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THE GOVERNMEN
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SOCIALIST REPUBLIC OF
VIET NAM
Independence - Freedom – Happiness
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No. 92/1998/ND-CP
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Hanoi, November 10,
1998
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DECREE
ON THE LEGAL CONSULTANCY PRACTICE BY FOREIGN LAWYERS’
ORGANIZATIONS IN VIETNAM
THE GOVERNMENT
Pursuant to the Law on Organization of the
Government of September 30, 1992;
At the proposal of the Minister of Justice,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Foreign
lawyers’ organizations that meet all the conditions prescribed in this Decree
may be licensed to practice legal consultancy in Vietnam.
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Article 3.- Lawful
property of foreign lawyers’ organizations practicing legal consultancy in
Vietnam shall not be nationalized or confiscated through administrative
measures.
Article 4.- Foreign
organizations and individuals shall not be allowed to practice legal
consultancy in Vietnam in any forms without being permitted by Vietnam’s
Ministry of Justice under the provisions of this Decree.
Article 5.- Foreign
lawyers’ organizations and foreign lawyers practicing legal consultancy in
Vietnam must respect the independence and sovereignty of Vietnam and abide by
the Vietnamese law.
Chapter II
THE CONDITIONS FOR
PRACTICE, FORMS OF ORGANIZING THE PRACTICE AND THE LICENSING PROCEDURES
Article 6.- A foreign
lawyers’ organization applying for license to practice legal consultancy in
Vietnam must fully meet the following conditions:
1. Being established and operating lawfully in
the country of which such foreign lawyers’ organization bears the nationality;
2. Having foreign clients conducting investment
and/or business activities in Vietnam;
3. Having prestige in the legal consultancy;
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5. Having an operation plan and committed to
fulfill its obligations in accordance with provisions of this Decree and other
provisions of the Vietnamese law;
6. Having the material facilities necessary for
its legal consultancy activities.
Article 7.- Foreign
lawyers’ organizations that meet all the conditions prescribed in Article 6 of
this Decree shall be licensed to set up their branches in Vietnam.
Each foreign lawyers’ organization shall be
allowed to set up a maximum of two branches in Vietnam.
Foreign lawyers’ organizations shall be
responsible for their branches’ activities before the Vietnamese law.
Each foreign lawyers’ organization shall appoint
one of its own lawyers to act as the chief of its branch. The branch chief
shall manage, run and be responsible for the organization and operation of the
branch in Vietnam.
Article 8.- A foreign
lawyer wishing to practice in the branch of a foreign lawyers’ organization in
Vietnam must fully meet the following conditions:
1. Having legal consultancy practice license
granted by a foreign competent agency;
2. Having goodwill toward the Vietnamese State;
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Apart from the conditions prescribed in Clauses
1, 2 and 3 of this Article, the chief lawyer of the branch of a foreign lawyers’
organization in Vietnam must have practiced legal consultancy for at least 5
years.
Article 9.- The
operation duration of the branch of a foreign lawyers’ organization in Vietnam
is 5 years from the date its license is signed, and may be extended. Each
extension shall not exceed 5 years.
Article 10.- A foreign
lawyers’ organization wishing to set up a branch in Vietnam shall have to file
an application for license. The application for license to set up a branch must
have the following principal content:
1. The full name, nationality and address of the
head office of the foreign lawyers’ organization;
2. The name of the branch;
3. The content of operation and fields of legal
consultancy;
4. The operation duration;
5. The proposed location of the branch office;
6. The full name of the foreign lawyer appointed
as the branch chief by the foreign lawyers’ organization.
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1. A copy of the Statute or papers evidencing
the lawful establishment and operation of the foreign lawyers’ organization;
2. The written introduction of the foreign
lawyers’ organization’s operation;
3. The report on the financial status of the
foreign lawyers’ organization for the last two years;
4. The list and the professional and juridical
resumes (if any), and copies of the practice licenses of the foreign lawyers
working in the branch;
5. The decision to appoint one foreign lawyer as
the branch chief;
6. The operation plan of the branch;
7. The list of foreign clients of the foreign
lawyers’ organization, who conduct investment and/or business activities in
Vietnam.
