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RESOLVING THE CONFLICT OF LAWS IN GRANTING LICENSE TO E-COMMERCE ACTIVITIES APPLYING TO FOREIGN INVESTORS - ipic, luat, luật, tư vấn đầu tư, tu van dau tu, tư van doanh nghiep

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RESOLVING THE CONFLICT OF LAWS IN GRANTING LICENSE TO E-COMMERCE ACTIVITIES APPLYING TO FOREIGN INVESTORS

 IPIC Law Company recently has applied a petition to the Government about handling the conflict of laws issues in the field of E-commerce related to the Decree No. 52/2013/ND-CP dated May 16, 2013 of the Government on E-commerce and Decree No. 09/2018/ND-CP dated January 15, 2018 of the Government which have been specified in detail on the Commercial Law and the Law on Foreign Trade Management related to goods trading activities and many other activities directly related to the purchase and sale of goods by foreign investors and foreign-invested economic organizations in Vietnam.

 Specifically, an e-commerce activity applied to foreign investors can be governed by two different documents and by different licensing conditions that make difficulties for the investors and lack of plainness and consistency in legal policy.

Regarding to the resolution of the above issues, on February 25, 2020 the Vietnam E-commerce and Digital Economy Agency - Ministry of Industry and Trade issued the Official Dispatch No.120/TMDT-CS consisting the following points:

Firstly, the Government's Decree No. 09/2018/ND-CP dated January 15, 2018 was issued to meet the needs of state management of foreign investment activities in some areas that require specific supervision in observation such as the field of goods circulation. Whereby the result of the licensing procedure is that a foreign-invested economic organization is entitled to conduct trading goods or a number of activities directly related to the sale and purchase of goods, of which include providing the E- commerce services activity.

Secondly, as the Government's Decree No.52/2013/ND-CP dated May 16, 2013 on E-Commerce, the object of registration procedures are websites or e-commerce applications. The registration process will focus on reviewing the business model associated with each specific website or application; review the structure and function of website or application that meets the regulations on information disclosure, on the process of contract signing and on assigning responsibilities between parties involved in E-commerce activities on websites or applications. This registration process will not consider whether the owner of the website or application is a foreign-invested economic organization.

In conclusion, the content specified in Decree No.09/2018/ND-CP and Decree No. 52/2013 / ND-CP do not overlap on the scope and subjects of application. Therefore, customers can perform the two administrative procedures mentioned above: business licensing procedures of the Department of Industry and Trade on foreign investment activities in the field of providing E-commerce services and registration procedures in establishing website or application providing E-commerce services with Ministry of Industry and Trade.

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