Nghị định 72/2006/NĐ-CP hướng dẫn Luật Thương mại về VPĐD của thương nhân nước ngoài tại VN

DECREE

DETAILING THE TRADE LAW’S REGULATIONS ON REPRESENTATIVE OFFICES, BRANCHES OF FOREIGN BUSINESSES IN VIETNAM

THE GOVERNMENT

Pursuant to the Government Organization Law dated December 2, 2001;

Pursuant to the Commercial Law dated June 14, 2005;

Upon on the Minister of Trade’s proposal,

HEREBY DECREES:

Chapter I:

GENERAL REGULATIONS

Article 1: Scope of effect

1. The Decree details implementation of the Commercial Law’s regulations on establishment, operation, interests and obligations of representative offices of foreign businesses in Vietnam; and Branches of foreign businesses, operating in goods purchasing and carring out other activities directly related to goods purchasing.

2. Representative offices and branches of foreign-invested businesses established in Vietnam are not under scope of effect of the Decree.

Article 2: Rights for establishment of representative offices, branches of foreign businesses in Vietnam.

1. Foreign businesses can establish their representative offices in Vietnam (hereinafter “Representative offices”) in accordance with Articles 16, 17, 18 and 22 of the Commercial Law and the regulations as specified in the Decree.

2. Foreign businesses can establish their branches in Vietnam (hereinafter “Branches”) in accordance with Vietnam’s commitments in international agreements that the country in a member to carry out goods purchasing activities and other activities directly related to goods purchasing in accordance with Articles 16, 19, 20 and 22 of the Commercial Law and the regulations as specified in the Decree.

Minister of Trade, based on international agreements that Vietnam is a party, is assigned to declare and provide instructions to goods purchasing and other related to good purchasing activities carriying out by branches of foreign businesses in Vietnam.

3. Representative offices, branches are subsidiaries of foreign businesses. cannot establish representative offices, branches affiliate to representative offices, branches.

4. Representative offices, branches of foreign businesses that operate in specialized trade fields (e.g banking and finance, legal services, culture, education, tourism or others in accordance with the law) fall under other legal writtings are to be enforced by those.

Article 3: Agencies in charge of licencing establishment of representative offices, branches

1. The Ministry of Trade is responsible for issuance, re-issuance, modification, supplement, renewal and revocation of Licence for establishment of branches to operate in the fields as specified in sub-Article 2, Article 2 of the Decree.

2. Local Departments of Trade, Departments of Trade and Tourism (jointly known as Departments of Trade) are in charge of issuance, re-issuance, modification, supplement, renewal and revocation of Licence for establishment of representative offices.

Chapter II:

ISSUANCE, RE-ISSUANCE, MODIFICATION, SUPPLEMENT AND RENEWAL OF LICENCE FOR ESTABLISHMENT OF REPRESENTATIVE OFFICES, BRANCHES.

Article 4: Conditions on issuance of Licence for establishment of representative offices, branches

1. Foreign businesses are to be granted Licence for establishment of representative offices, branches in Vietnam if they meet the following conditions:

a. Being recognized as legal business by countries or territories (jointly known as countries) of business registration;

b. Having operated for no less than 01 year since legal establishment or valid business registration in the countries of origin;

2. Foreign businesses are to be granted Licence for establishment of branches in Vietnam if they meet the following conditions:

a. Being recognized as legal businesses by countries or territories (jointly known as countries) of business registration;

b. Having operated for no less than 05 years since legal establishment or valid business registration in the countries of origin;

3. Licence for establishment of representative offices, branches expire in five years but no more than expirition date of business registration or equal documents of foreign businesses in case foreign legislation establishes such a date.

Article 5: Application dossier for Licence for establishment of representative offices, branches

1. Application dossier for Licence for establishment of representative office includes:

a. Application for establishment of representative office in accordance with forms issued by the Ministry of Trade. The Application must be signed by legal representative of the foreign business;

b. Copy of the business entity’s Registration Certificate or other alternative documents certified by competent agencies of the country where the business is established. If the Business Registration Certificate or alternative documents have expiry date for business entity’s operation, the remaining time must be at least one year;

c. Audited financial reports or other alternative documents proving real existence and operation of the foreign business in the latest fiscal year;

d. Copy of Corporate Charter, applied to those which are economic organizations.

