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Allens Arthur Robinson (Allens) Is A January 2010 edition contents In brief: Unveiling a new look for 2010, this month's issue of the VLU reports on recent New rules for education 1 changes in the education and petroleum sectors. Proposed changes to the 3 We also cover recent pronouncements on labour code apartment usage and take another look at the A strict approach to apartment 6 requirements for acquiring Vietnamese usage citizenship. We take a close look at the current A new phase for the 7 petroleum sector laws governing gambling in Vietnam, while our An update on acquiring 9 case commentary reports on an HCMC decision Vietnamese citizenship in which the Court looked at the entire Casinos in Vietnam – the state 10 circumstances of a contract in reaching its of play decision. Case commentary 13 New legal instruments 15 Visit www.vietnamlaws.com Allens Arthur Robinson (Allens) is a . subscribe to (or take a free tour leading international law firm in South of) Vietnam Laws online East Asia, Greater China, and Australia. database – a searchable database of over 3,400 of our With 15 offices in Bangkok, Beijing, English translations of Brisbane, Hanoi, Ho Chi Minh City, Vietnamese laws regulating Hong Kong, Jakarta, Melbourne, Perth, investment and business Phnom Penh, Port Moresby, Shanghai, . access free translations of a Singapore and Sydney, Allens has an selection of Vietnamese laws extensive network in Asia. read the Vietnam Legal Update from 2010 back to 1997 - Allens' Vietnam practice is led by complete with index of contents resident partners Bill Magennis, Nigel and search function The material contained in Vietnam Legal Update Russell and Thomas Miller. Our in- . find out more about our practice is intended to inform readers of recent legal country team consists of international in Vietnam developments in Vietnam. It is not intended and and local lawyers and legal translators. should not be relied upon as legal advice. Should readers wish further information in We encourage feedback from our Visit www.aar.com.au relation to any legal instrument or matter readers regarding the Vietnam Legal mentioned in this issue, they are encouraged to . find out more about the Allens Update. Please direct all enquiries, contact one of our Vietnam offices (details at the Arthur Robinson network and comments and suggestions to us via our international practice email at [email protected]. end of this issue). © 2010 Allens Arthur Robinson - Vietnam Laws January 2010 1 New rules for education Law 44/2009/QH12 revising Law 38/2005/QH11 on Education, dated 25 November 2009 (Law 44) In November 2009, Law 44 was passed amending certain provision of the 2005 Law on Education. Law 44 will take effect from 1 July 2010. We now take a brief look at some of the key changes introduced by the amending law. Setting up a school Under the previous law and regulations, in order to establish any school (including a university but not including vocational colleges which are dealt with separately) an application required a 'decision on establishment of the Law 44 school'. Law 44 introduces a new hurdle, requiring an additional 'permission introduces a to conduct educational activities'. In the case of universities, power to issue such a permission is conferred on the Minister of Education. For all other new hurdle, schools, Law 44 provides that the Minister for Education will issue guidance on requiring a the powers of other relevant bodies to grant such permissions. 'permission to Law 44 provides that in order to set up a school, there must be a plan on conduct establishment of the school. The plan must address a range of matters educational including the targets of the school, the content of its education programs, details on the land and materials facilities for the school and its financial activities' resources. In order to obtain a permission to conduct educational activities, further conditions apply, including: . obtaining a decision on establishment of the school; . there must be appropriate facilities, land and equipment for the proposed educational purpose; . the school must be located in a safe environment; . the education program and materials must be in accordance with the relevant educational level; . the teachers and administrative managers must be appropriately qualified; . there must be sufficient financial resources; and . the school must have regulations for its operation and organisation. Despite these general conditions, it is not clear what form the 'permission to conduct educational activities' will take and it is assumed that these details, as well as others, will be addressed in further regulation. Suspending or dissolving a school Those same regulatory bodies which are empowered to approve the © 2010 Allens Arthur Robinson - Vietnam Laws January 2010 2 establishment of a school, or grant permission to conduct educational activities, also have the power to withdraw such a decision or suspend the operation of a school. The Law provides for the circumstances in which a school may be suspended, which include where: . a school conducts a fraudulent act aimed at obtaining a permission to conduct educational activities; . a school fails to meet any of the criteria established for obtaining a permission to conduct educational activities; . a school's permission was issued by an incompetent person; . a school fails to commence educational activities within the time allowed by the permission to conduct educational activities; or . a school commits a breach of the laws on education which is subject to penalty for administrative offences in the form of suspension. Law 44 further sets out the circumstances in which a school may be dissolved which include where: . a suspended school fails to address the reasons for its suspension during the suspension period; . there is a serious breach of the regulations on management, organisation and operation of a school; . the school's objectives and operational matters set out in the establishment decision are no longer appropriate to socio-economic development needs; or . at the request of the school. A new focus Law 44 also appears to aim at a more practical and international focus for Vietnamese schools, by providing that educational programs and textbooks should be both practical and work toward international integration. Changes aimed at making textbooks more practical will commence in July 2010. The amended law also notes that Vietnam encourages foreign investment in education in Vietnam. © 2010 Allens Arthur Robinson - Vietnam Laws January 2010 3 Transparency in the education sector Law 44 also requires schools to publicly announce their objectives, education programs, resources, finances and systems of diplomas and certificates. It appears that these new requirements are aimed at providing insight into schools for prospective students who may otherwise struggle to learn this information before deciding whether to become a student. Proposed changes to the Labour Code Draft 2 of the New Labour Code, issued by the Ministry of Labour, War Invalids and Social Affairs, dated 2009 (Draft Code) The current Labour Code was issued in 1994 and although it has been subsequently amended 3 times (in 2002, 2006 and 2007) it continues to give rise to the need for clarification and arguably does not address all the issues demanded by Vietnam's current labour market. To address this situation, the Ministry of Labour, War Invalids and Social Affairs (MOLISA), together with other relevant authorities, has prepared a new Draft Code. The Draft Code is currently under discussion and review and will ultimately be reviewed by the Ministry of Justice, the Government and finally the National Assembly. It is slated to be passed by the National Assembly in late 2010. Although during this review period the Draft Code may be amended by the relevant authorities, we summarise some of the major changes being considered in the current draft, which impact on all aspects of the Vietnamese labour market. Labour contracts The Draft Code proposes to abolish the 36 month maximum limit on the period of a definite term contract. Moreover, a definite term contract will be able to be renewed more than once and will only be automatically converted into an indefinite term contract if the parties do not extend it within 30 days of its expiry. Probation Under the current draft, the allowable length of probation period will depend on the term of the relevant labour contract: . for labour contracts with a definite term less than 1 year, the maximum probation period will be 1 month; . for labour contracts with a definite term of less than 3 years, the maximum probation period will be 2 months; and © 2010 Allens Arthur Robinson - Vietnam Laws January 2010 4 . for indefinite labour contracts or those with a definite term of more than 3 years, the maximum probation period will be 3 months. The Draft Code stipulates that the minimum salary for a probation period will be 80% of the salary to be paid after successful probation, up from the current 70%. Importantly, the Draft Code specifies that an employer may only terminate a probation contract if the employee cannot fulfil their tasks during the probation period. If this condition is not met, the probationary employee must be hired permanently. Unilateral termination of a labour contract by an employer, redundancies and dismissal The provisions of the Draft Code broaden the circumstances in which an employer may unilaterally terminate a labour contract to include: . situations of epidemic diseases; The proposed . meeting the requirements
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