To improve its patent application processing capacity, the Intellectual Property Office of Vietnam (IP Office), with the support of the Japan International Cooperation Agency (JICA), is continuing to develop a draft amendment to the patent application examination guidelines for inventions related to computer programs. After issuing Annex I to the patent application examination guidelines in 2021, which covered subject-matters related to computer programs that are protected as inventions, the IP Office’s Patent Examination Center, with the support of experts from the JICA, has now developed a draft of Annex II. This draft provides guidance on examination related to a sufficient disclosure of the substance of claimed subject-matters and an assessment of the protection criteria (novelty and inventive step) of subject-matters related to computer programs, along with illustrative examples. In addition, the draft introduces the concepts of “sub-combination inventions” and “mixed-type inventions”, an assessment of the clarity of sub-combination inventions, and the assessment of novelty and inventive step of mixed-type inventions. To evaluate the amendments in the draft, in conformity with the legal regulations and the examination practice, the Patent Examination Center organized a discussion of the draft on February 4, 2023, with the contribution of opinions and comments from IP representatives, organizations, schools, institutes, and individuals. The Patent Examination Center announced that it wishes to receive further constructive opinions from interested parties to improve the amendments of the guidelines. In the context that inventions related to computer programs are closely related to new technologies such as artificial intelligence (AI), and noting the many difficulties arising in the examination process, we hope that the amendments to the guidelines, specifically as outlined in the draft of Annex II, will soon be finalized and officially released. This annex will certainly facilitate the examination of inventions related to computer programs, as well as be a useful reference

Thailand’s Office of the Prime Minister has issued a new regulation titled Giving or Receiving Gifts of State Officials B.E. 2565 (2022). This regulation, which took effect on January 13, 2023, repeals the previous 2001 version and updates certain provisions to be in sync with Thailand’s primary anticorruption law, the Organic Act on Anti-Corruption B.E. 2561 (2018). The regulation prohibits state officials’ family members from receiving gifts from people who are dealing with the officials’ respective agencies. It also prohibits state officials from giving gifts to their supervisors and their supervisors’ family members. An exception, carried over from the previous version of the regulation, is provided for gifts on limited “customary occasions” valued at THB 3,000 or less. There are some notable revisions in the definitions of the new regulation. The term “gift” is now clearly defined to include “training” or “seminars.” In addition, the term “family members” now includes spouses living together “as husband and wife,” even if not legally married. For example, the common-law spouse of an officer considering a license application is not allowed to receive a gift from or attend an overseas seminar organized by the applicant. The regulation also provides: Guidelines for state officials to self-report in case of violation by a family member; Instructions on how to deal with the gifts received in violation; and Disciplinary actions for violation. Importantly, the regulation continues to prohibit the receipt of gifts by state officials’ family members but does not expressly criminalize the giving of gifts by private parties. However, all who deal with government officials should take note of the updated regulation to avoid creating a situation that might violate the rules.

On January 16, 2023, Thailand’s Securities and Exchange Commission (SEC) prescribed a set of security measures that digital asset business operators must implement if they provide custody of digital assets for their customers. The new security measures are prescribed in two notifications from the SEC and its office on digital asset wallet management systems and cryptographic key management systems, with the aim of safeguarding digital assets in custody against loss, fraud, and cybertheft. The notifications took immediate effect. The new security measures and the management systems are summarized below. Policy and guidelines for managing systems related to digital asset custody Digital asset business operators must have a written risk management policy for all systems relating to digital asset custody, approved by their board of directors and made accessible to all employees. The policy must be reviewed or revised at least once annually, or promptly if any potential risks are identified. Specific procedures must be implemented, such as establishment of a compliance team and internal controls. Management of systems for digital asset wallets and cryptographic keys Digital asset business operators must have policies and procedures for managing all systems relating to digital asset custody. This includes properly designing, developing, and managing digital asset wallets in a safe and secure manner. The same requirement on policies and procedures applies to cryptographic key management as well. Management of incidents that may affect systems related to digital asset custody Digital asset business operators must have measures in place to manage incidents that may impact systems related to digital asset custody. The measures include designating a person responsible for incident management, testing and reviewing the incident management policy annually, reporting any incidents affecting digital asset custody to the designated responsible person and the SEC immediately, and conducting a digital forensic investigation with an independent specialist, if necessary. If an incident affects the