2. Application dossier for Licence for establishment of branch includes:

a. Application for establishment of branch in accordance with forms issued by the Ministry of Trade. The Application must be signed by legal representative of the foreign business;

b. Copy Corporate Charter of the branch, specifying scope of authorization of the branch’s head;

c. Copy of the Business Registration Certificate or other alternative documnets certified by competent agencies of the country where the business was established. If the Business Registration Certificate or alternative documents have an expiry date , the remaining time must be at least three years;

d. Audited financial reports or other alternative papers proving real existence and operation of the foreign business in the latest fiscal year;

3. Documents as mentioned in sub-Articles 1b, 1c, and Sub-Aritle 2b, 2c and 2d must be translated into Vietnamese, certified by the overseas diplomatic representative office in Vietnam and legalized in accordance withVietnamese laws.

Article 6: Rejection to grante Licence for establishment of representative offices, branches:

The agencies in charge of granting Licenses for establishment of representative offices, branches shall not grant the Licence for to foreign businesses in the following cases:

1. Foreign business does not meet conditions as specified in sub-Articles 1 and 2, and Article 4 of the Decree.

2. Foreign business trades in goods and services that are included in the List of prohibited goods and services under Vietnamese laws.

3. Foreign business applying for Licence for establishment of representative offices, branches within two years since revocation of Licence for establishment of representative office, branch in Vietnam in accordance sub-Article 2, Article 28 of the Decree.

4. There are evidences that establishment of the representative offices, branches is harmful to people’ health, national defense, security, social order, historic traditions, culture and ethics and other customs of Vietnam or brings damages to natural resources and the environment.

5. The application dossier is invalid and not supplemented with required documents to complete the dossier as required by the relevant License granting agency.

6. Other cases in accordance with the laws.

Article 7: Time lines for license granting process.

1. Foreign business presents application dossier for establishment of representative office, branch to the agency in charge of licencing as specified in Article 3 of the Decree.

2. For representative office, within 15 days since presentation of valid application dossier, local Department of Trade completes the appraisal process and grants Licence, along with sending a copy of the Licence to the Ministry of Trade, People’s Committee of province or City under Center (jointly known as provincial People’s Committee), taxation agencies, statistics authorities and Police dapartment at Provincial level, where the representative office is located.

3. For representative branch, within 15 days since presentation of valid application dossier, the Ministry of Trade finishes the appraisal process and grants Licence, along with sending a copy of the Licence to People’s Committees of province or city under Center (jointly known as provincial People’s Committee), taxation authorities, statistics authorities and Police dapartment at Provincial level, where the representative office is located.

4. If application dossier is not completed, within 03 office days the license granting agency shall inform the applicant in writing about the necessary supplements.

5. Time lines as specified in sub-Articles 2 and 3 above do not include time for foreign businesses to modify and supplement to application dossier for the Licence.

6. If a Licence for establishment of representative office, branch is not granted after the deadline as specified in sub-Articles 2 and 3 above, the competent agency shall inform the applicants about the reasons for not doing so.

Article 8: Report on operation of representative office, branch

1. Within 45 days since license granting date, representative office and branch shall have the following contents posted on 03 consecutive issues of newspapers or webistes, legally published in Vietnam:

a. Name, address of representative office, branch;

b. Name, address of foreign business;

c. Name of person leading representative office, branch;

d. Number, date of issuance, expiry date and issuance agency of Licence of establishment of representative office, branch;

e. Operation fields of representative office, branch.

2. Within the period of time as specified in Article 1 above, representative office shall officially come into operation at registered place and report to provincial Department of Trade on opening of the office/branch .

3. Within the period of time as specified in Article 1 above, branch shall officially come into operation at registered place and report that to the Ministry of Trade and provincial Department of Trade.

Article 9: Establishment of management board of representative office, branch

1. Establishment of management board and leader apparatus of representative office, branch is decided by foreign business.

2. Quantity of staff employed at representative office, branch shall be according to Vietnamese labour legislation and international agreements that Vietnam is a member to.

