Re-Authorisation Of Signing Authority By Legal Representative

an the legal representative cum general director re-authorise another person to sign an agreement approved by the Board if he/she is authorised by the Board to sign this agreement?

Though there remain some counter arguments (as discussed below), subject to the provisions of the charter of the relevant company (e.g. there is no specific provision of the charter which prohibits the legal representative from re-authorising his authority to other person), it is arguable that the legal representative can re-authorise his/her signing authority to another person to sign the agreement. This is because:

  • Under Article 138.1 of the Civil Code 2015, an individual or legal entity can authorise other individual and legal entity to establish and perform the civil transaction.

  • Under Article 12.3 of the Enterprise Law 2020, the legal representative must authorise the other person to carry out his/her authorities if he/she is absent from Vietnam. This suggests that the legal representative can re-authority any other person to perform his/her authorities.

  • The representation authority is a default right of the legal representative (Article 12.1 of the Enterprise Law 2020). Therefore, while the Board can approve the agreement, the right to represent the company to sign such agreement should belong to the legal representative.

Read MoreInfo
Comment
Written by Nguyen Quang Vu On In

NEW DECREE ON SECURITY INTERESTS REGISTRATION – PART I

On 30 November 2022, the Government issued Decree 99 on security interest registration (Decree 99/2022) to replace Decree 102/2017 (Decree 102/2017) on the same subject matter. Decree 99/2022 will take effect from 15 January 2023.

·         Decree 99/2022 introduces several measures which, if applied correctly, could substantially reduce the burden of obtaining a registration for a security interest under Vietnamese law. In particular, the declaration of the content to be registered incorrectly in accordance with the law is no longer basis for the registrar to refuse the registration of security interest.

·         The registrar must not introduce or require procedures which are different from those provided in Decree 99/2022. Decree 99/2022 prohibits the registrar from requesting the submission of additional documents or information not specifically required by this Decree, or requesting the amendment of the name or the terms of the security agreement. The registrar must bear responsibilities if breaching this principle. Under Decree 102/2017, the registrar may request for this amendment if there is an error arising from the applicant’s declaration mistake.

Read MoreInfo
Comment
Written by Nguyen Quang Vu On In ,

Can an investment project be mortgaged under Vietnamese law?

The answer is a qualified “yes”. It is possible to mortgage an investment project under Vietnamese law because:

·         The Investment Law 2020 allows an investor to assign (chuyển nhượng) an investment project in whole and in part. And Decree 31/2021 implementing the Investment Law 2020 expressly provides for the procedures when an investment project is assigned as a result of the enforcement of a security interest including a mortgage.

·         Decree 21/2021 on secured transactions expressly provides the investor of an investment project can mortgage an investment project to the extent such investment project is not prohibited from assignment by the investment regulations. Decree 99/2022 on registration of secured transactions also provide for specific procedures to register a mortgage over investment projects which use land such as residential housing, other construction works, agriculture and forestry development.

·         In practice, it appears that it is common for banks to take mortgage over investment projects.

Read MoreInfo
Comment
Written by Nguyen Quang Vu On In ,