Legal Newsletter in October 2023 (Intellectual Property, Insurance, and Power Purchase Agreements)

Our Newsletter #15 would lead you on the following:

LEGAL UPDATE

I. New Decree guiding Law on Intellectual Property

On 23 August 2023, the Government issued Decree No. 65/2023/ND-CP guiding the Intellectual Property Law on industrial property, protection of industrial property rights, rights to plant varieties, and State management of intellectual property, which takes effect from the date of promulgation, with the following notable content:

1. Detailed guidance on the process and necessary documents to register industrial property according to Vietnam’s commitments when joining the PCT Treaty, the Hague Agreement and the Madrid Agreement.

2. Splitting industrial property registration application

Before the competent state management agency in charge of industrial property rights issues a decision refusing to accept an application or deciding to grant or refuse to grant a protection certificate, the applicant has the right to request splitting of the application for industrial property registration. The applicant may split the application in cases such as the following:

• Splitting of one or several technical solutions in the patent application;
• Splitting one or several industrial designs in the industrial design registration application;
• Splitting part of the list of goods and services in the trademark application into one or more new applications.

3. Forms of issuance of protection diplomas on industrial property

Diplomas of protection shall be granted in electronic or paper copies (if the applicant applies for paper copies).

4. Documents and procedures for processing confidential patent applications, specifically

A. Confidential patent registration dossier includes the following documents:

1. Declaration for registration, made on the stipulated form;
2. Documents, samples and information identifying the industrial property object registered for protection as specified in Law on Intellectual Property;
3. Power of attorney, if the application is filed through a representative;
4. Documents evidencing the registration right, if such right is acquired by the applicant from another person;
5. Documents evidencing the priority right, if such right is claimed;
6. Receipt for payment of fees and charges;
7. Document certifying that the object registered in the application is a state secret according to the provisions of law on protection of State secrets.

B. Procedures for processing confidential patent applications and granting confidential patent protection certificates, maintaining, modifying, terminating, and invalidating confidential patent protection certificates are carried out in accordance with the law on Intellectual Property and implementation guidance documents for patent applications, except in the following cases:

1. A confidential patent application is subject to substantive examination within a period of no more than 18 months from the date the application is accepted as valid, if the request for substantive examination is submitted before the date the application is accepted as valid, or from the date of receipt of the request for substantive examination if the request is filed after the date the application is duly accepted;
2. The document stating the third person’s opinion or opposition is considered a source of information for the processing of a confidential patent application;
3. Complaint procedures under the Law on Intellectual Property do not apply to decisions and notices on confidential patent applications and other types of applications related to confidential patents;
4. Confidential patent applications and confidential patent protection certificates are not published in the Industrial Property Official Gazette.

II. New Decree on compulsory civil liability insurance by motor vehicle owners, compulsory fire and explosion insurance, compulsory insurance for construction investment activities

On 06 September 2023, the Government issued Decree 67/2023/ND-CP regulation on compulsory civil liability insurance for motor vehicle owners, compulsory fire and explosion insurance, compulsory insurance for construction investment activities, which takes effect on the date of promulgation with notable content on compulsory insurance in construction investment activities as follows:

1. Insured entities

Investors have the responsibility to purchase compulsory insurance for construction investment activities for the following construction projects:

1. Construction projects and construction items significantly affecting public safety and benefits prescribed in Annex X Decree No. 15/2021/ND-CP;
2. Construction projects facing high environmental risks or facing environmental risks prescribed in Annex III and Annex IV of Decree No. 08/2022/ND-CP;
3. Construction projects have special technical requirements and complicated construction requirements according to regulations of law on construction and relevant laws.

2. Minimum coverage

Minimum coverage for compulsory insurance for construction projects in progress refers to the full values of construction projects upon completion, including all building materials, workforce costs, equipment installed on construction projects, transport costs, taxes, other fees and other items provided by investors. Minimum coverage for construction projects in progress shall not be allowed to be lower than total construction policy value, including values subject to amendments and revisions (if any).