Article 10: Modifications, supplements to Licence for establishment of representative office, branch

1. In the following cases, foreign business shall proceed for modifications, supplements to Licence for establishment of representative office, branch at competent agency within 10 days, since the date of change):

a. Head of representative office, branch is changed;

b. Address of foreign business is changed within country of its establishment or business registration;

c. Address of representative office, branch is changed within a province or city under Centre ;

d. Address of representative office, branch in Vietnam is changed;

đ. Name or operation fields of representative office, branch in Vietnam is changed.

2. Application dossier for modifications and supplements to Licence for establishment of representative office, branch includes:

a. Application for modifications, supplements to Licence for establishment of representative office, branch pursuant to form issued by the Ministry of Trade, signed by authorized person of foreign business;

b. Original Licence for establishment of representative office, branch.

3. Within 10 days since receipt of valid application dossier, licencing agency shall modify, supplement the Licence and sent a copy of the changed Licence to agencies said in Articles 2 and 3, Article 7.

Article 11: Re-issuance of Licence for establishment of representative office, branch

1. In the following cases, foreign business shall have to apply for re-issuance of Licence for establishment of its representative office, branch to competent agency within 15 days since the day of change:

a. Address of representative office is changed from one province/city under direct central management to another;

b. Name or place of establishment of foreign business is changed from one country to another;

c. Operation fields of foreign business is are changed.

2. If Licence for establishment of representative office, branch is lost, damaged or destroyed, foreign business shall proceed for re-issuance at competent agency right after the event occurred.

Article 12: Application dossier for re-issuance of Licence for establishment of representative office, branch

1. Application dossier for re-issuance of Licence for establishment of representative office in the case said in sub-Article 1.a, Article 11 includes:

a. Application for re-issuance of Licence for establishment of representative office pursuant to form issued by the Ministry of Trade and signed by authorized representative of foreign business;

b. Issuance agency’s certification on deletion of registration of representative office at the previous locality;

c. Certified true copy of Licence for establishment of representative office.

2. Application dossier for re-issuance of Licence for establishment of representative office, branch in the case said in sub-Article 1.b, Article 11 includes:

a. Application for re-issuance of Licence for establishment of representative office, branch pursuant to form issued by the Ministry of Trade and signed by authorized representative of foreign business;

b. Copy of Business Registration Certificate or alternative papers of foreign business, which is certified by competent agency at the business’s place of establishment or business registration. These papers must be translated into Vietnamese, certified by Vietnamese diplomatic representative office agency overseas and consularly legalized in compliance with Vietnam’s relevant laws.

c. Original Licence for establishment of representative office, branch.

3. Application dossier for establishment of representative office, branch in the case said in Article 2, Article 11 includes:

a. Application for re-issuance of representative office, branch pursuant to form issued by the Ministry of Trade, signed by authorized representative of foreign business;

b. Original Licence for establishment of representative office, branch or its copy (if any).

Article 13: Formalities for re-issuance of Licence for establishment of representative offices, branches

1. If address of representative office is changed as said in sub-Article 1a, Article 11, foreign business shall follow formalities to end operation of representative office at the current address and apply for re-issuance Licence for establishment of representative office to provincial Department of Trade of the new location.

Within 05 office days since receipt of proposal for change of address to another province/city under direct central management, provincial Department of Trade of current location shall certify in written on deletion of registration of representative office at the locality.

Within 05 office days since receipt of foreign business’s valid application dossier as said in Article 1, Article 12, provincial Department of Trade of the new location shall re-issue Licence with validity period not exceeding the remaining validity time of previous Licence of representative office and report this to agencies as said in Article 2, Article 7.

2. Within 10 days since receipt of valid dossier from foreign business pursuant to Articles 2 and 3, Article 12, licencing agency shall re-issue Licence with validity period not exceeding the remaining validity time of previous Licence for establishment of representative office, branch and report that to agencies as said in Articles 2 and 3, Article 7.

Article 14: Renewal of Licence for establishment of representative office, branch

1. Foreign business get renewal for Licence for establishment of representative office, branch if meeting the following conditions:

a. Wanting to further operate in Vietnam in the form of representative office, branch;

b. Foreign business is operating in accordance with the law of country of establishment or business registration.

c. Having no records of violations of Vietnam’s laws on operation of representative office, branch.

