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Need-to-know Effective time of the Non-disclosure agreement

Need-to-know Effective time of the Non-disclosure agreement

by | Apr 3, 2024 | Contract, EN, Legal Guidance

NEED-TO-KNOW

EFFECTIVE TIME OF THE NON-DISCLOSURE AGREEMENT

The Non-disclosure agreement (NDA) is usually not the main contract, but it’s effective time may not coincide with the main contract, unlike other accompanying agreements. Basically, the NDA effective time is the period during which the Recipient is obliged to keep confidential information confidential as desired by the Provider.

How should this effective time be prescribed?

  • Benefit to the Provider: This effect should be “indefinite”, meaning that even if the Master Contract terminates and/or the transaction ends, the Recipient must keep confidential information confidential.

Example: This Non-disclosure agreement is effective from the time the Recipient first acquires the Confidential Information, continuously and forever (including if the Master Contract and/or Transaction is terminated, cancelled or invalidated).

  • Benefit to the Recipient: This effect should be “narrow”, meaning that when the Main Contract is terminated, the Recipient is no longer required to keep confidential information confidential.

Example: This Non-disclosure agreement is effective from the time it is entered into by the Parties, continues continuously and terminates at the same time as the Master Contract.

  • Cân bằng cho Các Bên: This effect should be “deterministic”, i.e. after a certain period of time (at which time the disclosed confidential information is not harmful to the Provider) the NDA ceases and the Recipient is no longer required to keep the confidential information confidential.

Example: This Confidentiality Agreement is effective from the time the Recipient first acquires the Confidential Information, is continuous and terminates [36 months] from the time of termination of the Master Contract.

(Where there is special confidential information that needs to be protected forever, an “exception rule” should be added.)

Note: In fact, many NDAs stipulate “… the obligation to keep confidentiality of Confidential Information in effect after the termination of this NDA”, which may affect the enforceability, as the question arises: Does the NDA terminate, does the Recipient’s liability provision for breach of confidentiality obligation remain valid?

Need-To-Know Validity Of Digital Signature

Need-To-Know Validity Of Digital Signature

by | Mar 29, 2024 | Contract, EN, Legal Guidance

NEED-TO-KNOW

VALIDITY OF DIGITAL SIGNATURE

1. What is a digital signature? A digital signature (DS) is a form of electronic signature of an individual or organization. DS can be provided by an official unit (providing DS certification services in accordance with Vietnamese law, such as VNPT, Viettel, FIS CORP,…) or unofficially (not licensed by the Government of Vietnam).

2. Does DS invalidate a civil transaction?

Transactions signed with DS have the same legal validity as directly signed[i], when DS meets the security conditions prescribed by law (validity, secret key, public key, control of the signer’s secret key,…). In other words, signing with a legally satisfactory DS will not render the transaction invalid.

Note, according to Vietnamese law[ii], Transactions are considered invalid when the subject establishing the transaction laDS capacity (passive legal, active legal). Simply, we need to verify that the DS really belongs to the partner’s representative and is it legal?

We think that the use of DS provided by an official unit would be advantageous in this verification, as well as when requesting the deed as evidence if a dispute arises in this regard (using unofficial DS, even provided by a world-renowned unit,  but it will be difficult to prove this).

3. Does the Company’s individual DS have a legal risk for transactions?

If the transaction is signed using the Company’s legitimate DS, then it is essentially valid, the likelihood of invalidity will be very low.

If the transaction is signed with a personal DS (whether a individual of the Company, a legal representative, even with the Company’s seal), then it can still be disputed as to the validity of the transaction resulting in the transaction being invalid. Because then, the conclusion will depend on the evidence proving the legitimacy of DS as mentioned above.

