Subject introduction to law and legal, ethical issues in business

An LLC allows for indirect taxation, which means that business income or losses are recorded and taxed on the owner's personal tax return.. When parties have agreed to VIAC arbitration i

Lecturers: PhD Ha Cong Anh Bao

Hanoi — 2022

Question 1:

According to Article 134 of the 2015 Criminal Code!, amended and supplemented in

2017, provides that the Deliberate infliction of bodily harm upon another person, depending on the severity will be punished at different

b

Physical disability < 11%: If Henry who deliberately inflicts bodily harm upon Denny and causes less than 11%, Henry shall get administrative sanction according to Clause 3, Article 5 of Decree 167/2013/ND-CP? on Violation of regulations on public order

Physical disability from 11% and above: If Henry deliberately inflicts bodily harm upon Denny and causes 11% - 33% physical disability, Henry shall be

deliberately inflicting bodily harm that has one of the conditions specified from points a to k, Clause 1 of Article 134, even if the physical disability is less than 11%, he may still be subject to criminal prosecution

Denny suing Henry for indemnity is a civil legal action Based on the extent

of Denny's physical disability, the court will decide the extent to which Henry

must compensate Denny

Remedies Based on the consequences caused by violations, based on the fault of the subject, the authority brings into account the legal liability of the subject who violates the law Act of Henry hitting Denny: Based on the level of violation caused, Henry must be criminally responsible for the guilt of assaulting others, depending on the danger and extent of the consequences of the act caused However, Henry must be a person with criminal liability and reach the age of criminal responsibility in accordance with the law

! Assembly, N., 2015 2015 Criminal Code of Vietnam

? Government, T., 2013 Decree No 167/2013/ND-CP sanction of administrative violation in social security order safety domestic violence

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« Act of Denny suing for Henry's indemnity: Based on the extent of Denny's physical disability, the court will decide to force Henry to perform such as apology, compensation, fine for violation, etc

Question 2:

hidden in his shirt to receive instructions violates the provisions of article 22 "to bring

any concealed notes, sketches, books or aids relevant to the examination into an

examination room”

room Thirty minutes later, she realized it and gave them to the examiner, so Chrisia didn't intentionally bring the documents into the exam room as well as didn't use the notes Chrisia proactively handed them to the examiner In this case, if applying the literal rule, the result will be unreasonable, so the golden rule should be applied to declare in favor of Chrisia

relevant to the examination into an examination room" Accordingly, Loy's behavior was caught while reading notes Maybe Loy thought he read the notes created by

others, but he did not bring the forbidden documents into the exam room, so he was

not guilty However, the mischief rule can be applied in this situation to explain and assume that the intention of the legislator is to remedy the cheating from exam activities, therefore, Loy is guilty

Question 3:

The legal event here is that Tanya (15 years old) signed a contract with Ramona, in the contract there are terms agreed to be implemented by both parties If the contract does not have a clause on fines for violations in case Tanya drops out of school or quits performing, she cannot sue for compensation because this is essentially an act

of paying for school

In another circumstance, if the contract has a clause on fines for violations in case

Tanya drops out of school or quits performing, Ramona can sue for compensation and she is likely to succeed in your jurisdiction

Question 4:

In my opinion, both Danesh and Carlos may be right

Danesh is right because if Danesh can prove that there is detriment to Danesh as substantially to deprive him or her of what he or she is entitled to expect, this is a case

of fundamental breach, Danesh has the right to avoid or make a demand for specific performance of Carlos

Carlos is right if he can prove that according to Article 79 of the CISG (about Force Majeure)’, Carlos is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences

In this case, if Carlos can prove that the airline’s problem is an impediment beyond

his control, this is a case of Force Majeure and the contract is frustrated, he can ask

for the negotiation of a new contract with the buyer

However, in this case, the final decision depends on the Court’s decision If the Court decides that this is a force majeure case, Carlos shall not be liable to non-conforming

of the contract But if this is a fundamental breach case, Carlos is held responsible for

the loss of Danesh

Question 5:

There is no reason in law or equity to treat an LLC differently from a corporation when deciding whether to disregard the legal entity We conclude that under the Wyoming Limited Liability Company Act, the equitable remedy of piercing the veil

is an accessible remedy The case was remanded to the lower court to assess whether this condition warranted piercing the veil

3 Article 79, 2020 Force Majeure under CISG

The certified question contains an intriguing internal contradiction It begins, "In the absence of fraud,” implying that a court may breach an LLC's veil in the event of

fraud As a result, the certified question implies that, when fraud is discovered, the

courts can overlook the LLC corporation, notwithstanding the statutory structure that ostensibly forbids such a conclusion Either the courts retain the equitable authority

to take such action, or they do not Nothing in the legislation implies that the legislature gave this issue such considerable thought and outlined the exact situations under which the courts can engage in this sector When the LLC commits fraud, individual LLC members may be held personally accountable for damages to innocent third parties if the presumption is valid Individual members are free from accountability where the LLC has caused damage and has insufficient capitalization, commingled funds, misappropriated assets, or exploited the LLC as a mere shell Legislative silence cannot be used to justify such an irrational outcome

