In the special program of VITV, Lawyer Nguyen Thanh Ha, Managing Director of SB Law, will discuss on the current regulation and coming draft of the Decree amending the e-commerce in Vietnam. The program will be shown at 10.30 am, Tuesday, January 01, 2013 for your kind view.
SB Law would like to summarize the discussion of the program in the following article.
Interviewer: What do you think about the recent e-commerce in Vietnam?
Lawyer Nguyen Thanh Ha: The assessment on the recent e-commerce in Vietnam should be officially launched in the report of the competent authorities, policy makers, Association of E-commerce, Department of E-commerce, Department of Information Technology in Ministry of Industry and Trade.
However, being a consumer, I see the increasing development of the e-commerce in Vietnam in recent years, which bring a lot of benefit for enterprises and consumers.
Regarding to the enterprises, especially Internet companies, they always grasp the new trend of the e-commerce in the world, localize and apply it to Vietnam. Additionally, they invest the technology and personnel to improve the e-commerce in Vietnam. With the high development of the e-commerce exchange, website and promotion, the enterprises can save the cost and human resources to market the products and services to the consumer, including young intellectual urban Internet users, which are 1/3 of the population.
Regarding to the consumers, the development of e-commerce brought the comfort to their life. For example, I, staying at home and in the office, use laptop, tablet and mobile phone to click on the product or service which I would like to buy. This method is useful in payment and delivery, which saves me time and cost.
However, in the recent years, we can see many disadvantages of e-commerce caused by the fraudulent of the cheating companies, as follows:
- Sell the fake products with poor quality.
- Promote by raising the price.
- Take advantage of e-commerce to multi-level marketing without any actual product or service.
- Close the website of some groupon companies, which leads to the influence of the benefit of the consumers.
Interviewer: We can see that e-commerce appeared along with the Internet. The government issued the first Decree 57/2006/NĐ-CP dated June 09, 2006 to govern e-commerce. How did this Decree regulate the e-commerce?
Lawyer Nguyen Thanh Ha: In the legal aspect, the e-commerce is regulated in the Vietnamese legal documents, especially the following documents:
Decree 57/2006 has 5 chapters and 19 Articles with 4 chapters’ directly governing e-commerce:
- Chapter 1: General provisions
- Chapter 2: Legal validity of e-documents.
- Chapter 3: E-documents in commercial activities
- Chapter 4: Handling of violations
- Chapter 5: Implementation provisions.
This Decree regulated on the general activities of e-commerce such as: e-documents, data message, originator, information system (including automated information system), place of business, e-signature; handling the violations in the e-commerce.
The most important point to focus in this Decree is the e-document, which is special in the feature of date message. Accordingly, the Decree clearly stated the place and time of sending and receiving of e-document.
Furthermore, the Decree regulated the e-commercial contract such as: offer and provisions of the contract. If the e-notification is sent without any clear recipient, it is not considered as the offer of the contract, except the sender mentions the responsibility in case of acceptance.
Then the Ministry of Industry and Trade issued the Circular No.09/2008/TT-BCT guiding and supplying information on entering the contract on e-commerce website.
The purpose of Circular 09 was to guide the Parties in supplying information and entering the contract on e-commerce website. The Circular also regulated the principles of contract and information on the website, the forbidden behaviors, private information protection and benefit of the consumers …
Afterwards, the Circular 46/2010 was issued to manage the operation of the e-commerce website. Accordingly, the Circular announced the e-commercial exchange and website with the regulation on registration procedure ….
Recently, we has just received the Decision on approving the development of e-commerce in the period 2011-2015
This Decision of the Prime Minister generated the overall purpose of the improvement of Vietnamese e-commercial in the Southeast Asian region, with many detailed plans.
Interviewer: In your opinion, what are the limitations of the e-commerce?
Lawyer Nguyen Thanh Ha: As we discussed, the legal framework for e-commerce includes the Decree 57 and documents such as Circular 09, 46 to enable the operation of the e-commerce. However, we can see many limitations such as:
The legal documents can not catch up with the rapid increase of the e-commerce. Besides the e-commerce exchange and website, the groupon and auction websites have not been regulated yet.
The business takes advantage of e-commerce to multi-level marketing with online shops, which attract money into the system. This type of business, which is not governed by any regulation, infringes the benefit of the consumers and avoids the control of the competent authority.
The promotion is not clearly stipulated in the legal documents. Many enterprises close without any notice to the consumers.
Shortage of the safety and protection of the consumer’s benefit in transaction.
Interviewer: In response to the complicated operation of e-commerce, the government asked for feedback of the draft of the new Decree from July 23 until September 21, 2012. Do you think the new Decree covers all aspects of the e-commerce in Vietnam now?
Lawyer Nguyen Thanh Ha: Nowadays, we can see the new Decree has been publicized to receive the feedback. You can follow it on the governmental website.
The draft has 7 chapters and 81 articles, which summarize all the content of the legal documents and supplement the new regulation on online auction and promotion websites.
- Chapter 1: General provisions
- Chapter 2: Entering the e-commerce contract
- Chapter 3: E-commerce operation
- Chapter 4: E-commerce management
- Chapter 5: Safety and security in e-commerce
- Chapter 6: Dispute settlement
- Chapter 7: Implementation provisions.
In general, the new provisions structure the previous documents and supplement the new documents and close the existing loopholes in management and forbidden behaviors ….
Interviewer: In your opinion, what is the limitation for amendment in the draft of the new Decree and how can we amend it?
Lawyer Nguyen Thanh Ha: The draft of new Decree can not cover all aspects of the e-commerce in Vietnam now. In particular, the Decree only regulates the online order, not the online purchase. Thus in the future, if the online purchase is developing, the Decree will be out of date.
Additionally, the new Decree does not cover the contract with foreign entity; however, the nature of the transaction is cross-border. When there is a cross-border contract, the Parties will be confused in governing law and regulation to apply.
There is one more point on the e-documents. Because the e-commerce transaction is easily imitated and hardly controlled, the government should strictly regulate the true version of the e-documents. The notarization is required several e-documents, if necessary. In the event of e-documents for payment, these documents should be verified by the payment service providers or payment intermediaries.
Finally, the draft of the new Decree is missing the Intellectual Property – the more popular infringement of the e-commerce transaction in comparison with the traditional transactions. Thus, we warn that the Decree should supplement this issue.
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