Vietnam’s Ministry of Finance is drafting a circular on determining the origin of imported and exported goods. This circular, a draft version of which has been released for public comment (“Draft Circular”), consolidates prevailing regulations and guidelines on determining the origin of imported and exported goods that are stipulated in the following legal documents, which the Draft Circular would replace when it comes into effect: Circular No. 38/2018/TT-BTC dated April 20, 2018, of the Ministry of Finance regulating the determination of origin of imported and exported goods, as amended by Circular No. 62/2019/TT-BTC dated September 5, 2019, of the Ministry of Finance; Circular No. 47/2020/TT-BTC dated May 27, 2020, regulating the time to submit documents proving the origin of goods and form of the documents proving the origin of imported goods applied during the Covid-19 pandemic; and Circular No. 07/2021/TT-BTC dated January 25, 2021, regulating the time to submit documents proving the origin of imported goods under the EU-Vietnam Free Trade Agreement (EVFTA). Generally speaking, the Draft Circular does not increase the administrative procedures for importers and exporters, but rather seeks to codify the recent practices implemented by the customs authorities. The Draft Circular focuses on providing comprehensive guidance for importing/exporting companies when carrying out administrative procedures to certify the origins of imported and exported goods to be in line with current trade practices and international commitments under new-generation free trade agreements. In particular, the Draft Circular supplements guidelines on declaring origins and submitting Certificates of Origin (C/Os) of imported goods under the EVFTA and the Regional Comprehensive Economic Partnership Agreement (RCEP). The Draft Circular also provides some new guidelines to facilitate exports (and imports) and overcome some obstacles and issues when implementing the prevailing regulations. For example, the submission of C/Os online, which was only applicable during the Covid-19 period, would still be

Government Approves Legislative Dossier On February 7, 2023, the Vietnamese government issued Resolution No. 13/NQ-CP (“Resolution 13”) to approve the latest version of the draft Personal Data Protection Decree (“Draft PDPD”)—a draft which has not yet been made public. Similar to Resolution No. 27/NQ-CP issued in March 2022 approving the previous version of the Draft PDPD (“Resolution 27”), Resolution 13 stipulates the different cases where data subjects’ consent is exempted for processing personal data. Most of these lawful bases are similar to those under Resolution 27—except for the fourth case, which is brand new—with some changes for better clarity. According to Article 1 of Resolution 13, personal data can be processed without consent in the following five cases: (1) The processing is to protect the life and health of the data subject or others in an emergency situation. Data Controllers, Data Processors, Parties Controlling and Processing Personal Data, and Third Parties are responsible for proving this case; Remarks: Vietnamese law, including the prior published version of the Draft PDPD, has never used the terms “data controller”, “data processor,” and “parties controlling and processing personal data.” The inclusion of these terms suggests that the latest version of the Draft PDPD has adopted the GDPR-like concepts of “data controller” and “data processor.” However, until the latest version of the Draft PDPD can be assessed, it is uncertain how these concepts are defined and whether they are fully in line with GDPR definitions. (2) The disclosure of personal data is in accordance with the law; (3) The processing of data is performed by competent state agencies in the event of a state of emergency related to national defense, national security, social order and safety, major disaster, or dangerous epidemic; when there is a threat to security and national defense but not to the extent that a state of