Thus, even in the absence of deception, courts have the authority to hold corporate shareholders liable To assess whether piercing the veil is appropriate given the facts provided in this case, the district court must conduct a fact-intensive inquiry and apply its equitable powers

Question 6:

While LLCs and Corporations, two terms are often discussed side by side, they actually refer to different aspects of a business An LLC is a type of business entity, while an S corporation is a tax classification It allows the Internal Revenue Service (IRS) to know that the business should be taxed as a partnership

LLC Taxation and Fees

Limited liability companies are taxed differently than other corporations An LLC allows for pass-through taxation, which is when business income or losses flow through the business and are instead recorded on the owner's personal tax return As

a result, profits are taxed at the owner's personal tax rate A single member LLC is generally taxed as a sole proprietorship Any profits, losses or deductions, which are business expenses that reduce taxable income, are all reported on the owner's personal

tax return An LLC with multiple owners would be taxed as a partnership, which means that each owner would report profits and losses on their personal tax return LLCs avoid the double taxation that C-corporations face because they pass through all the income from the business to the individual owners’ tax returns A C corporation (or C-corp) is a legal structure for a corporation in which the owners, or shareholders, are taxed separately from the entity C-corporations, the most common type of corporation, are also subject to corporate income tax The taxation of corporate profits

is done at both the corporate and individual level, creating a double taxation situation The cost of forming an LLC can vary from state to state, but expect to pay close to

$500, which could include the following:

statements and file taxes Corporations Taxation and Expenses

Corporations may elect to pass through corporate income, losses, deductions and credits to their shareholders for federal tax purposes Corporation shareholders would report the income and loss pass-throughs on their personal tax returns As a result, the assessed tax would be calculated based on their personal income tax rates This pass-through feature helps corporations avoid double taxation, which means that corporate income is taxed at the corporate level and again when dividend income paid

to shareholders is taxed on their personal tax returns

The fees to form a corporation can vary widely, depending on the complexity of the corporation and the state in which it is established, but some of the fees may include:

depending on the state

dollars to a few thousand dollars if the corporation's structure is more complex

$800 per year

« Accounting costs for financial reporting and tax services must be considered

In conclusion, A limited liability company is easier to form and has fewer regulatory requirements than other companies LLCs offer personal liability protection, which means that creditors cannot go after the owner's personal assets An LLC allows for

indirect taxation, which means that business income or losses are recorded and taxed

on the owner's personal tax return LLCs are beneficial for sole proprietorships and partnerships An LLC with multiple owners would be taxed as a partnership, which means each owner would report profits and losses on their personal tax return The structure of a corporation also protects the personal assets of business owners from corporate liability and passes through income, usually in the form of dividends,

to avoid double taxation of corporations and individuals Corporations help businesses establish their credibility as a corporation since they exercise more oversight Corporation must have a board of directors that oversees the management

of the business However, corporations can have 100 shareholders and pay them dividends or cash payments from the company's profits

Question 7:

a Vienna International Arbitral Centre (VIAC)

The Vienna International Arbitral Center (the “VIAC’) is a leading arbitration institution in Europe, and namely in the region of Central and Eastern Europe The VIAC administers “domestic and international arbitrations as well as proceedings pursuant to other alternative dispute resolution methods” agreed by the parties, such

as mediation proceedings or investment arbitration When parties have agreed to VIAC arbitration in order to resolve their dispute, the arbitration will be conducted in conformity with the VIAC Arbitration Rules

The Vienna International Arbitral Centre's (VIAC) standard recommended arbitration clauses as follows:

Secretariat or by an Austrian Regional Economic Chamber*

4 Article 7.1, VIAC Rules

e Default deadline for response: 30 days from receipt of the Statement of Claim

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arbitrator within 30 days after receiving the Secretary General’s request 7

arbitrator; if a party fails to do so within 30 days after receiving the Secretary General’s request, Board appoints arbitrator®

of the arbitration agreements is the same Board shall consider compatibility of the arbitration agreements and the respective stage of the arbitral proceedings

tribunal has power to order any interim or conservatory measure or amend, suspend or revoke any such measure!”

