On April 17, 2023, the Vietnamese government issued Decree No. 13/2023/ND on the Protection of Personal Data (“PDPD”), following extensive public consultations and multiple rounds of review since the first release of its draft version in February 2021. This is a long-awaited legal instrument which is designed to be the very first comprehensive regulation on the protection of personal data in Vietnam. The PDPD is set to take effect on July 1, 2023, without any transitional period. All Vietnamese and foreign organizations and individuals located in Vietnam and/or directly participating in or related to personal data processing activities in Vietnam must comply with the PDPD. As expected, the PDPD sets out significantly new requirements on the processing of personal data. The most critical provisions include: Eight principles for the processing of personal data: (i) lawfulness, (ii) transparency, (iii) purpose limitation, (iv) data minimization, (v) accuracy, (vi) integrity, confidentiality, and security, (iv) storage limitation, and (viii) accountability (Article 3). Critical new definitions and concepts, notably including personal data (Article 2.1); basic personal data (Article 2.3); sensitive data (Article 2.4); data subject (Article 2.6); data controller (Article 2.9); data processor (Article 2.10); parties controlling and processing personal data (Article 2.11); third parties (Article 2.12); and cross-border transfer of personal data (Article 2.14). Eleven data subject rights, including the right to know; right to consent; right to access; right to withdraw consent; right to delete data; right to restrict data processing; right to request the provision of data; right to object to data processing; right to complain, denounce and initiate lawsuits; right to claim compensation for damage; and right to self-defense (Article 9). Specific responsibilities of data controllers (Article 38), data processors (Article 39) and third parties (Article 41). Specific requirements in the exercise of data subject rights (Articles 14-16). Rules on data subjects’ consent, including the requirements on

Since the issuance last October of Decree No. 71/2022/ND-CP (“Decree 71”), the differentiation of film vs. non-film content has become increasingly important for pay-TV service providers in Vietnam, because they are subject to completely different licensing requirements. With the effectiveness of Decree 71 on January 1, 2023, overseas providers of over-the-top (OTT) pay-TV services, including video on demand (VOD) content, to Vietnamese users are subject to licensing requirements and the establishment of a local presence in Vietnam. Meanwhile, the new Cinema Law promulgated on June 15, 2022, and its guiding Decree No. 131/2022/ND-CP dated December 31, 2022—both of which also took effect on January 1, 2023—do not impose any licensing requirements on film disseminators. Although there are ambiguities in Decree 71’s wording, the Ministry of Information and Communication (MIC) and the Authority for Broadcasting and Electronic Information (ABEI) under the MIC have confirmed orally in a closed industry meeting, without written confirmation, that for VOD film-only content, OTT pay-TV service providers are exempted from the licensing requirements of Decree 71 and are instead subject to regulations of the Cinema Law. This is why film vs. non-film content has become critical in shaping the business models of overseas pay-TV service providers. In this article, we provide an overview of the current regulations and draft regulations with regard to the classification/rating of film content under the regulations of the Cinema Law and its sub-laws, and the classification/rating of non-film content under the regulations of Decree 71.   Film Classification/Rating Under the Cinema Law, “films” are defined to include feature films, documentaries, cartoons, and films of combined genres. The law explicitly provides that “films” do not include recorded products for disseminating news, art shows, video games, recorded products that show the activities of one or more people and describe events and situations, or reality shows. These exclusions

