Vietnam: Mandatory Technology Transfer Registration – Why, What, Who, Where And How?
Legal News & Analysis - Asia Pacific - Vietnam - Regulatory & Compliance
30 July, 2018
Why? Under the previous practice, except for certain types of technologies restricted from transferring, a technology transfer agreement was valid regardless of whether it had been registered with the competent authority. In other words, registration of technology transfer was optional – it was not an obligation of the parties involved in technology transfer.
The new Law on Technology Transfer in Vietnam dated 19 June 2017, along with its implementing documents, i.e. Decree 76/2018/ND-CP dated 15 May 2018 and Circular 02/2018/TT-BKHCN dated 15 May 2018, which have come into effect since 1 July 2018, changed the previous practice significantly. Accordingly, in most cases registration of technology transfer has become mandatory.
What? With the exception of technologies restricted from transferring which must be proceeded with special procedures to get technology transfer permits, the following technology transfer must be registered with the competent authority to avoid being deemed invalid:
- Transfer of technology from a foreign country to Vietnam;
- Transfer of technology from Vietnam to a foreign country;
- Domestic technology transfer using State funding or State budget (excluding cases where Certificate of Registration of Science and Technology Task Outcomes is available).
- In this context, “technology” covers:
- Technical know-how and technological know-how;
- Technology plans or processes; engineering solutions, parameters, drawings or diagrams; formula, computer software and database;
- Solutions for rationalization of production and technology innovation;
- Accompanying machinery and/or equipment of the above-mentioned transferable technologies.
Where transferable technologies are subject to intellectual property rights protection, the transfer of the intellectual property rights shall be carried out in accordance with regulations of the Law on Intellectual Property. In other words, registration of technology transfer and registration of intellectual property right assignment/license should be carried out separately.
Who? The following party is responsible to register the technology transfer agreement with the competent authority in Vietnam on behalf of both parties:
- For transfer of technology from a foreign country to Vietnam: the transferee;
- For transfer of technology from Vietnam to a foreign country: the transferor;
- For domestic technology transfer using State funding or State budget: the transferee.
In brief, for technology transfer from or to a foreign country to or from Vietnam, the Vietnamese party bears the registration responsibility.
Where? An application for registration of technology transfer should be filed with:
For technology transfer from or to a foreign country: Department of Technology Appraisal, Examination and Assessment under Ministry of Science and Technology;
For domestic technology transfer: provincial Department of Science and Technology.
The official fee for examination of technology transfer agreement is equivalent to 0,1% of total value of the technology transfer agreement, but not less than 5 million VND (approx. US$216) and not more than 10 million VND (approx. US$433).
How? The application for registration of technology transfer must be filed within 90 days of the signing date of the technology transfer agreement. Required documents include:
- Application for registration of technology transfer (standard form);
- Original or certified copy of the technology transfer agreement;
- Notarized or certified translation of the technology transfer agreement into Vietnamese, if the technology transfer agreement is not in Vietnamese;
- Copies of Business Registration Certificate or an equivalent document of both parties;
- Documents confirming a legal capacity of each individual signatory of the technology transfer agreement for and on behalf of both parties;
- Letter of Authorisation, if the application is filed by an authorised third party.
Under the law, within 5 working days of the filing date of the application, the competent authority must issue either (i) a Certificate of Registration of Technology Transfer or (ii) a decision refusing to register the technology transfer and explaining reasons of the refusal, for example:
- The technology is restricted from transferring;
- The agreement does not specify technology subjects or technology transfer contents;
- Contents of the agreement do not comply with technology transfer regulations.
Where documents need to be supplemented or revised, the competent authority must notify the applicant of its request within 3-5 working days of the filing date.
It is still early days and we are keeping a close eye on how the new registration system works in practice.