> Article 8.1, VIAC Rules

® Article 17.2, VIAC Rules

7 Article 17.3, VIAC Rules

8 Article 17.4, VIAC Rules

° Article 20.2, VIAC Rules

10 Article 14, VIAC Rules

1! Article 15, VIAC Rules

? Article 33.1, VIAC Rules

Confidentiality: Arbitrators have the duty to keep all information acquired in

the course of their duties confidential

[Art 2.4 confidentiality of the Board]

[Art 4.4 confidentiality of the Secretariat]

Time limit for issuing award: No later than three months after the last hearing

or filing of the last authorized submission concerning matters to be decided in

an award, whatever is the later!+

procedures no later than the submission of the Answer to the Statement of

Claim

Availability of emergency arbitrator: Not available Cost allocation: Tribunal has discretion, unless otherwise agreed by parties, and will consider relevant factors, including conduct of parties!®

Languages spoken at the Secretariat other than English: Italian, French, Polish,

Spanish, Russian, Czech and Slovak (case administration in German and

English)

b Singapore International Arbitration Centre (SIAC)

Singapore International Arbitration Centre (SIAC) is a not-for-profit international arbitration organization based in Singapore, which administers arbitrations under its

own rules of arbitration and the UNCITRAL Arbitration Rules

Singapore International Arbitration Centre (SIAC) standard recommended arbitration

clauses as follows:

Deemed Start of arbitration: Day request is delivered to Registrar !” Default deadline for response: 14 days from receipt of notice of arbitration by

respondent !®

Default number of arbitrators: Sole arbitrator!”

3 Article 16.2, VIAC Rules

4 Article 32.2, VIAC Rules

15 Article 45, VIAC Rules

16 Article 38.2, VIAC Rules

7 Rule 3.3, 3.1, SLAC Rules

18 Rule 4.1, SIAC Rules

!9 Rule 9.1, SLAC Rules

Default appointment of a sole arbitrator: Joint appointment within 21 days from receipt of request by Registrar, otherwise by President of SIAC”

arbitrator”!; if within 14 days of first nomination a party fails to nominate its arbitrator, President of SIAC will appoint on its behalf, chair appointed by President of SIAC

Default restrictions on arbitrators where parties with different nationalities: None

Time limit for challenging arbitrator: 14 days from appointment or 14 days from becoming aware of relevant circumstances”

Joinder: On application by a party or third-party either before or after formation of tribunal if third party is prima facie party to arbitration agreement

or all parties consent ~?

Consolidation: On request by party SIAC Court or tribunal can consolidate

where

* parties agree;

* claims under same arbitration agreement; or

* arbitration agreements are compatible and disputes arise out of same legal relationship, principal and ancillary contract or same transaction or series of transactions

Tribunal's discretion to order Intertm Measures: On request by any party the tribunal has power to order or award any injunction or any other interim relief

it deems appropriate; tribunal may ask for security from requesting party” Confidentiality: All matters relating to proceedings and award, disclosure

permitted in limited circumstances”

20 Rule 10, SIAC Rules

21 Rule 11, SIAC Rules

» Rule 15.1, SIAC Rules

23 Rule 7, SIAC Rules

22 Rule 8, SIAC Rules

?Š Rule 30.1, SLAC Rules

*6 Rule 39, SIAC Rules

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e Time limit for issuing award: Tribunal to give draft award to Registrar within

45 days from close of proceedings; award to be delivered as soon as practicable afterwards following Registrar comments?’

prior to the constitution of tribunal and where 78

* amount in dispute below S$ 6,000,000;

* parties agree; or

* case of exceptional urgency

otherwise agreed by parties; tribunal has full discretion regarding the parties’

legal costs

Indonesia, Chinese, French, Hindi, Korean, Lithuanian, Malay, Russian and

Tagalog

c The London Court of International Arbitration (LCIA)

The London Court of International Arbitration (LCIA) is one of the world’s leading international institutions for commercial dispute resolution The LCIA has access to the most eminent and experienced arbitrators, mediators and experts from many jurisdictions, and with the widest range of expertise The LCIA's dispute resolution

requirements

The London Court of International Arbitration (LCIA) standard recommended arbitration clauses as follows:

delivered (if hard copy) or transmitted (if soft copy)*?

77 Rule 32.3, SIAC Rules

28 Rule 5, SIAC Rules

») Rule 35.1, 37, SLAC Rules

20 Articles 1.4, 4.4, LCIA Rules

3! Articles 2.1, LCLA Rules

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¢ Default number of arbitrators: Sole arbitrator ??

or, if no Response, 28 days from the start of arbitration ?°

Response or, if no Response, 28 days from the start of arbitration *4

Sole arbitrator/chair not of nationality of any party *°

days from becoming aware of relevant circumstances *°

required?”

22.7 By order of the tribunal upon application by any party and subject to

approval by LCIA where:

* all parties consent; or

¢ LCIA arbitrations commenced under same/compatible arbitration agreement between same parties; and no tribunal appointed or composed of same arbitrators

22.8 LCIA Court can consolidate where *”

* all parties consent; or

* LCIA arbitrations commenced under same/compatible arbitration agreement

between same parties; and no tribunal appointed

tribunal has power to order: *°

* respondent to provide security for all or part of the amount in dispute

2 Articles 5.8, LCIA Rules

33 Articles 5.6, LCIA Rules

34 Articles 5.8, LCIA Rules

3 Articles 6.1, LCIA Rules

36 Articles 10.3, LCIA Rules

37 Articles 22.1, LCIA Rules

38 Articles 22.7, LCIA Rules

3° Articles 22.8, LCIA Rules

4° Articles 25.1, LCIA Rules

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