 

[i] Article 8 and 9 of Decree No. 130/2018/ND-CP

[ii] Articles 122 and 117 of the Civil Code No. 91/2015/QH13

LEGAL UPDATE RELATING TO FINANCE AND CREDIT (MONTHLY LEGAL UPDATE – 03/2024)

LEGAL UPDATE RELATING TO FINANCE AND CREDIT (MONTHLY LEGAL UPDATE – 03/2024)

by | Mar 7, 2024 | Banking, EN, Legal Update

1. Legal documents are effective in 03/2024

1.1. Circular No. 24/2023/TT-NHNN amendments to some articles of circulars on submission, presentation and provision of information and documents on population upon carrying out administrative procedures related to establishment and operation of banks

  • Name of legal document: Circular No. 24/2023/TT-NHNN issued on 29/12/2023 by the State Bank of Vietnam amendments to some articles of circulars on submission, presentation and provision of information and documents on population upon carrying out administrative procedures related to establishment and operation of banks (referred to as the “Circular No. 24/2023/TT-NHNN”).
  • Effective date: 01/03/2024.

The content should be noted: Amendment to and replacement of some points and appendices of the Circular No. 22/2018/TT-NHNN dated September 05, 2018 of the Governor of the State Bank of Vietnam on guidelines for procedures and applications for approval for provisional lists of personnel of commercial banks, non-bank credit institutions and foreign bank branches.

Specifically, Article 8 of the Circular No. 24/2023/TT-NHNN stipulates: “Article 8. Amendment to and replacement of some points and appendices of the Circular No. 22/2018/TT-NHNN dated September 05, 2018 of the Governor of the State Bank of Vietnam on guidelines for procedures and applications for approval for provisional lists of personnel of commercial banks, non-bank credit institutions and foreign bank branches

1. Point b Clause 1 Article 7 shall be amended as follows:

“b) Full name; title and supervisory unit; ID card number or personal identification number of the Director General (Director) expected to be appointed (in case where he/she holds Vietnamese nationality); number of passport or a valid passport alternative of the Director General (Director) expected to be appointed (in case where he/she does not hold Vietnamese nationality), date of issue, place of issue;”.2. The Appendix 01 and Appendix 02 shall be replaced by the Appendix 16 and Appendix 17 issued together with this Circular respectively.”

Need-to-know Effective time of the Non-disclosure agreement

Need-to-know Definition of Confidential Information in the Non-Disclosure Agreement

by | Mar 6, 2024 | Contract, EN, Legal Guidance

NEED-TO-KNOW

DEFINITION OF CONFIDENTIAL INFORMATION IN THE NON-DISCLOSURE AGREEMENT

Is the definition of Confidential Information (CI) important? Definition of CI as the first thing to know in the Non-Disclosure Agreement. It helps you determine the object of rights and obligations – helps to answer the question of what information must be kept confidential, which does not.

How should CI be defined?

  • Benefit to the Provider: CI should be understood in an expansive sense, meaning any information received and acquired by the Recipient arising out of and/or in connection with the transaction between the Parties.
  • Example: CI means any and all information that the Recipient (i) receives from the Provider or a Third Party; and/or (ii) obtained in the course of the Transaction arising out of and/or in connection with the Transaction between the Parties at any time (before, during and after the termination of the Transaction) in oral, written, digital data or any other form of communication (tangible or intangible).
  • Benefit to the Recipient: CI should be understood in a narrow sense, i.e. only trade secrets or information that have been jointly confirmed by the Parties to be confidential.
  • Example: TTM means the trade secret(s) and information in the possession of the Supplier which has been jointly confirmed by the Parties as confidential, which the Provider delivers to the Recipient during the execution and validity of the Transaction.
  • Balancing the Parties: CI should be construed in such a way that it is identified by the Provider at its sole discretion and notified to the Receiving Party as confidential.

Example: CI means any and all information received by the Recipient (i) from the Provider and/or obtained during the Transaction; and (ii) has been identified and notified by the Provider as confidential, arising out of and/or in connection with a Transaction between the Parties in oral, written, digital data or any other form of communication communication (tangible or intangible).