2. Application dossier for renewal of Licence for establishment of representative office, branch includes:

a. Application for renewal of Licence for establishment of representative office, branch pursuant to form issued by the Ministry of Trade and signed by authorized representative of foreign business;

b. Audited financial report or alternative papers to prove real existence and operation of foreign business in latest fiscal year. Papers said in this sub-Article must be translated into Vietnamese, certified by Vietnamese diplomatic representative agencies overseas and consularly legalized in accordance with Vietnam’s laws.

c. Report on operation of representative office, branch until the point of time of applying for renewal for Licence for establishment of representative office, branch.

d. Original Licence for establishment of representative office, branch.

3. At least 30 days before expiry of Licence for establishment of representative office, branch, foreign business has apply for renewal.

4. Time for competent agency to renew Licence for establishment of representative office, branch is as time for issuance of Licence for establishment of representative office, branch pursuant to Article 7.

5. If competent agency does not renew Licence for establishment of representative office, branch before the deadline as specified in Article 7, it shall inform in written to foreign business reason for no renewal.

6. Competent agency in charge of issuing Licence for establishment of representative office, branch shall report to agencies as said in Articles 2 and 3, Article 7 on whether Licence is renewed or not.

7. Renewal duration is as validity duration of Licence for establishment of representative office, branch as said in Article 3, Article 4.

Article 15: Fees for issuance, re-issuance, modification, supplement and renewal of Licence for establishment of representative office, branch

1. Foreign enterprises are to pay fees for issuance, re-issuance, modification, supplement and renewal of Licence for establishment of representative office, branch.

2. The Ministry of Finance presides over and coordinates with the Ministry of Trade to set up levels of and manage fees for issuance, re-issuance, modification, supplement and renewal of Licence for establishment of representative office, branch.

Chapter III:

OPERATION, INTERESTS AND OBLIGATIONS OF REPRESENTATIVE OFFICES, BRANCHES

Article 16: Operation of representative offices

Operation fields of representative offices include:

1. Operating as contact office.

2. Promoting cooperation projects of foreign businesses in Vietnam.

3. Researching market to push up chances to purchase commodities, supply and consume commercial services of foreign businesses in Vietnam.

4. Supervising implementation of foreign businesses’ contracts signed with Vietnamese partners or related to the Vietnamese market.

5. Carrying out other activities as allowed by the law of Vietnam.

Article 17: Operation of branches

1. Being allowed to carry out activities as specified in the Licence for their establishment and in compliance with sub-Article 2, Article of the Decree.

2. If branches operate in the fields for which conditions are required in compliance with the law, branches can only operate if they meet enough conditions.

Business conditions are those that branches must meet or implement when they carry out business activities, being shown through Business Licence, qualification certificate for business conditions, professional certificate, professional insurance certificate, requirements on statutory capital or other requirements in accordance with the business law.

Article 18: Account opening

1. Representative offices can open foreign currency and Vietnam dong account at banks being allowed to operate in Vietnam and use the account for their business.

2. Branches can open foreign currency and Vietnam dong account at banks being allowed to operate in Vietnam and use the account for their business.

In some certain cases, branches can open account at overseas banks under permission from the State Bank of Vietnam. Branches are to report to the State Bank of Vietnam their use of accounts at overseas banks.

3. Opening, use and closing of accounts of representative offices and branches are in compliance with regulations set by the State Bank of Vietnam.

Article 19: Operation report regime

1. Prior to the final office day of January, representative offices and branches have to report in writing form on their business in previous year to the agency in charge of issuing licence for their establishment.

2. Branches have to follow financial and statistics report regimes in accordance with the law of Vietnam.

3. If needed under the law of Vietnam, representative offices and branches report, provide documents on or explain matters related to their operation as required by competent State management agencies.

Article 20: Interests and obligations of representative offices and heads of representative offices

Representative offices and heads of representative offices have interests and obligations in accordance with the Commercial Law and the following regulations:

1. Representative office for one foreign business cannot represent another one and lease out its office.

2. Head of representative offices of foreign businesses cannot concurrently do the following jobs:

a. Head of branches for foreign businesses in Vietnam;

b. Legal representative for foreign businesses to sign contracts without authorization in writing form from foreign businesses.

c. Legal representative of businesses established under the law of Vietnam.

3. If foreign business authorizes head of representative office to sign and modify contracts, the authorization must be in writing form. Each authorization is for one time of signing or modifying only.