Article 12.- The
application must be made in Vietnamese. The papers enclosed therewith, which
have been made and certified abroad, must be legalized by consulates. If they
are made in foreign language(s), they must be translated into Vietnamese and
the translations must be certified by the Vietnamese notary public or the
Vietnamese diplomatic missions or consulates abroad .
The following papers must be certified by the
competent agency of the country of which the foreign lawyers’ organization
bears the nationality:
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2. Copies of the operation licenses of the
foreign lawyers;
3. The decision to appoint a foreign lawyer as
the branch chief.
Article 13.- The
application for license to set up a branch of a foreign lawyers’ organization
and papers enclosed therewith shall be addressed to the Ministry of Justice.
Within 60 days from the date of receiving the complete and valid dossier and
fee(s), the Ministry of Justice shall examine the dossier, consult the
concerned agencies and decide to grant or not to grant the license.
Each license shall be made in three copies: one
shall be granted to the foreign lawyers’ organization, one sent to the People’s
Committee of the province or centrally-run city where the branch office of the
foreign lawyers’ organization is located and another kept at the Ministry of
Justice.
The license shall take effect after its signing.
In cases of refusal to grant a license, the
Ministry of Justice shall have to notify the applicant in writing and clearly
state the reason(s) therefor.
Article 14.- Within 60
days from the date it is licensed, the branch of the foreign lawyers’
organization shall have to register its practice at the Justice Service of the
province or centrally-run city where the branch office is located. If past that
time limit the branch of the foreign lawyers’ organization still fail to
register its practice, its license shall be invalidated, except for cases with
plausible reason(s) accepted by Vietnam’s Ministry of Justice.
When registering its practice, the branch of the
foreign lawyers’ organization shall have to produce the license to set up the
branch and the document certifying the branch office location.
Within 15 days from the date of receiving the complete
and valid dossier, the provincial/municipal Justice Service shall have to grant
the practice registration paper to the branch of the foreign lawyers’
organization. The branch of the foreign lawyers’ organization shall commence
its operation only after it is granted the practice registration paper.
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Article 16.- When a
foreign lawyers’ organization’s branch wishes to change one of the following
contents of its license: its name, its office location, the branch chief, the
list of lawyers or the area of legal consultancy, it shall have to file an
application for permission from the Ministry of Justice and be permitted to
make such change(s) only after it is so approved in writing by the Ministry of
Justice.
Within 30 days from the date the written
approval of the change in the license content takes effect. The foreign
lawyers’ organization’s branch shall have to register such change at the
Justice Service of the province or centrally-run city where the branch office
is located.
Article 17.- The
foreign lawyers’ organization’s branch wishing to have its operation duration
extended shall have to file an application for extension to the Ministry of
Justice at least 60 days before the expiry.
Within 30 days from the date of receiving the
application for extension, the Ministry of Justice shall decide the extension;
if it refuses to extend the operation duration, the Ministry of Justice shall
have to reply in writing and clearly state the reason(s) therefor.
Within 30 days from the date the decision on
extension of its operation duration is issued, the foreign lawyers’
organization’s branch shall have to register the extension at the Justice
Service of the province or centrally-run city where the branch office is
located and publish it on a newspaper as prescribed in Article 15 of this
Decree.
Article 18.- When
filing the application for a branch-establishment license, an extension of its
operation duration or for a change in its license’s content, a foreign lawyers’
organization shall have to pay a fee jointly prescribed by the Ministry of
Finance and the Ministry of Justice.
Chapter III
THE SCOPE OF OPERATION,
THE RIGHTS AND OBLIGATIONS OF THE BRANCH OF A FOREIGN LAWYERS’ ORGANIZATION AND
FOREIGN LAWYERS
Article 19.- A branch
of a foreign lawyers’ organization (hereafter referred to as the branch for
short) shall only be allowed to practice according to the content and fields
stated in its license.