LEGAL UPDATE RELATING TO FINANCE AND CREDIT (MONTHLY LEGAL UPDATE – 03/2024)

Legal update relating to Finance and Credit (Monthly Legal Update – 01/2024)

by | Jan 5, 2024 | Banking, EN, Legal Update

LEGAL DOCUMENTS ARE ISSUED IN 12/2023

1. Circular No. 15/2023/TT-NHNN regulating credit information activities of the State Bank of Vietnam

  • Name of legal document: Circular No. 15/2023/TT-NHNN issued on 05/12/2023 by the State Bank of Vietnam regulating credit information activities of the State Bank of Vietnam (referred to as the “Circular No. 15/2023/TT-NHNN”).
  • Effective date: 01/01/2025.

The content should be noted: Stipulating on rights and obligations of credit institutions.

Specifically, Article 16 of Circular No. 15/2023/TT-NHNN stipulates: “Article 16. Rights and obligations of credit institutions

  1. Establish an information infrastructure to meet the requirements of data creation and control of data provided to CIC; promulgate internal regulations and manage the credit information criteria system throughout the system.
  2. Pay in full and on time the fees for exploiting and using credit information services according to the contract signed with CIC.
  3. Send officials and employees to participate in credit information training courses organized or coordinated by CIC.
  4. Implement other rights and obligations as agreed with CIC and relevant provisions of law.”

2. Decision No. 2345/QD-NHNN on implementing safe and secure solutions in online payments and bank card payments

  • Name of legal document: Decision No. 2345/QD-NHNN issued on 18/12/2023 by the State Bank of Vietnam on implementing safe and secure solutions in online payments and bank card payments (referred to as the “Decision No. 2345/QD-NHNN”).
  • Effective date: 01/01/2025.

The content should be noted: Stipulating on applying authentication methods to online payment.

Specifically, Article 1 of Circular No. Decision No. 2345/QD-NHNN stipulates: “Article 1. Credit institutions, foreign bank branches (FBBs), organizations providing payment services shall, in accordance with the categorization in Appendix 01 hereof, apply authentication methods to online payment (internet banking, mobile banking) as follows:

No. Transaction1 Minimum authentication methods2
Individual customers Organization customers
1 Category A transactions – Username, password or PIN (if a customer has been authenticated during log-in, authentication is not required during transaction) – Username, password or PIN (if a customer has been authenticated during log-in, authentication is not required during transaction)
2 Category B transactions

– OTP sent by SMS or Voice or Email; or

– OTP Matrix Card; or

– Basic OTP generated by soft/hard token; or

– Two-factor authentication method; or

– The customer’s handheld device3, or

– Advanced OTP generated by soft/hard token; or

– FIDO Authentication; or

– Safe electronic signature.

– OTP sent by SMS or Voice or Email; or

– OTP Matrix Card; or

– Basic OTP token without authentication of token user; or

– Handheld device biometrics of the customer’s legal representative or accountant 3.
3 Category C transactions

– The customer’s biometric identifier that: (i) matches the biometric data in the customer’s ID card issued by the police authority4; or (ii) is authenticated by the customer’s electronic identification account created by the electronic identification and authentication system5; or

– The customer’s biometric identifier that matches the customer’s biometric data in the biometric database6. It is recommended to combine with SMS/Voice OTP or OTP generated by soft/hard token.

– Basic OTP soft/hard token with authentication of software/token user; or

– Two-factor authentication method.
4 Category D transactions

The customer’s biometric identifier that: (i) matches the biometric data in the customer’s ID card issued by the police authority4; or (ii) is authenticated by the customer’s electronic identification account created by the electronic identification and authentication system; or (iii) matches the biometric data stored in the verified biometric database6, combined with one of the following authentication methods:

– Advanced OTP generated by soft/hard token; or

– FIDO authentication; or

– Safe electronic signature.

– Advanced OTP generated by soft/hard token; or

– FIDO authentication; or

– Safe electronic signature.

Notes:

– Authentication methods of Category A, B, C transactions can be applied to Category D transactions.

– Authentication methods of Category A, B transactions can be applied to Category C transactions.

– Authentication methods of Category A transactions can be applied to Category B transactions.

– Units that apply authentication methods other than the methods specified above shall send written reports to State Bank of Vietnam (via Information Technology Department) at least 03 months before application.”