On April 3, 2023, the government of Vietnam issued Decree No. 10/2023/ND-CP (“Decree 10”) to resolve a number of existing land-related problems pending the expected promulgation of a new Land Law later this year. The changes under Decree 10, which will take effect on May 20, 2023, include the following: New Regulations on Land Use Right Bidding Decree 10 outlines the conditions for organizations and individuals to participate in the bidding process for land use rights, as well as the conditions that must be met for the land site to be eligible for bidding. Specifically, in addition to the conditions already stated in Article 58.3 of the Land Law 2013 and Articles 14.2 and 14.3 of Decree No. 43/2014/ND-CP, organizations seeking to participate in the land use rights bidding process must ensure that no more than one company with cross-ownership participates in the bidding. Furthermore, they must also submit a 20% deposit of the total value of the land site, which is the starting price for the bidding. After the announcement of the auction results, the down-payment and any interest earned will be converted into a security deposit to ensure the bidder’s financial obligations are met. If the winning bidder fails to pay the full amount for the land use rights, the security deposit will be forfeited. In addition, a land site put up for bidding must satisfy certain conditions, such as having a starting price of bidding determined by the state authority and having an approved 1/500 detailed plan for the land used for investment and construction of residential buildings. The auction must be conducted on a plot-by-plot basis. Certifying Ownership of Real Estate for Tourism Accommodation Ownership of buildings on commercial and service land that are used for tourism accommodation purposes (such as condotels or other types of resort real estate) can

A significant new procedural law for fines in Thailand results in the mass removal of certain types of fines for criminal penalties and alters procedures for certain administrative monetary penalties.   There are generally two types of fines imposed under Thai law: criminal fines and administrative fines. However, there will soon be a type of fine that exists outside of the criminal or administrative legal mechanisms: the phinai fine, which is neither a criminal penalty nor an administrative fine. Instead, a phinai fine—which must be paid to the state—is one assessed in lieu of criminal penalties for less-serious offenses. Perhaps the closest equivalent to a phinai fine would be a “civil” fine, but there is no official translation of Thailand’s first law dedicated to these fines, the Act on Phinai Fine Proceedings B.E. 2565 (2022) (ACFP), which was published in the Government Gazette on October 25, 2022. Before proceeding further to discuss the significance of the new law, a note should be made regarding the term phinai. As there has been no official translation of the ACFP, there is currently no official translation of phinai. Under the ACFP, “to seek a phinai fine” (or prap pen phinai) was determined to have the specific meaning of ordering a phinai penalty offender to pay a phinai fine. The meaning of the term as defined reflects a type of phinai penalty, which is neither a criminal penalty nor an administrative fine. In the future, there is a possibility that the official translation of the ACFP may use a different term. The passage of the ACFP provides Thailand with a special procedural law for all phinai fines, ultimately resulting in a significant change in the categorization and collection of fines and administrative monetary penalties. Other than two sections on administrative preparations that took

On April 1, 2023, Myanmar’s Directorate of Investment and Companies Administration (DICA) announced additional reporting requirements for newly registered companies. According to the announcement, newly established companies must submit the required information to DICA by email within two months of their registration and before submitting their first annual return (AR) to DICA through the Myanmar Companies Online (MyCO) system as required under the Myanmar Companies Law 2017 (MCL). The reporting requirements include: Proof that the bank account established in the company’s name has been credited with the paid-up capital shown in the MyCO system. Verification of individuals listed as directors of the company. For directors who are Myanmar citizens, this consists of confirmation from the relevant township police office that the director actually resides at the address stated in the national registration card and the application for company registration (Form A). For directors who are foreign nationals, the required verification is proof of compliance with the Registration of Foreigners Rules 1948 (such as Immigration Form C). Confirmation from the relevant township police office that the registered address of the company matches an actual location and that the company is planning to open an office. Verification of individuals and entities listed as members of the company. For individual registered members, the requirements are the same as for individual directors (see above). For legal entities that are registered members, the entity’s certificate of incorporation must be provided. Once a newly registered company submits this information by email, the registrar will review it manually. Companies that fail to submit the required information will not be able to submit their first AR documentation. If this happens, the DICA registrar will issue a notice, and the company will have 28 days to submit its AR and pay all outstanding fees and penalties, or face automatic suspension of the company registration in accordance