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Article 21.- The branch
shall be entitled to enter into legal consultancy cooperation contracts with
Vietnamese legal consultancy organizations in order to get consultations on
Vietnamese laws and to provide such Vietnamese legal consultancy organizations
with its consultations on foreign laws and international laws.
A legal consultancy cooperation contract is a
written document signed between the branch and a Vietnamese legal consultancy
organization.
A legal consultancy cooperation contract must
include the following principal contents: the mode of cooperation, the mode of
remuneration calculation, the rights, obligations and responsibilities of each
party; and the relationship between each party and the clients.
The branch shall send copies of the legal
consultancy cooperation contract to the Ministry of Justice and the Justice
Service of the province or centrally-run city where the branch office is
located.
Article 22.- The branch
shall be entitled to receive remuneration on the basis of the agreement reached
with its clients, the complexity of the cases, the time consumed and the
reasonable expenses for such consultancy provision.
The receipt of remuneration for the legal
consultancy activities by the branch shall be effected in Vietnam.
Article 23.- The branch
shall have to apply the accounting and statistical regime according to the
Vietnamese legislation on accounting and statistics; open foreign currency and
Vietnam Dong accounts at Vietnamese banks, joint venture banks or branches of
foreign banks licensed to operate in Vietnam and effect all revenues and
expenditures via such accounts.
Article 24.- The branch
shall be entitled to sign labor contracts with its staff who are Vietnamese
citizens; and recruit foreigners who are not lawyers to work for it according
to Vietnam’s labor legislation.
The rights and obligations of the contractual
Vietnamese and foreign personnel working in the branch shall be specified in
the contracts in accordance with Vietnam’s labor legislation.
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Article 25.- The branch
shall be entitled to import means and facilities necessary for its operation in
Vietnam according to the provisions of Vietnamese law.
Article 26.- The branch
and its foreign lawyers shall be entitled to remit abroad their income earned
from legal consultancy activities according to the provisions of Vietnamese
law.
Article 27.- The branch
and its foreign lawyers shall have to strictly abide by Vietnam’s regulations
on foreign exchange management.
Article 28.- The branch
must have at least one foreign lawyer working permanently in Vietnam.
Article 29.- The
branch shall be entitled to admit Vietnamese citizens holding the bachelor of
law degree as legal consultancy trainees thereat
Legal consultancy practice trainees at the
branch shall not allowed to provide legal consultancy to clients.
The rights, obligations and probation term of
the legal consultancy trainees at the branch shall be agreed upon by the branch
and such trainees and stated in the labor contracts in accordance with
Vietnam’s labor legislation and this Decree.
The branch shall have to notify the list of
legal consultancy trainees thereat to the Justice Service of the province or
centrally-run city where the branch office is located.
Article 30.- The branch
shall have to pay compensation for any material loss caused to clients by its
lawyers at the latter’s faults.
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Article 32.- The
branch’s lawyers shall have to practice legal consultancy in an honest and
objective manner.
Article 33.- The branch
and its foreign lawyers are obligated to pay taxes to the Vietnamese State
according to the provisions of Vietnamese laws.
Article 34.- The branch
shall have to report in writing biannually and annually to the Ministry of
Justice and the Justice Service of the province or centrally-run city where its
office is located on its organization and operation; in case of necessity, it
shall have to report at the requests of the Ministry of Justice and the
concerned agencies as prescribed by law.
Article 35.- A branch
shall terminate its operation in the following cases:
1. The operation duration stated in its license
expires while the extension thereof has not been granted yet or has been
rejected;
2. It voluntarily terminates its operation;
3. It is deprived of the right to use the
license;
4. The foreign lawyers’ organization which has
set up the branch terminates its operation in the country of which such foreign
lawyers’ organization bears the nationality.
