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THE
MINISTRY OF TRADE
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No:
10-TM/PC
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Hanoi, August 04, 1994
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CIRCULAR
GUIDING
THE IMPLEMENTATION OF THE REGULATION ON ESTABLISHING OVERSEAS REPRESENTATIVE
OFFICES OF VIETNAMESE BUSINESSES
In implementing Article 20 of
the Regulation of Establishing Overseas Representative Offices of Vietnamese
Businesses which is issued in conjunction with Decree No 40-CP of the 19th of
May, 1994 of the Government, and upon consulting the concerned agencies and
getting the approval of the Government (Note No 3921-QHQT of the 16th of July,
1994), the Ministry of Trade now issues detailed provisions on a number of
points in the Regulation with a view to unifying the implementation:
1. On the subjects to be
considered for licensing:
Vietnamese businesses of all
economic sectors, irrespective of their business lines and level of management,
can be considered for permit to establish their representative offices abroad
provided that they have the qualifications stipulated in the Regulation.
Concretely, these businesses include:
1.1. State-owned businesses;
1.2. Businesses which are
established in accordance with the Corporate Law (Joint-Stock and Limited
Liability Companies);
1.3. Businesses which are
established in accordance with the Law on Private Businesses;
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1.5. Businesses which are
established in accordance with the Law on Foreign Investment in Vietnam.
2. On the qualifications for a
business to be permitted to open its overseas representative office:
The businesses stipulated in
Point 1 of this Circular which wish to be permitted to open their
representative offices abroad must have the qualifications provided for in
Article 5 of the Regulation, namely:
2.1. The businesses have got the
license for establishment issued by the authorized State agency and have registered
their operation in accordance with the current provisions of the Vietnamese
law;
2.2. The businesses have the
need to open their overseas representative offices to facilitate their
marketing, the execution of their contracts in trade, service and/or economic
and scientific-technological cooperation with customers in the host countries;
2.3. The businesses have legal
financial resources to rent office space, purchase working facilities and
equipment and ensure the normal activities of their representative offices in
the host countries;
3. On the shared representative
office for many businesses and the hiring of locals to work at the
representative office:
3.1. In case two or more
businesses satisfy the required qualifications but decide that it will be of
low efficiency and high costs will incur if they open their own offices
separately, they can arrange an agreement (in writing) on sharing a
representative office abroad and assign one of them to apply for a permit from
the Ministry of Trade.
3.2. Vietnamese businesses are
prohibited from requesting overseas representations of the Socialist Republic
of Vietnam and/or their officials and personnel to perform in any forms the
tasks and powers of a business representative office provided for in Article 11
of this Regulation.
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3.3.1. The person-in-charge
(Head of the Representative Office) must be a Vietnamese national and belong to
the staff of the business in the home country.
3.3.2. The business may hire
foreigners or Vietnamese having settled in a foreign country under terms
mutually agreed upon and conforming to the laws of Vietnam and the host
country.
3.3.3. In special cases when the
workload of the Representative Office is not large yet, the business can delay
the sending of the person-in-charge (Head of the Representative Office) and
only hire a staff with qualifications as stipulated in Point 3.3.2. of this
Circular to discharge one or a number of tasks and powers of the Business
Representative Office as provided for in Article 11 of the Regulation. In these
cases, the Director of the Business shall assume the function of the Head of
the Representative Office.
4. On the procedure to acquire
permit for setting up an Overseas Representation Office:
4.1. A Vietnamese business which
wishes to open a Representative Office abroad shall submit a file as required
by Article 8 of the Regulation to the Ministry of Trade. The file shall
comprise.
4.1.1. An application for
establishing an Overseas Representative Office filed by the Director of the
business.
4.1.2. Officially recognized
copies of the founding license of the business and its business registration in
accordance with current provisions of the Vietnam law.
4.1.3. Documents testifying to
the need of the business to open a Representative Office abroad. They include
agreements or requests on marketing (if any); contracts on trade, service
and/or cooperation in economic activities and science and technology which
determine the need to carry them out with customers in the host country.
4.1.4. A document of the
business detailing the lawful financial resources to ensure the normal activity
of its Representative Office abroad.
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4.2. Within 20 (twenty) days
from receiving the complete and lawful file, the Ministry of Trade shall decide
whether or not to permit the business to establish its Representative Office
abroad. In case the permit is denied, the Ministry of Trade shall make a
written reply clearly explaining the reasons for its denial.
4.3. After receiving from the
Ministry of Trade the permit to open its Representative Office abroad, the
business has the right to contact with the authorized agencies at the host
country to make arrangements for the opening of its Representative Office in
accordance with the law of the host country, and within 6 (six) months from the
issuance of the permit by the Ministry of Trade, the business has to complete the
opening of its Representative Office and report in writing it to the Ministry
of Trade.
4.4. After 6 (six) months from
the issuance of the permit by the Ministry of Trade, if the business has not
opened its Representative Office, it has to report in writing to the Ministry
of Trade, clearly explaining the reasons why it cannot and asking the Ministry
of Trade to renew the permit (if it still has the wish to open its
Representative Office), or the Ministry of Trade shall withdraw the permit in
accordance with law.
5. On the procedure to close an
Overseas Business Representative Office:
5.1. In case a Representative
Office is to be closed in accordance with the provision of Article 17 of the
Regulation, the business has to report in writing to the Ministry of Trade,
clearly explaining the actual state of operation of the Office and proposing
measures for solution.
5.2. On the basis of the report
of the business and/or the assessment of Ministry of Trade within its
jurisdiction, the Ministry of Trade shall decide to close the Overseas Business
Representative Office.
5.3. The Business Representative
Office shall be closed after 15 (fifteen) days from the date of the decision of
the Ministry of Trade.
6. Implementation provision:
6.1. A Vietnamese business,
which had opened its Representative Office abroad prior to the issuance of the
Regulation and this guiding Circular and which wishes to continue the
Representative Office, has to file a new application under the guidance of Point
4.1. of this Circular for a change of permit in accordance with the provision
of Article 19 of the Regulation.
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FOR
THE MINISTER OF TRADE
VICE MINISTER
Mai Van Dau