Thailand has a robust legal framework for competition, with laws and regulations in place to prevent anticompetitive conduct and market concentration and to promote fair competition. However, as the business environment in the country continues to evolve, it is important for companies operating in Thailand to stay informed about the latest developments in competition laws and regulations. Generally, Thailand’s competition regime is based on the Trade Competition Act B.E. 2560 (2017) (the TCA) and its implementing regulations, except for certain industries which are governed by sector-specific competition regulations. The TCA is designed to promote free and fair competition by suppressing anticompetitive behaviors. In this article, we will examine what businesses can expect in the coming year, and what they need to be aware of in order to stay compliant. A Maturing Regulatory Structure The Trade Competition Commission of Thailand (TCCT) is the agency responsible for enforcing competition laws and regulations in Thailand. The TCCT has the authority to oversee the market structure, act to maintain competitiveness in various industries, investigate misconduct, and take action against companies that engage in anticompetitive practices, such as abuse of market dominance, cartels, and unfair trade practices. It also has discretionary power to consider applications for a merger of two or more businesses that may cause monopoly or market dominance. While the TCA and the TCCT had limited success in the decades after the original TCA’s enactment in 1999, a new TCA in 2017 made several significant changes to the previous version of the law. The 2017 TCA guarantees the independence of the TCCT from political and business interventions. It also introduces administrative penalties for less-serious offenses, including non-hardcore cartels, unfair trade practices, and neglect of merger filing duties. Since then, the TCCT has been more active in its issuance of subordinate regulations to optimize the functionality of TCA provisions.

Phuong Thi Minh Tran, an associate in Tilleke & Gibbins’ office Ho Chi Minh City, contributed the Vietnam chapter of Foreign Investment Review 2023, a recently published global guide to the legal and regulatory environment for foreign investment in 29 jurisdictions worldwide. Published and distributed by Getting the Deal Through (GTDT), the guide discusses law and policy on oversight of foreign investment, regulatory frameworks, procedural requirements, and other important stipulations for foreign investors. The Vietnam chapter covers the following topics: Law and Policy: Government policies and practices, main laws and their scope of application (including details on investment promotional measures), definitions, rules for state-owned enterprises and sovereign wealth funds, relevant authorities and oversight, and national interest provisions. Procedure: Jurisdictional thresholds, national interest clearance, securing approval, the review process for competition clearance and associated penalties, involvement of authorities, facilitation of clearance, and post-closing regulatory powers. Substantive assessment: Substantive tests for clearance, authorities’ consultation with other countries and other relevant parties, transactional prohibitions and objections, mitigating arrangements and challenges to a decision, and protection of confidential information. Recent cases, updates, and trends: Relevant recent case law, key recent and ongoing developments. A PDF of the Vietnam chapter can be accessed through the button below. Tilleke & Gibbins also contributed the Cambodia, Laos, and Myanmar chapters to Foreign Investment Review 2023. To browse all 29 jurisdictions covered by the guide, please visit the Getting the Deal Through website.

Nwe Oo, a senior associate in Tilleke & Gibbins’ office in Yangon, contributed an updated Myanmar chapter to the recently published Foreign Investment Review 2023, a global guide to the legal and regulatory environment for foreign investment in 29 jurisdictions worldwide. Published and distributed by Lexology Getting the Deal Through (GTDT), the guide discusses law and policy on oversight of foreign investment, regulatory frameworks, procedural requirements, and other important concerns for foreign investors. The Myanmar chapter covers the following topics: Law and Policy: Government policies and practices, main laws and their scope of application (including details on investment promotional measures), definitions, rules for state-owned enterprises and sovereign wealth funds, relevant authorities and oversight, and national interest provisions. Procedure: Jurisdictional thresholds, national interest clearance, securing approval, the review process for competition clearance and associated penalties, involvement of authorities, facilitation of clearance, and post-closing regulatory powers. Substantive assessment: Substantive tests for clearance, authorities’ consultation with other countries and other relevant parties, transactional prohibitions and objections, mitigating arrangements and challenges to a decision, and protection of confidential information. Recent cases, updates, and trends: Relevant recent case law, key recent and ongoing developments. A PDF of the Myanmar chapter can be downloaded through the button below. Tilleke & Gibbins also contributed the Cambodia, Laos, and Vietnam chapters to Foreign Investment Review 2023. To browse the full guide covering all 29 jurisdictions, please visit the Getting the Deal Through website.