying with sufficient acknowledegement => Referencing

David/PQDat Page 14 5/28/2009 14

CASE 1:
Theresa Delicioso, a famous TV star, returned to her old => Dominique has the copyright of her record
school and talked how she became famous. Dominique, a => If contract btwn D &K is in writing => VOID =it’s ok
student, used her own words to record a report on her => if contract is in writing => K has a copyright to public
speech. She sold the tape to Keyhole, a gossip magazine.
Theresa has claimed her copyright in the recording. She is Conclusion: - Theresa is not successful. She has defamation
seeking damages against Dominique and a injunction to right only. As long as the inf is correct, not distorted => it’s ok
stop Keyhole from further publication. Is she successful?

CASE 2:
Evan is a Quantas fight attendant. At a street stall in => Keeps for himself: OK, personal use
Bangkok he purchases 6 videos of a new movie. He keeps => Gives 2 to friends: OK, personal use
one for himself, gives 2 to friends and sells the other 3 for a => Sells: NO, he’s making profit
small profit. Has he breached copyright?

3/ Inventions
z Include both useful products and useful manufacturing processes
z Are protected mostly in the form of patents, petty patents and inventors’ certificates
z Requirements:
− New manner of manufacture;
− Novel: not yet published
− Useful
4/ Patents:
z A patent is “ a statutory privilege granted by the government to investors and to others deriving their rights from the
investor, for a fixed period of years, to exclude other persons from manufacturing, using or selling a patented product or
from utilizing a patented method or process”
z 3 basic kinds: Design patents, Plants patents, Utility patent
5/ Trademarks:
z Any distinctive mark or symbol used to identify the origin of goods or services and to distinguish them from competing
goods and services
z Symbol: TM, ®
z Distinguish with trade name (mark to identify a manufacturer or merchant)
***TM: Có người đã khẳng định nhãn hiệu này nhưng chưa đăng ký.
TM and ®: which comes 1st is prevail.
In Vietnam, ® is protected.
***Rejecting a trademark
z It is likely to cause confusion
z It contains scandalous or illegal material
z It contains prohibited signs. These includes national flag, coat of arm, etc.
z It contains geographical name
6/ Designs
z Shape:
− New
− Applied to an article of manufacture
Eg: A designed a love statue. This statue can be multiple-copied. This design can be protected? Would your answer be different if
this design is used for a clock? => NO,
− Judged by eyes during process of usage by everyone
Eg: A new design of pamper which is better and softer for babies. Is it protected?=> No, it is not judged by eyes, not everyone
can see it.

7. Geographical Indication
z Who is owner of geographical indication? => State
z How many companies can register for a single geographical indication? => as many as possible. What right do they have?
=>
z Certificate of geographical indication is valid for how long? When can it be terminated?
***Nhà nước có quyền cho phép các cty sử dụng chỉ nhẫn này, as long as they folllơ standard.
David/PQDat Page 15 5/28/2009 15
Các phần trả lời câu hỏi cuối chương 10 và 11:
Exercises on Chapter 10
1. Answer: Yes. Stipulated in the contract
2. Answer: No. Proposal offer to public (even if address your name) is invitation to treat.
Here, John Q just received an invitation to treat and John Q is the offeror. He’s making an offer to the Retailer and only after the Retailer accepts
the offer, can the contract be made.
3. Answer: No. Because the withdrawal has not yet happened. If withdraw and offer reach the offeree at the same time, withdraw prevails. This
is new offer from buyer to seller so no contract in here

4. Answer: No. Buyer reject the original offer by making counter offer. The acceptance is considered as a new offer.

5. Answer: No. Silence does not imply acceptance

6. Answer: The contract is partially amended so it does not replace the first contract. And the first contract is still effective. Buyer can terminate
contract only if all contract changes. So Buyer breaches the contract. In this case, the two sides should make the changes in writing

7. Answer: No. Normally late delivery means breach of contract. However, as both agreed, there is no fundamental breach so Buyer cannot
avoid the contract.

8. Answer: Buyer bear the risk as it is the in-transit sale. (In-transit contract implies perfect merchantable quality). Buyer can only passes the
risk if he can prove that dealer or seller knows about the damages.

9. Answer: Since this is fundamental breach, buyer can avoid the contract ‘cause the purpose of contract cannot be reached (merchantable
quality). Otherwise, Buyer could ask Seller to compensate for profit loss and reduce the software price.

10. Answer: Yes, there is a contract and Seller breach the warranty. Seller must pay Buyer the amount which Buyer may have gained if the oil
was not contaminated. That is 25*(18-14)=100

Exercises on Chapter 11
1. Answer: Yes, Seller is liable here. FOB means seller has the responsibility to upload the goods on board. Only when the goods are safe and
sound on board can the seller transfer the risk to the buyer.

2. Answer: No. Since the responsibility of the seller is to upload the goods along the ship side.

3. Answer: Seller is not liable here. DES means seller has the responsibility to deliver the goods to destination port, but before customs. Also,
seller inform buyer about the arrival of the goods (if not seller is liable). So Buyer bear the risk.

4. Answer: Seller bear the risk since they have to pass the goods through customs to buyer

5. Answer: Yes. There will be two B/L, one from Syd to Mel, one from Mel to Honolulu. The seller still commit to the contract but may have
problem with financing. If payment is made by L/C, then only when buyer accepts it.

6. Answer: Yes. CIF is as same as FOB. Buyer must pay when goods is on board. Later, if the goods was not delivered or not merchantable
quality, they can claim.

7. Answer: Yes. Once signed in B/L, carrier has the liability to all loss and damages.
If seller admit their error, the carrier is still liable. Then the carrier can claim the seller or they can negotiate internally for compensation

8. Answer: Yes. The accident is unforeseeable but under the control. So it is not force majeure

9. Answer: The bank cannot arrest the ship but can order the court to do so.
Khi ông Ess thế chấp con tàu để vay ngân hàng, ông Ess sẽ vẫn có quyền chiếm hữu và sử dụng con tàu nhưng lại không còn quyền định đoạt với
con tàu=> ông Ess sẽ không thể bán con tàu cho ông Tee hoặc là hợp đồng mua bán con tàu giữa hai người sẽ không có giá trị pháp lý
Mặt khác, ngân hàng cũng không có quyền thu hồi và bán con tàu mà phải nhờ đến toà án. Toà án đứng ra thu hồi và bán con tàu, trả số tiền ông
Ess đã vay cho ngân hàng. Ông Ess sẽ được hưởng số tiền thừa từ việc bán con tàu sau khi đã thanh toán khoản nợ cho ngân hàng (nếu có).

David/PQDat Page 16 5/28/2009 16