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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:
3-TM/PC
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Hanoi,
February 10, 1995
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CIRCULAR
GUIDING THE IMPLEMENTATION OF THE STATUTE ON THE
ESTABLISHMENT AND OPERATION OF REPRESENTATIVE OFFICES OF FOREIGN ECONOMIC
ORGANIZATIONS IN VIETNAM
Pursuant to Decree No.82-CP
on the 2nd of August 1994 of the Government promulgating the Statute on the
Establishment and Operation of the Representative Offices of Foreign Economic Organizations
in Vietnam, and Decree No.179-CP on the 2nd of November 1994 of the Government
on the amendments and supplements to the above-mentioned Statute (hereunder
referred to as Statute).
After exchanging views with a number of branches and localities concerned, and
with the approval of the Prime Minister (official dispatch No.372/QHQT on the
23rd of January 1995), the Ministry of Trade gives the following concrete
guidance on the implementation of a number of points in the Statute:
I. OBJECTS
ELIGIBLE FOR CONSIDERATION AND GRANTING OF LICENSES TO SET UP REPRESENTATIVE
OFFICES, AND THE AGENCIES AUTHORIZED TO GRANT LICENSES FOR SETTING UP
REPRESENTATIVE OFFICES:
1/ Object eligible for
consideration and granting of licenses to set up Representative Offices:
Those foreign economic
organizations mentioned in Article 1 of the Statute are organizations
established to conduct business for profit (hereunder referred to as
Companies). If they wish to set up Representative Offices in Vietnam to
establish economic and trading relations with Vietnamese businesses and if they
meet the conditions stipulated in Article 2 of the Statute and this Circular,
they are eligible for consideration and granting of licenses to set up
Representative Offices in Vietnam.
A company can:
-Either apply for the
establishment of many independent Representative Offices under its direct
management, all called Representative Office of the Company, in various
provinces and cities of Vietnam; each Representative Office must have its own
chief;
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2/ The agencies authorized to
grant licenses to set up Representative Offices:
- The Ministry of Trade is
responsible for considering, granting, extending, supplementing, withdrawing or
nullifying licenses for foreign companies (except credit organizations and
banks) to set up Representative Offices in Vietnam;
- The State Bank is responsible
for considering, granting, extending, supplementing, withdrawing or nullifying
licenses for credit organizations and banks to set up Representative Offices in
Vietnam.
II.-
ELIGIBILITY FOR CONSIDERATION AND GRANTING OF LICENSES TO SET UP REPRESENTATIVE
OFFICES:
1/ Companies to be considered
and granted licenses to set up Representative Offices in Vietnam as stipulated
in Article 2 of the Statute must fill these conditions:
- Companies established in
accordance with the laws of their countries (the countries where the companies
are established);
- They have operated in their
own countries for no less than 5 years;
- They have investment and
trading projects in which Vietnam is interested and are able to implement these
projects to help promote economic and commercial development of Vietnam,
notably:
+ Their investment projects have
been licensed by the authorized agency of Vietnam;
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+ They have signed contracts to
import Vietnam's goods, particularly goods the exportation of which is
encouraged by Vietnam;
Companies which apply for the
establishment of Representative Offices in order to speed up the drawing up of
investment projects or to carry out the procedure to apply for investment
license in Vietnam, will also be considered for the establishment of
Representative Offices within the time-limit necessary to complete the
above-mentioned work, but not beyond 3 years from the date they are granted a
license.
2/ Companies which enjoy relief
in eligibility and are given priority in the consideration and granting of
licenses as stipulated in Point 2, Article 2, of the Statute, are:
+ Companies newly established
which have operated for less than 5 years, but which have an investment project
licensed with a capital equal to 10 million USD or more; or which have a
contract to import goods produced or processed in Vietnam and the exportation of
which is encouraged by Vietnam, such as arts and crafts, aquatic products, farm
products...;
+ Business groups or companies
which have been established and have operated in a foreign country for no less
than 5 years, but which now establish a new company to have economic and
commercial cooperation with Vietnam, are also eligible for consideration and
granting of licenses to set up their Representative Offices in Vietnam.
III.-
PROCEDURE FOR CONSIDERING AND GRANTING LICENSES TO SET UP REPRESENTATIVE
OFFICES :
1/ Companies which wish to set
up a Representative Office or a branch office of their Representative Office in
a province or city of Vietnam, must send to the Ministry of Trade a dossier
including :
- An application for setting up
a Representative Office, one copy in Vietnamese and one copy in English;
- A certificate on the
establishment of the Company (the original copy in English or a photocopy of it
notarized by the country where the Company was established, and one copy of the
Vietnamese version);
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- A certificate of the Company's
state of finance in the latest year granted by the audit organization of the
country where the Company was established (original copy in English or a
photocopy of it notarized by the country where the Company was established, and
one copy of the Vietnamese version);
- Investment license or
investment project not yet licensed; the commercial contract or the contract on
economic, scientific and technical cooperation to be verified (photocopy).