Article 21: Interests and obligations for branches and head of branches

Branches and heads of branches have interests and obligations in accordance with the Commercial Law and those as specified below:

1. Branch for one foreign business cannot represent another one and lease out its office.

2. Head of branches of foreign businesses cannot concurrently do the following jobs:

a. Head of representative offices for the same foreign businesses in Vietnam;

b. Head of representative offices, branches for other foreign businesses in Vietnam.

Article 22: End of operation of representative offices, branches

1. Operation of representative office, branch ends in the following cases:

a. The foreign business requests and get approval from competent agency;

b. The foreign business ends it business in compliance with the law of the country where it established or registered for its business;

c. Operation time in Licence for representative office, branch ends but the foreign business does not apply for extension;

d. Operation time in Licence for representative office, branch ends but competent agency does not allow extension;

e. Licence for representative office, branch is revoked in compliance with sub-Article 2, Article 28 of the Decree.

2. Within at least 30 days before the tentative day when representative office, branch ends operation in compliance with sub-Articles 1a, 1b and 1c above, the foreign business send announcement on the event to the licencing agency, lenders, workers in the representative office, branch and other relevant individuals. The announcement must specify tentative time for ending operation of the representative office, branch and be posted publicly at the representative office, branch and syndicated in three consecutive issues of newspapers or online newspapers, which are allowed for distribution in Vietnam.

3. Within 15 days since the date of the decision on no extension for Licence for representative office, branch or the date of the revocation of the Licence in accordance with sub-Articles d, e of Article 1 above, the licencing agency must announce on the end of operation, specifying the ending time in three consecutive issues of newspapers or online newspapers that are allowed for distribution in Vietnam.

4. Within 15 days since foreign business and representative office, branch complete formalities in sub-Articles 3 or 4, Article 23, the licencing agency erases name of the representative office, branch in the register book.

5. Within 15 days since name of branch is abolished, the Ministry of Trade informs ending of operation of branch to provincial People’s Committee, Department of Trade, taxation authorities, statistics office and public security authorities of the province/city where the branch is located.

Within 15 days since name of branch is abolished, the provincial Department of Trade informs ending of operation of branch to the Ministry of Trade, provincial People’s Committee, taxation authorities, statistics office and public security authorities of the province/city where the branch is located.

Article 23: Obligations of foreign businesses for representative office, branch

1. Foreign business is liable to the law of Vietnam for operation of its representative office, branch in Vietnam.

2. Head of representative office, branch is liable for his/her activities and those of representative office, branch in accordance with the law of Vietnam in cases where they carry out activities out of the scope they are authorized.

3. At least 15 days before representative office, branch ends its operation in accordance with sub-Articles 1a, 1b and 1c of Article 22, foreign business, representative office, branch have to pay up their debts and realize other obligations to the State and relevant organizations and individuals in accordance with the law.

4. Within 60 days since ending of operation of representative office, branch in accordance with sub-Articles 1d and 1e of Article 22, foreign business has to pay up their debts and realize other obligations to the State and relevant organizations and individuals in accordance with the law.

Chapter IV:

STATE MANAGEMENT OVER OPERATION OF REPRESENTATIVE OFFICES, BRANCH

Article 24: Ministry of Trade has the following responsibilities:

1. Presiding over, coordinating with other Ministries and sectors to compile and submit to the agencies in charge of promulgation legal documents on representative office, branch in accordance within scope of their power.

2. Providing guidelines on issuance, re-issuance, modification, supplement, renewal and revocation of Licence for establishment of representative office; doing the jobs of issuance, re-issuance, modification, supplement, renewal and revocation of Licence for establishment of branch.

3. Inspecting management of Departments of trade over representative offices, branches all over the country.

4. Presiding over, coordinating with relevant Ministries, sectors and localities to inspect operation of representative offices, branches if needed or as requested by Ministries, sectors and localities.

5. Presiding over, coordinating with Ministries, sectors and localities to set up database on representative offices, branches all over the country.

6. Handling violations of representative offices, branches within the scope of its power.

Article 25: Provincial People’s Committees have the following responsibilities:

1. Directing provincial Departments of Trade to consider issuance, issue, re-issue, amend, modify, renew and revoke Licence for establishment of representative office in accordance with Article 3.

2. Managing operation of representative offices, branches and heads of representative offices, branches in their localities within their scope of power.