The director-general of Myanmar’s Intellectual Property Department (IPD) has written a newspaper article stating that the country’s trademark registration will come into full effect with the “grand opening” of the IPD on April 26, 2023. This announcement comes days after the IPD issued the Trademark Rules and other related notifications in conjunction with the Trademark Law coming into force. While an official notification confirming the date is still pending, the anticipated grand opening means that as of April 26, marks filed during the IPD’s current “soft opening” period—and for which all fees have been fully paid—will be officially accorded the first filing date, which is the date of the IPD’s grand opening. Accordingly, mark owners who submitted marks during the soft opening period need to pay the official filing fees before April 26 in order to secure the earliest possible filing date (i.e., April 26) under the Trademark Law’s new first-to-file system. Mark owners also need to submit a notarized Appointment of Representative (TM-2) form to the IPD to enable their trademark representative in Myanmar to carry out this step. Moreover, the trademark system coming into full effect with the IPD’s grand opening will enable mark owners to file registration applications for new marks—which has not been permitted during the soft opening. To expedite this process, these mark owners should now start preparing all necessary documents for filing their new trademark applications. For assistance ensuring that your existing mark secures the earliest possible filing date, or for assistance in processing new trademark applications, please contact Tilleke & Gibbins at [email protected].

As Myanmar’s long-awaited Trademark Law came into force on April 1, 2023, the government issued several pieces of implementing legislation, including the Trademark Rules. Together, this legislation gives shape to Myanmar’s new trademark system and paves the way for the eventual “grand opening” under the Trademark Law. The first piece of legislation, Notification 17/2023 of the Ministry of Commerce (MOC), set out the Trademark Rules. The rules contain detailed provisions on the registration and examination of marks, opposition to registration, priority claims, and criteria for well-known marks. The rules allow for substantive examination of trademark registration applications to begin. The second piece of legislation (MOC Notification 1/2023) established the Intellectual Property Agency (IP Agency). Made up of senior government figures, IP experts, and representatives of civil society, the IP Agency is responsible for implementing trademark policy and hearing administrative appeals against decisions by the trademark registrar. The IP Agency’s first notification set the official fees for requests and applications to the Intellectual Property Department (IPD), including a fee of MMK 150,000 (approx. USD 72) per class for filing a trademark application. Finally, the IPD issued two procedural announcements. Announcement No. 1/2023 confirmed that the second phase of the “soft opening” will commence on April 3, 2023. As explained in our previous update, during the second phase of the soft opening, mark owners who have already filed trademark applications with the IPD must pay the official filing fees. Announcement No. 2/2023 specified the ways in which these fees can be paid. Now that the Trademark Law has come into force and implementing legislation has been issued, mark owners should prepare to pay the necessary filing fees and submit their notarized Appointment of Representative (TM-2) forms to the IPD. We will continue to monitor developments related to the new trademark system. For more information on protecting intellectual property in

Most employers know that terminating employees for poor job performance is not easy. But it is actually legally possible—if employers have the right approach and take specific precautionary measures. However, failing to take these precautions can mean that an employer is either stuck with an incompetent employee or on the losing end of a lawsuit for unfair termination. This article will lay out some essential considerations for employers in Thailand regarding termination of employment for poor performance. First, understand that “poor work performance” is a lack of performance or ability, or an inability to work with other employees. It does not constitute a violation of work rules or regulations. In some cases, however, an employee’s failure to act in accordance with lawful instructions or commands of the employer, resulting in poor work performance, could also be considered a violation of work rules or regulations. This may be the case if the work rules or regulations clearly state that an employee must strictly comply with the employer’s instructions or commands. Second, an employer can, in fact, terminate an employee due to poor work performance. For example, this may be possible in the following scenarios: Records show that an employee’s work performance has fallen below the employer’s required standards, and the employee has not tried to improve his or her work performance for three consecutive years. In addition, it does not appear that the employer was biased when giving ratings or scores for the employee’s work performance. The job description of the employee includes coordination with employees in other departments, but the employee has not been able to do so. Therefore, the employee was reassigned to a new job function, but the employee still did not improve. This suggests that the employee has a lack of interpersonal skills and is not be able to work well