3. Circular No. 17/2023/TT-NHNN regulating inspection of compliance with monetary and banking policies and laws

  • Name of legal document: Circular No. 17/2023/TT-NHNN issued on 25/12/2023 by the State Bank of Vietnam regulating inspection of compliance with monetary and banking policies and laws (referred to as the “Circular No. 17/2023/TT-NHNN”).
  • Effective date: 08/02/2024.

The content should be noted:

  • Firstly, stipulating inspection principles.

Specifically, Article 5 of Circular No. 17/2023/TT-NHNN stipulates: “Article 5. Inspection principles

  1. The inspection is carried out within authority and on the basis of legal regulations.
  2. Inspections are conducted regularly according to plan or unexpectedly.
  3. Ensure accuracy, objectivity, honesty, democracy, timeliness, and effective coordination.
  4. Ensure there is no overlap or duplication of content, time, or inspection objects between inspection activities of inspection units, between inspection activities and inspection activities.

When conducting inspection activities, if overlap or duplication is detected between inspection activities and inspection activities, carry out inspection activities; If overlap or duplication is detected in inspection activities, heads of inspection units shall agree to conduct an inspection.”

  • Secondly, stipulating on inspection objects of the inspection unit.

Specifically, Article 8 of Circular No. 17/2023/TT-NHNN stipulates: “Article 8. Inspection objects of inspection units

  1. The Banking Inspection and Supervision Agency checks the compliance with monetary and banking policies and laws for inspection subjects, including:a) Credit institutions, except for those specified in Points a and c, Clause 3 of this Article;b) Foreign bank branches as assigned by the Governor of the State Bank;c) Organize credit information activities;d) Subjects of inspection by the State Bank branch, inspection and supervision of the State Bank branch if deemed necessary.
  2. The unit under the Bank Inspection and Supervision Agency inspects the inspection subjects specified in Clause 1 of this Article who are the unit’s banking inspection and supervision subjects according to their assigned functions and tasks.
  3. State Bank branches, inspection and supervision of State Bank branches check the observance of policies and laws on currency and banking for subjects of inspection in the province or centrally city where the State Bank branch is headquartered, including:a) People’s Credit Fund;b) Foreign bank branches, except for the subjects specified in Point b, Clause 1 of this Article;c) Branches and transaction offices of credit institutions;d) Representative offices in Vietnam of foreign credit institutions and other foreign organizations with banking activities;e) Organizations with foreign exchange activities and gold trading activities; The organization providing intermediary payment services is not a bank.
  4. Other administrative units under the State Bank inspect the observance of policies and implement legal documents within the scope of their advisory functions and assist the Governor of the State Bank in implementing management of that unit for inspection objects, including:a) Credit institutions, except for those specified in Point a, Clause 3 of this Article;b) Foreign bank branches;c) Organizations with foreign exchange activities and gold trading activities; The organization providing intermediary payment services is not a bank.

5. In case of necessity, inspection units shall carry out inspection on other inspection objects when assigned by the Governor of the State Bank.”

LEGAL UPDATE RELATING TO FINANCE AND CREDIT (MONTHLY LEGAL UPDATE – 03/2024)

Legal update relating to Finance and Credit (Monthly Legal Update – 11/2023)

by | Dec 6, 2023 | Banking, EN, Legal Update

LEGAL DOCUMENTS ARE ISSUED IN 11/2023

1. Circular No. 20/VBHN-NHNN regulations on licensing and organization and operation of commercial banks, foreign bank branches, representative offices of foreign credit institutions, and other foreign organizations with banking activities in Vietnam

  • Name of legal document: Circular No. 20/VBHN-NHNN issued on 10/11/2023 by the State Bank of Vietnam regulations on licensing and organization and operation of commercial banks, foreign bank branches, representative offices of foreign credit institutions, and other foreign organizations with banking activities in Vietnam.
  • Consolidation date: 10/11/2023.

