What are rights and obligations of parties to assessment services contracts in Viet Nam?

Assessment service is a commercial activity that helps ensure quality and actual conditions of goods meet the stringent market standards and requirements. In order to properly and accurately assess goods, it is necessary to have traders and assessors who satisfy the legal conditions. Traders providing assessment services often enter into assessment service contracts. Let’s find out with Lawyer X about this type of contract through the following situation: “Hello lawyer! My company is about to sign a contract for sale and purchase of goods with a garment company. To ensure the quality of imported goods, we intend to find a company specializing in providing assessment services to inspect the above garment shipments. So when entering into an assessment contract, what are rights and obligations of the parties? Looking forward to your consulting!”

Legal grounds

2005 Commercial law

What are sssessment services?

 Assessment services are commercial activities whereby traders perform necessary jobs to determine actual conditions of goods, results of the provision of services and other contents at the request of customers.

Assessment comprises one or a number of contents regarding the quantity, quality, packing, value of goods, origin of goods, losses, safety, hygienic and quarantine standards, results of the provision of services, method of providing services and other contents at the request of customers.

Only traders that satisfy all the conditions provided for by law and are granted business registration certificates for provision of commercial assessment services shall be allowed to provide assessment services and issue assessment certificates. Traders providing commercial assessment services must fully satisfy the following conditions:

– Being enterprises established according to the provisions of law;

– Having assessors who have all the qualifications specified in Article 259 of Commercial law;

– Being capable of carrying out procedures and methods for assessing goods or services under the provisions of law, the international standards or which are commonlly applied by countries in assessment of such goods or services.

Traders providing commercial assessment services shall be allowed to provide assessment services in domains of assessment only when they fully satisfy the conditions avobe

Criteria of assessors

An assessor must fully satisfy the following criteria:

– Possessing a university or college degree suitable to the requirements of the domain of assessment;

– Having a professional certificate for the assessment domain in cases where such professional certificate is required by law;

– Having worked for at least three years in the domain of assessment of goods or services.

Basing themselves on the criteria, directors of enterprises providing commercial assessment services shall recognize assessors and be responsible before law for their decisions.

*Assessment certificates

– Assessment certificates are documents determining the actual conditions of goods and services according to the assessment contents required by customers.

– Assessment certificates must be signed by competent representatives of enterprises providing commercial assessment services, have signatures and full names of assessors, and be affixed with professional seals already registered with competent agencies.

– Assessment certificates shall only be valid for those contents already assessed.

– Traders providing assessment services shall be responsible for accuracy of results and conclusions in assessment certificates.

*Legal validity of assessment certificates with respect to assessment requesters

Assessment certificates shall be legally binding on assessment requesters in cases where they cannot prove that assessment results are non-objective, untruthful or obtained with technical or professional errors.

*Legal validity of assessment certificates with respect to contractual parties

– Where contracting parties agree on the use of an assessment certificate issued by a particular trader providing assessment services, such assessment certificate shall be legally binding on all the parties if they cannot prove that the assessment results are non-objective, untruthful or obtained with technical or professional errors.

– Where contractual parties do not agree on the use of an assessment certificate issued by a particular trader providing assessment services, such assessment certificate shall only be binding on the party requesting the assessment according to Article 261 of Commercial law. The other contractual party shall have the right to request re-assessment.

–  If a re-assessment certificate is inconsistent with the original assessment certificate:

+  Where the trader providing assessment services and issuing the original assessment certificate accepts the results stated in the re-assessment certificate, such results shall be legally binding on all the parties;

+ Where the trader providing assessment services and issuing the original assessment certificate does not accept the results stated in the re-assessment certificate, the parties shall agree to select another trader providing assessment services to perform the reassessment for the second time. The results of the second-time re-assessment shall be legally binding on all the parties.

Rights and obligations of parties to assessment services contracts

 *Rights and obligations of traders providing assessment services

– Traders providing assessment services shall have the following rights:

+ To request customers to supply in a sufficient, accurate and timely manner necessary documents for performance of assessment services;

+ To receive assessment service charges and other reasonable expenses.

– Traders providing assessment services shall have the following obligations:

+ To observe the standards and other relevant provisions of law on assessment services;

+ To perform the assessment in an honest, objective, independent, timely manner and according to the assessment procedures and methods;

+ To issue assessment certificates;

+ To pay violation fines and/or damages according to the provisions of Article 266 of Commercial law.

Rights of customers

 Unless otherwise agreed, customers shall have the following rights:

– To request traders providing assessment services to perform the assessment according to the agreed contents;

– To request re-assessment if they have sound reasons to believe that traders providing assessment services fail to properly satisfy their requirements or perform the assessment in an untruthful and non-objective manner or with technical and professional errors;

– To request payment of fines or damages according to the provisions of Article 266 of Commercial law.

*Obligations of customers

 Unless otherwise agreed, customers shall have the following obligations:

– To supply in a sufficient, accurate and timely manner necessary documents to traders providing assessment services when so requested;

– To pay assessment service charges and other reasonable expenses.

Fines and damages in case of incorrect assessment results

– Where traders providing assessment services issue assessment certificates showing incorrect results caused by their unintentional faults, they must pay fines therefor to customers. The fine level shall be agreed upon by the parties but must not exceed ten times the assessment service charge.

– Where traders providing assessment services issue assessment certificates showing incorrect results caused by their intentional faults, they must pay compensations for damage caused to customers that directly request the assessment.

– Customers are obliged to prove that assessment results are incorrect and traders providing assessment services are at fault.

*Authorized assessment

Where foreign traders providing assessment services are hired to perform assessment while having no license to operate in Vietnam, such traders may authorize traders providing assessment services which have been licensed to operate in Vietnam to provide assessment services but must still be held responsible for the assessment results.

Services of Lawyer X

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