In order to promote technology capital contribution activities in Vietnam, and at the same time minimize risks for parties, it is necessary to improve both the legal framework and the enforcement mechanism. Here are some of the recommendations of HM&P Law Firm ("HM&P") for this activity:
1. Completing the law on capital contribution with intellectual property/technology:
The National Assembly and the Government should consider comprehensively amending and supplementing the Law on Enterprises, the Law on Technology Transfer, and the Law on IP in order to fill the gaps as well as the current overlaps in the legal framework regulating this activity. Specifically, it is necessary to promulgate legal documents that clearly recognize intellectual property (trademarks, patents, software, etc.) as a legal intangible asset of enterprises, and at the same time guide the method of determining the value of these assets when contributing capital and how to record them on financial statements. This will be an important legal basis for legalizing capital contribution, joint ventures, franchising, etc. with the value of technology and intellectual property in Vietnam. We notice that in fact, the Government is submitting draft amendments to the Law on Technology Transfer and the IP Law for public comment. This is a necessary and timely step to meet the needs of technological development, especially new and advanced technologies that are increasingly developing strongly in Vietnam as well as in the world in most fields. In addition to developing and regulating relevant laws. The Government needs to develop detailed guidelines on procedures for contributing capital using technology. Relevant ministries and sectors (S&T, Justice, Finance) should coordinate to issue circulars or guidance manuals for enterprises. The content may include: the process of steps from valuation, contract making, contract registration, transfer of ownership, etc.; list of documents to be prepared; timelines to be complied with; form of record of delivery and receipt of intangible assets; guiding the handling of specific situations (such as assets contributed as capital that expire the protection term or capital contribution with the right to use for a definite term). Uniform guidance will help businesses save time, costs and avoid violations due to lack of understanding of procedures.
2. Improving technology pricing capacity:
The State should encourage the development of intermediary organizations specializing in the valuation of technology and intellectual property. It is possible to establish a mechanism for licensing the practice of technology price appraisal or certification of experts in this field. At the same time, building a national database on technology prices and intellectual property (through collecting data from technology transfer transactions, franchising, patent trading, etc.). This provides a reliable reference for valuation boards, reducing the difference between valuations. The Ministry of Science and Technology may coordinate with the Ministry of Finance in promulgating technology valuation standards based on international practices, guiding the application of appropriate valuation methods (costs, markets, incomes) for each type of technological asset. It is also necessary to clearly stipulate the responsibilities and sanctions for the price appraisal organization if the wrong valuation causes damage, in order to increase professional responsibility and the reliability of the valuation results. The development of professional and reputable technology valuation organizations is very necessary in the current context. In particular, there is investment as well as encouragement of technology valuation organizations to develop, expand and approach technology pricing standards in the world. Attracting foreign technology valuation experts/organizations to participate in this market is also an effective way to improve the quality of technology valuation activities in the Vietnamese market in the short term.
3. Synchronization of regulations on transfer of ownership:
The phenomenon of "warping" between the Law on Enterprises and specialized laws needs to be handled. For example, the Law on Enterprises should supplement regulations on the handling of contributed capital in intellectual property upon the expiration of the protection term – possibly in the direction of: the capital contributor and the company must clearly agree from the beginning on the extension of the protection term (if possible) or the plan to adjust capital when the asset expires the protection value. In case of capital contribution with the right to use for a definite term, it is required to clearly state the time limit in the charter and the corresponding mechanism for reducing charter capital at the end. In addition, it is recommended to amend the regulation on the 90-day capital contribution period for technology assets: it can be flexibly extended if the procedures for registration of transfer/registration of ownership are being handled legally. This helps to avoid the situation that businesses are forced to reduce capital due to unexpectedly prolonged administrative procedures. In fact, this is also one of the major obstacles of businesses in the process of contributing capital to businesses with technology. We propose to amend the Law on Enterprises with specific provisions on the time limit for capital contribution by technology, which can extend the time limit for capital contribution in case of capital contribution by technology to at least 180 days from the date of issuance of the enterprise registration certificate or a longer period depending on the type of technology contributing capital to the enterprise.
4. Simplification of administrative procedures:
It is necessary to move towards an interconnected one-stop mechanism for capital contribution by technology. For example, when an enterprise submits a dossier of registration for capital contribution by technology at the Department of Finance, this agency can transfer information to the Ministry of Science and Technology to handle the registration of technology contracts and the transfer of IP rights in parallel. Sharing data between agencies shortens time and reduces duplicate paperwork. In addition, the application of digital transformation in the registration and management of technology transactions: building a portal for businesses to submit online documents, look up the processing status. When the procedure is open and transparent, investors will be more bold in using intellectual property to contribute capital.
5. Support and encouragement policies:
The state can consider tax incentives or financial support to encourage capital contributions with technology, especially in the field of creative start-ups. For example, consider exemption/reduction of CIT for the profits generated from technology contributed to capital in the early years, or exemption from registration fees and registration fees when transferring the name of intellectual property contributed as capital. The National Technology Innovation Fund, startup support programs can dedicate free legal advice resources to businesses on technology capital contribution procedures. In addition, organizing technology exchanges, connecting scientists and patent holders with businesses in need of capital, thereby promoting capital contribution with technology as an effective capital mobilization channel. Technology incubators can experiment with flexible capital contribution models, setting a precedent to improve policies.
6. Raising awareness and training:
Finally, it is indispensable to propagate and disseminate knowledge to the business community and investors. Management agencies should regularly organize seminars and training on regulations on capital contribution with intellectual property; issuing manuals and manuals. Universities and research institutes also need to equip students and researchers with knowledge about technology commercialization and intellectual property valuation – helping them be ready to participate in start-ups with their own technology. On the business side, they should actively consult lawyers and experts right from the valuation stage, drafting capital contribution contracts to ensure compliance with the law and protect their interests. In general, capital contribution by technology is an inevitable trend in the digital economy and international integration. The current obstacles are only initial and need to be removed with a legal ecosystem and synchronous support. When the legal corridor is open and transparent, businesses will take advantage of the great intellectual resources in society to develop production and business, while scientists, entrepreneurs, and technology owners can also easily turn technology into capital, promoting innovation and sustainable economic growth for Vietnam in the near future.
In general, capital contribution by technology is an inevitable trend in the digital economy and international integration. The current obstacles are only initial and need to be removed with a legal ecosystem and synchronous support. When the legal corridor is open and transparent, businesses will take advantage of the great intellectual resources in society to develop production and business, while scientists, entrepreneurs, and technology owners can also easily turn technology into capital, promoting innovation and sustainable economic growth for Vietnam in the near future.