The content should be noted: Consolidating the following circulars: Circular No. 40/2011/TT-NHNN dated December 15, 2011 of the Governor of the State Bank of Vietnam, Circular No. 17/2017/TT-NHNN dated November 20, 2017 of the Governor of the State Bank of Vietnam, Circular No. 17/2018/TT-NHNN dated August 14, 2018 of the Governor of the State Bank of Vietnam, Circular No. 28/2018/TT-NHNN dated November 30 2018 of the Governor of the State Bank of Vietnam, Circular No. 25/2019/TT-NHNN dated December 2, 2019 of the Governor of the State Bank of Vietnam, Circular No. 28/2021/TT-NHNN dated December 31 December 2021 of the Governor of the State Bank of Vietnam, and Circular No. 13/2023/TT-NHNN dated October 31, 2023 of the Governor of the State Bank of Vietnam.

2. Circular No. 21/VBHN-NHNN prescribing application and procedures for approval of changes of commercial banks and foreign bank branches

  • Name of legal document: Circular No. 21/VBHN-NHNN issued on 10/11/2023 by the State Bank of Vietnam prescribing application and procedures for approval of changes of commercial banks and foreign bank branches.
  • Consolidation date: 10/11/2023.

The content should be noted: Consolidating the following circulars: The Circular No. 50/2018/TT-NHNN dated December 31, 2018 of the Governor of the State Bank of Vietnam (SBV), The Circular No. 06/2022/TT-NHNN dated June 30, 2022 of the SBV’s Governor and The Circular No. 13/2023/TT-NHNN dated October 31, 2023 of the SBV’s Governor.

3. Circular No. 14/2023/TT-NHNN internal control system of non-bank credit institution

  • Name of legal document: Circular 14/2023/TT-NHNN issued on 20/11/2023 by the State Bank of Vietnam internal control system of non-bank credit institution (referred to as the “Circular No. 14/2023/TT-NHNN”).
  • Effective date: 01/10/2024.

The content should be noted: Stipulating on requirements for internal control system.

Specifically, Article 4 of Circular No. 14/2023/TT-NHNN stipulates: “Article 4. Requirements for internal control system

1. The internal control system of a non-bank credit institution shall fulfill the following requirements:

a) Meeting requirements according to regulations of the Law on Credit Institutions;

b) Being appropriate for the scale, conditions and complexity of the non-bank credit institution’s business activities;

c) Having sufficient financial, human and IT resources in order to ensure the internal control system’s effectiveness;

d) Creating and maintaining control culture and work ethics for the non-bank credit institution.

2. The non-bank credit institution shall have internal regulations in compliance with regulations of the Law on Credit Institutions, in which the following requirements shall be met:

a) Being consistent with regulations in this Circular and relevant laws;

b) The Board of Directors or the Council of Members promulgates regulations on the non-bank credit institution ‘s organization, management and activities, except for matters under the competence of the Shareholders’ Council and owner; the Board of Controllers promulgates its own internal regulations; the Director General (Director) promulgates work regulations, processes and procedures (hereinafter referred to as “internal process”);

c) Being subject to regular assessments specified in this Circular and the non-bank credit institution’s regulations on appropriateness of and compliance with the law, and making amendments if necessary.

3. The internal control system shall have three lines of defense as follows:

a) The first line of defense has functions of risk identification, control and minimization carried out by the following departments: business departments (including product development department), other revenue-generating departments; departments responsible for making risk-bearing decisions; departments responsible for risk limit allocation, risk management and risk minimization (affiliated to a business department or an independent department) in each type of transactions and business activities; human resource department, accounting department;

b) The second line of defense has functions of formulation of risk management policies and issuance of internal regulations on risk management and monitoring in accordance with regulations of law, carried out by the following departments: Departments conforming to the regulations in Article 16 of this Circular and risk management department specified in Article 18 of this Circular;

c) The third line of defense has the function of internal audit carried out by the internal audit department specified in the Law on Credit Institutions and this Circular.

4. Discussions and conclusions on the internal control system in meetings held by the Board of Directors, Council of Members, Board of Controllers, Risk Management Committee, and Human Resource Committee shall be recorded in writing, in which agreements and disagreements of members shall be specified.

5. Independent assessment of the internal control system shall be carried out in accordance with the State Bank’s regulations on independent audit in non-bank credit institutions and foreign bank branches.”