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Civil procedure for IPR enforcement in Vietnam

Competent authorities:

For IPR cases, proceedings must be commenced in the court for the province where the defendant resides or works or has its head office or if a dispute is relating to compensation for non-contractual damages, the plaintiff may request the Court of the locality in which his/her residence, work place or head office is located or where the case causing damage occurs to hear the matter (Article 40.1(d), Civil Procedure Code 2015).

Flowchart of handling IPR infringement under civil proceedings in Vietnam as follow: (Download)

Procedure:

Basic procedures in a civil case:

(i) Submission of a statement of claims (a lawsuit petition):

  • To commence a civil action, plaintiff shall file a lawsuit petition, together with documentary evidences, to request the competent court to solve the dispute (Article 189, Civil Procedure Code 2015). With regard to IPR infringement cases, the plaintiff shall be requested to submit documentary evidence proving that he/she is a valid IPR holder as well as documentary evidence proving there has been IPR infringement. The submitted evidence must conform to the specific court’s guidance, normally legalized documents are required. (Article 478, Civil Procedure Code 2015).
  • The lawsuit petition will then be checked to figure out if the documents/evidence are sufficiently provided and forward the lawsuit petitions to another competent Court for hearing (Article 191.3(c), Civil Procedure Code 2015).
  • IPR holders/Plaintiff are entitled to request a competent court in Vietnam to grant a preliminary injunction at the time of (or after) lodging a lawsuit petition with the court when (i) there appears a likelihood of irreparable damages sustained by IPR holders, or (ii) there is a risk that infringing goods or other material evidence pertaining to such alleged infringement is destroyed or cannot be traced if they are not protected in time (Article 206.1, Vietnam IP Law). In such a case, IPR holders/Plaintiff who requests a preliminary injunction must deposit “a sum of money equal to twenty (20) per cent of the value of the goods subject to the application of provisional urgent measures, or at least twenty million (20,000,000) dong (approx. US$ 900) where it is impossible to value such goods” (Article 208.2 of Vietnam IP Law).
  • If the lawsuit petition lacks required documents/evidence, the court will require additional document/evidence (Article 27.3, Decree No. 105/2006/ND-CP).
  • The court may return the lawsuit petitions to the litigator in certain circumstances (Article 27.4, Decree No. 105/2006/ND-CP and Article 192, Civil Procedure Code 2015). In such case, the litigator are entitled to make a complaint to the Court (Article 192, Civil Procedure Code 2015).

(ii) Advance of Court Fees and Acceptance of the Case:

Within 03 working days upon receipt of a lawsuit petition, the Chief Justices of Courts shall assign one Judge for review. Within 05 working days from the date of being assigned, the Judges shall review the law petition. In case everything is in order, the Judge notifies the litigator to advance the Court fees which must be paid within 7 working days upon receipt of the Court’s notice on payment of Court fee in advance (Article 195.1 and 195.2, Civil Procedure Code 2015).

(iii) Preparation for hearing:

Within 3 days from the acceptance of the case, the Court shall notify the defendant of the plaintiff’s claims (Article 196.1, Civil Procedure Code 2015). In addition, within the next 15 days from receipt of the notice, the defendant must send to the Court his/her response.

During the preparation period for the hearing, the court shall conduct conciliation/mediation meetings between the involved parties with some exceptions (Article 205 and 206, Civil Procedure Code 2015)

As a matter of practice, at least two conciliation/mediation meetings will be held. If the parties reach an agreement during the conciliation/mediation process, then the court will make minutes of successful conciliation and issue a decision of recognition of the parties’ agreement exceptions (Article 212.1, Civil Procedure Code 2015).

Despite the fact that in practice it may take longer, under the laws within 2 months (or 4 months for complicated cases) from the date of the acceptance by the court, one of the following decisions shall be made by the court:

Within the trial preparation time limits (i.e. 04 months from the acceptance of the case), the Judges shall, on a case-by-case basis, issue one of the following decisions (Article 203.3(a, b, c and d), Civil Procedure Code 2015):

a) To recognize the agreement between the involved parties.

b) To suspend settlement of the case.

c) To terminate settlement of the case.

d) To bring the case to hearing.

(v) Court’s Hearing at the First Instance:

Within 01 month from the day on which the decision to bring the case to trial is issued, the Court must open the (first instant) Court session. This time limit might be extended to 2 months in case there is a legitimate reason to do so (Article 203.4, Civil Procedure Code 2015). The first-instant court hearing will involve the following procedures, namely, (i) procedure for commencing a court session (Articles 239-246, Civil Procedure Code 2015), (ii) oral argument in court session (Articles 247-263, Civil Procedure Code 2015) and (iii) deliberation and pronouncement of judgements session (Articles 264-269, Civil Procedure Code 2015), during this procedure, the court’s judge or decision will be issued.

(vi) Court’s Hearing at the Appellate:

In case that a party does not agree with the first instance court’s verdict, the party may make appeal in accordance with the appellate procedures. The appellate court for verdicts of the provincial people’s court in the IPR disputes is the supreme people’s court. The time limit for appeals is 15 days which runs from the date of judgment or, if the appellant was absent from the hearing, from the date the appellant receives a copy of judgment or the date when the judgment was posted (Articles 273.1, Civil Procedure Code 2015).

Appellant must pay the advance of the court’s fee in accordance with notice issued by the first instance court. Within 15 days from the receipt of the advance payment, first instant court shall send the appeal application together with the case’s file to the appellate court. The advance of court fees in the appellate courts are VND300,000 (~US$13) for civil disputes or VND2,000,000 (~US$87)  for commercial disputes (Resolution 326/2016/UBTVQH14). Within 2 months from the date of acceptance (Article 286.1, Civil Procedure Code 2015), the appellate court shall make one of the following decisions:

a) To suspend the appellate trial over the case;

b) To terminate the appellate trial over the case;

c) To bring a case to appellate trial.

Within 1 month (or 2 months in case of having reasonable causes) from the date of the decision to bring the case to hearing acceptance (Article 286.2, Civil Procedure Code 2015), the hearing shall be held in accordance with the appellate procedures. The appellate court hearing will involve the following procedures, namely, (i) procedures for opening an appellate court session (Articles 293-300, Civil Procedure Code 2015) and (ii) oral argument in appellate court session (Articles 201-315, Civil Procedure Code 2015),during this procedure, the appellate court judgment will be issued.

(vii) Enforcement of Court’s verdict: Once the court’s verdict comes into effect, the plaintiff (if it is the winner) has the right to request the defendant to comply with the Court’s verdict. If the defendant is unwilling to implement the court’s verdict, the plaintiff is entitled to submit an application to enforcement agency for enforcement of the court’s verdict. The time limit for requesting the competent authority for enforcement is 5 years from the effective date of the court’s verdict (Article 30.1, Law on enforcement of civil judgements). Within 5 days from the date on which the enforcement agency receives the application for enforcement, such agency must make a decision on enforcement of the Court’s verdict. Under the prevailing laws, the plaintiff is liable to enforcement fees.

Review Proceeding: Under the Code, the case shall be settled in 2 levels, first instance and appellate. However, in some special cases, verdicts issued by the above courts may be reviewed under supervisor or rehearing proceedings by the supreme people’s court. Such procedures must be initiated by the authorized persons (Chief People’s Supreme Court and Chief People’s Supreme Procuracy) and conducted on the certain grounds as stipulated in the Code

 

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