3. Directing Departments of Trade to inspect representative offices, branches if needed or organize inter-ministerial groups of inspectors as requested by local functional agencies.

Article 26: Departments of Trade have the following responsibilities:

1. Issuing, re-issuing, amending, supplementing, renewing, revoking Licence for establishment of representative office in accordance with Article 3.

2. Inspecting representative offices, branches if needed in accordance with the law or sending cadres to join interministerial inspectorate in accordance with decision of provincial People’s Committee.

3. Annually reporting to the Ministry of Trade situation of issuance, re-issuance, modification, supplement and revocation of Licence for establishment of representative office, branch at their localities.

4. Providing information, reporting to the Ministry of Trade for establishment of database on representative offices, branches.

Article 27: Inspection

1. During their operation, representative offices, branches must be under inspection of competent agencies as specified in Articles 24, 25 and 26 above and other competent agencies in accordance with the law of Vietnam. Inspection on operation of representative offices, branches must follow regulations on the laws on inspection.

2. People who issues inspection decisions that are not in accordance with the law or abuse inspection as a tool to cause difficulties against operation of representative offices, branches will face penalties in accordance with the law.

Article 28: Sanctions

1. Representative offices, branches which break regulations of the Decree or have violations as listed below will be fined in accordance with the law:

a. Providing dishonest, inaccurate, late declarations in files applying for issuance, re-issuance, modification, supplement and revocation of Licence for establishment of representative offices, branches;

b. Not operating during the period of time for operation as specified in Licence for representative offices, branches;

c. Not reporting to the Licencing agency the time of opening within the allowed period of time;

d. Not having any locations for representative offices, branches or leasing out offices for representative offices, branches;

e. Not regularly reporting on operation of representative office, branch to licencing agency in accordance with regulations;

f. Not reporting, providing documents or explaining issues related to operation of representative office, branch as required by State agencies;

g. Not proceeding to modifying, supplementing, re-issuing Licence in accordance with the Decree;

h. Changing Licence;

i. Operating differently from contents on operation of representative, branch as specified in Licence;

k. Not following formalities on operation ending as specified in the Decree;

l. Violating obligations of representative offices, branches and head of representative offices, branches in accordance with the Decree;

m. Keeping operating after foreign business already finishes its operation.

n. Keeping operating after competent State agencies revoke licence.

2. Representative offices, branches have their licence revoked in the following cases:

a. Not coming into operation within 6 months since being granted Licence;

b. Not operating in consecutive 6 months without reporting to licencing agency;

c. Not regularly reporting on operation of representative offices, branches for 2 consecutive years;

d. Not reporting as required by competent agencies within 6 months since the requirement is issued;

e. Not operating with the right functions of representative offices, branches in accordance with the law.

3. Heads of representative office, branch violating the Decree shall face penalties depending on the levels of their violations.

4. Foreign businesses operating in Vietnam in the form of representative offices, branches without licence shall be ended and face penalties in accordance with the law of Vietnam.

Article 29: Complaint and denouncement

Foreign businesses can complain on issuance of or refusal to issue Licence for establishment of representative offices, branches; decisions by State staff that are not in accordance with the law.

Chapter V:

IMPLEMENTATION

Article 30: Effect

1. The Decree comes into effect in 15 days since its publication in the Official Gazette.

2. The Decree replaces regulations related to representative offices, branches as stated in Decree 45/2000/ND-CP dated September 6, 2000 by the Government providing guidelines on representative offices, branches of foreign businesses and foreign tourism enterprises in Vietnam.

3. Previous regulations on representative offices, branches of foreign businesses in Vietnam contrary to the Decree are abolished.

Article 31: Transitional regulations

1. Representative offices, branches established before the Decree comes into effect will keep operating under their Licence and proceed for re-issuance of Licence for establishment of representative offices, branches in accordance with the Decree within 6 months since it comes into effect.

2. Branches of foreign cigarette companies established before the Decree comes into effect will operate under particular regulations set by the Prime Minister.

Article 32: Implementation

1. Minister of Trade is responsible for providing guidelines on implementation of the Decree.

2. Ministers, Heads of ministerial-level agencies and the Government’s units and Chairpersons of People’s Committee of provinces and cities under direct central management are responsible for implementation of the Decree.