The company must send this
dossier directly to the Ministry of Trade (in Hanoi), and the Office of the
Ministry of Trade shall sign a receipt to the company's dossier. If the company
is unable to send the dossier directly to the Ministry of Trade, it can empower
(in writing) a business or service organization established in accordance with
Vietnam's law to forward the dossier to the Ministry of Trade on its behalf.
2/ After receiving the dossier
from the Company:
- The Ministry of Trade must
send a paper exchanging opinions with the State managing ministry concerned in
the specialized branch, and with the People's Committee of the province or city
where the Representative Office is to be established.
- Within 20 (twenty) working
days after this paper is sent, if the Ministry of Trade does not yet receive a
reply from the offices concerned, it shall consider the dossier and decide to
grant or not to grant a license for the Company, to set up its Representative
Office in order to meet the deadline set at Article 6 of the Statute.
3/ The original copy of the
license for setting up a Representative Office shall be granted to the Company
concerned, and a photocopy of it shall be sent to the People's Committee of the
province or city where the Representative Office is located.
IV.- ON THE
OBLIGATIONS AND RIGHTS OF REPRESENTATIVE OFFICES :
1/ Upon receiving the license
(granted for the first time, granted with supplements to the contents of its
activity, or extended), the Company concerned must pay a fee as stipulated by
the Ministry of Finance of Vietnam. The Vietnamese State shall collect no other
fee than the official fee.
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3/ The Chief of a Representative
Office and its staff have no right to sign any trading contract with Vietnamese
businesses, unless they have a legal mandate from the Company's Director.
4/ The Representative Office can
lease office space (only one location for office space in each province or
city), housing space and facilities for its operation and living as stipulated
by Vietnam's law.
5/ The Representative Office
must register, with the People's Committee of the province or city where it is
located, the number of foreigners entering Vietnam to work at its office (including
foreigners and Vietnamese residing in foreign countries) according to the size
of the staff stipulated in the license; and the number of staff members
recruited in Vietnam to work at its office (including Vietnamese citizens and
foreigners residing in Vietnam) in accordance with Vietnam's Labor Law, and is
obliged to create favorable conditions for its staff members to pay fully their
income tax as stipulated by law.
6/ The Representative Office
must buy the compulsory insurances as stipulated in Article 14 of the Statute
and according to the guidance of the Ministry of Finance of Vietnam.
7/ The Representative Office can
open a bank account for expenditure (in foreign currencies or in Vietnamese
Dong originating from foreign currencies) at a bank which is established and
operates in accordance with Vietnam's law, for administrative expenditure; it
shall not use this account for business purpose, for profit gaining services,
or as a transaction account (to deposit Vietnamese Dong into its account and
then change it into a foreign currency for transfer abroad or to pay for goods
in Vietnam).
8/ The Representative Office can
import into Vietnam the necessary things for its work and living, but must pay
tax according to the Law on Export-Import Tariff currently in force in Vietnam,
and must go through the import procedure as stipulated by the General Customs
Department of Vietnam.
9/ A Representative Office can
have its own seal indicating the Company it represents and the province or city
where it is located... according to the format and form stipulated by the
Ministry of the Interior of Vietnam, and can use the seal only in its
administrative relations in Vietnam.
V. About the
registration of operation by Representative Offices :
1/ Within 90 days at the latest
(regarding the license granted for the first time) or 15 days (for an extended
or supplemented license) from the date when the license is granted, the company
concerned must send to the People's Committee of the province or city where its
Representative Office is located a dossier to register its operation,
including:
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- The contract and other
documents on the lease of housing space in Vietnam;
- The contract and other
documents concerning the hire (recruitment) of labor in Vietnam;
- A document appointing the
Chief of the Representative Office by the Company's Director;
- The resumes of the Chief of
the Representative Office and of the persons recruited abroad and the persons
recruited in Vietnam for work at the Representative Office.
2/ The People's Committee of the
province or city where the Representative Office is located shall have to
ratify the register of operation of the Company within 15 days after receiving
its full dossier.
3/ After ratifying the register
of operation of a Representative Office, the People's Committee of the province
or city concerned must send a photocopy of the register to the Ministry of
Trade for supervision and inspection.
VI. ON THE
CHANGE OF NAME, THE EXTENSION AND SUPPLEMENTATION OF LICENSES, AND THE
TERMINATION OF OPERATION OF REPRESENTATIVE OFFICES :
1/ Changing the name of a
Representative Office : A Representative Office can change its name only when
the Company has changed its name in accordance with the law of the country
where it is established.