3. Insurance coverage

Insurers shall provide indemnities for damage to construction projects in progress arising from all risks, except for insurance exclusions according to laws.

4. Insurance period of compulsory insurance for construction projects in progress

1. For a construction project worth less than VND1,000 billion, not including installation work or including installation work, but the cost of performing the installation work is less than 50% of the total value of the insured construction project: The insurance period specified in the policy shall be from the commencement date to the completion date of construction on the basis of the decisions on investment issued by competent authorities, including amendments thereto (if any). The insurance period for components or items of a construction project which have been handed over or brought into use shall be terminated from the date when such components or items are handed over or brought into use.
2. For an insured construction project worth less than VND1,000 billion, including installation and the cost for installation accounts for at least 50% of its total value: The insurance period specified in the policy shall be from the commencement date of construction on the basis of the decisions on investment of competent authorities, including amendments thereto (if any), to the date on which the construction project is handed over or after the date on which the first load test is completed, depending on whichever comes first, but not more than 28 days from the beginning date of testing. The insurance period for used equipment installed in the construction project shall be terminated from the beginning date of testing of such equipment.

III. New Circular guiding power purchase agreement serving domestic purposes

On 31 August 2023, the Minister of Industry and Trade issued Circular 16/2023/TT-BCT guiding power purchase agreement serving domestic purposes (“Circular 16”), which takes effect on 16 October 2023, with the following notable content:

1. Regulated objects

Including:

1. Electricity retailers;
2. Customers using electricity for domestic purposes;
3. Other agencies, organizations and individuals.

2. Format of domestic power purchase agreement (“Domestic PPA”)

The form of a Domestic PPA must meet 02 following conditions:

1. Domestic PPA shall be in physical form (2 copies of the agreement are to be produced, one of which is held by each party) or electronic form (which the Buyer can look up and download from the website of the Seller). The agreement shall be written in Vietnamese.

However, the parties may negotiate about using other ethnic dialects of Vietnam or foreign languages. In case there are discrepancies between a version written in the Vietnamese language and a version written in an ethnic dialect of Vietnam or a foreign language, whichever version is more beneficial to the users shall prevail.

ii.  Domestic PPAs shall be compliant with form under Appendix attached Circular 16.

3. Signers of Domestic PPAs

Circular 16 specifies signers of PPAs for domestic purposes as follows:

1. The entity signing the contract of the Electricity Purchaser is the representative of the Electricity Purchaser who meets the conditions for civil act capacity according to the provisions of law, has an electricity purchase request and residence information of the household at the electricity purchase location or documents proving ownership, management and use of the electricity purchase location and a dossier requesting registration to purchase electricity for domestic purposes according to regulations sent to the electricity Seller;
2. If the Buyer consists of multiple households sharing electricity under 01 agreement, signers shall be representatives of these households who are authorized by the households in writing. Sharing households shall satisfy civil act capacity according to the provisions of law, have a request to buy electricity and information about the residence of the household at the place of purchase of electricity or documents proving ownership, management and use electricity purchasing locations. The contract must clearly state the number of households sharing (with attached list) and the electricity price applied according to regulations on implementation of electricity prices issued by the Ministry of Industry and Trade;
3. The Buyer is a tenant, signers of the Buyer shall be identified in accordance with regulations on electricity retail price promulgated by the Ministry of Industry and Trade;
4. Signers of the Seller shall be legal representatives or individuals authorized by the Seller and in possession of distribution grids capable of supplying electricity in a manner that fulfills demand of the Buyer.

4. Effective period of a Domestic PPA

The effective period of a Domestic PPA shall be agreed upon by the parties. If there is no agreement, the effective period of a Domestic PPA shall start from the date of signing to the terminating date by law.

The above is not official advice from BLawyers Vietnam. If you have any questions or suggestions about the above, please contact us at consult@blawyersvn.com. BLawyers Vietnam would love to hear from you.

Date: 23 October 2023

Writer: BLawyers Vietnam

Legal News and Update Team

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Newsletter #15 (EN version)