In case of merger, dissolution
or pooling of capital to establish a juridical person with a new name and new
function and task, the new Company, which wants to set up a Representative
Office in Vietnam, must go through the procedure from the beginning, in
accordance with the law in force.
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- An application to extend the
Company's license;
- A brief report on the
activities of the Representative Office during the time the license is in
effect;
- A paper recording the opinion of
the People's Committee of the province or city where the Representative Office
is located, about the extension.
3/ Supplementing the licenses of
Representative Offices :
a/ Amending and supplementing
the contents of activity : A Representative Office can request amendment and
supplementation to the contents of its activity only if these amendments and
supplementations conform to the function and task of the Company, or if there
are changes in the function and task of the Company in accordance with the law
of the country where it is established and in conformity with Vietnam's law;
b/ Broadening the staff of a
Representative Office : a Representative Office can increase the number of
persons recruited abroad to its staff working in Vietnam only after it has
received a written approval from the Ministry of Trade. On the number of
persons recruited in Vietnam, the Representative Office concerned has only to
register it with the People's Committee of the province or city, and no limit
is imposed on this number.
4/ Terminating the operation of
Representative Offices :
a/ In case a Representative
Office ceases its operation as stipulated in Points 2 and 3, Article 10 of the
Statute, the Ministry of Trade shall issue a notice to the Company and the
People's Committee of the province or city where it is located 30 days before
the cessation of its operation.
In case a Representative Office
ceases its operation as stipulated in Point 2, Article 10 of the Statute, the
Company must send its request to the Ministry of Trade 60 days before the
scheduled date of termination and can only cease its operation after receiving
a written approval from the Ministry of Trade.
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c/ In any case, when a
Representative Office ceases its operation, the People's Committee of the
province or city where it is located is the agency authorized to supervise,
inspect and urge the Representative Office concerned in discharging its
obligation as stipulated in Article 11 of the Statute.
VII. ON THE
RESPONSIBILITY OF MANAGEMENT, SUPERVISION AND PERIODICAL REPORTING :
1/ The responsibility of
management and supervision of managing offices of the Vietnamese State :
a/ The Ministry of Trade shall
have to :
- Exercise unified State
administrative management of all activities of Representative Offices in
Vietnam;
- Act as a center of
coordination for the public offices and localities concerned to organize supervision
of all activities of Representative Offices when necessary, and/or at the
proposal of the ministries and branches, and/or the People's Committees of
provinces or cities concerned.
b/ The ministries and branches
concerned shall have to :
- Exercise State management in
the specialized branch in accordance with their function, task and powers, and
promptly exchange opinions with the Ministry of Trade and/or the People's
Committee of the province or city where the Representative Office concerned is
located, on questions arising from the activities of Representative Offices in
order to coordinate their direction;
Join the Ministry of Trade
and/or the People's Committee of the province or city where the Representative
Office is located, in supervising the activities of the Representative Office,
and advise the Ministry of Trade and/or the People's Committee of the province
or city concerned, to issue decision to handle violations with their
juridiction.
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- Exercise administrative
management over the Representative Offices in its locality, including the
management of related administrative procedures as leasing housing space,
recruiting (hiring) labor, registering their operations as stipulated, and all
activities of the Representative Offices in the locality;
- Periodically (every year), or
whenver necessary, cooperate with the public offices concerned in organizing
inspection of all activities of the Representative Offices in the locality, by
a written decision of the President of the People's Committee of the province
or city.
When the need arises, propose to
the Ministry of Trade to cooperate with the public offices concerned to
organise inspection of the activities of the Representative Offices in the
locality by a written decision of the Ministry of Trade.
2/ On periodical reporting :
- Once every 6 months, a
Representative Office must send a report (in Vietnamese and in English if
necessary) to the Ministry of Trade and the People's Committee of the province
or city where it is located, on its activities (the report on the first 6
months of the year must be sent before the 15th of July, and the annual report
before the 20th of January of the following year).
- In cases of necessity, the
Ministry of Trade and the People's Committee of the province or city where the
Representative office is located, can request the Representative Office to file
in an urgent report apart from the periodical reports as mentioned above.
VIII. -
EFFECTIVE TIME:
This Circular replaces Circular
No.04 TN/PC issued on the 6th of May 1991 by the Ministry of Trade, and takes
effect from the date of its signing.
In the process of implementing
this Circular, if any difficulty or problem arises, the Ministries, the
Ministerial-level Agencies, the Agencies attached to the Government, and the
People's Committees of provinces or cities should promptly report it to the
Ministry of Trade for solution in accordance with its powers, or for submission
to the Prime Minister for instruction.
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FOR
THE MINISTER OF TRADE
VICE-MINISTER
Mai Van Dau