In cases where it voluntarily terminates its
operation, the branch shall have to report it in writing to the Ministry of
Justice and the Justice Service of the province or centrally-run city where the
branch office is located 60 days before the date planned for the termination of
its operation.
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Chapter IV
THE MANAGEMENT OF LEGAL
CONSULTANCY PRACTICE CONDUCTED IN VIETNAM BY FOREIGN LAWYERS’ ORGANIZATIONS
Article 36.- The
Ministry of Justice shall manage the legal consultancy practice by foreign
lawyers’ organizations in Vietnam, with the following tasks and powers:
1. To elaborate then submit to the competent
agency(IES) for promulgation or promulgate according to its own competence
legal documents on legal consultancy practice by foreign lawyers organizations
in Vietnam;
2. To guide foreign lawyers’ organizations in
filling the procedures for applying for licenses to set up their respective
branches in Vietnam;
3. To grant, extend and change the contents of
the branch-setting up licenses;
4. To guide, examine and inspect the
organization and operation of the branches and foreign lawyers;
5. To assume the prime responsibility for
settling matters related to the legal consultancy practice by foreign lawyers’
organizations in Vietnam;
6. To handle violations as prescribed in Article
42 of this Decree.
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1. To inspect the organization and operation of
the branches;
2. To handle violations as prescribed in Article
43 of this Decree.
3. To request the competent State agency(IES) to
consider and settle matters related to the organization and operation of the
branches.
Article 38.- The
Justice Services of the provinces and centrally-run cities where the branch
offices are located shall have the following tasks and powers:
1. To effect the registration of practice, change
in the license contents and/or extension of operation duration, and monitor the
admission of legal consultancy trainees as well as the employment of Vietnamese
and foreign personnel by branches;
2. To monitor the probation of legal consultancy
trainees at branches;
3. To perform other managerial activities with
regard to branches’ legal consultancy practice under the direction and guidance
of the Ministry of Justice and the People’s Committees of the provinces and
centrally-run cities where branch offices are located;
4. To send biannual and annual reports to the
Ministry of Justice and the People’s Committees of the provinces and
centrally-run cities on the organization and operation of the branches within
their respective assigned competence and management scope.
Chapter V
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Article 39.- A foreign
lawyers’ organization’s branch that violates the provisions of this Decree
shall, depending on the seriousness of its violations, be subjected to the
following sanctioning forms:
1. A warning or a fine of VND 5,000,000 to
20,000,000 for one of the following acts:
a) Failing to buy professional liability
insurance for the branch’s lawyers practicing legal consultancy in Vietnam;
b) Employing laborers to work in the branch in
contravention of the provisions of this Decree and Vietnam’s labor legislation;
c) Failing to report or falsely reporting on the
branch’s organization and operation as prescribed;
d) Failing to register and/or publish on
newspapers the matters prescribed in Articles 15, 16 and 17 of this Decree;
e) Delaying the payment and/or the return of
office and working facilities it has hired in case of operation termination;
f) Erasing, wiping or modifying the
branch-setting up license;
g) Hiring out or lending the license;
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2. A fine of above VND 20,000,000 to 60,000,000
for one of the following acts:
a) Relocating its office from one province or
centrally-run city to another without permission;
b) Changing the name of the branch without
permission;
c) Changing the branch chief and/or the list of
lawyers without permission;
d) Causing difficulties and/or obstacles to the
inspection and examination by the competent State agency(IES);
e) Suspending and/or terminating its operation
without any notice;
f) Violating the regulations on the accounting
and statistical regime;
g) Opening and using accounts in contravention
of regulations.
3. A fine of above VND 60,000,000 to 100,000,000
for one of the following acts:
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b) Practicing legal consultancy after the right
to use the license to set up branch in Vietnam is deprived for a limited period
of time;
c) Employing foreign lawyer(s) to work for the
branch without permission;
d) Practicing legal consultancy outside the
contents and fields stated in the license.
4. In cases where a branch commits violation
acts prescribed in Clauses 1 and 2 of this Article, which involve aggravating
circumstances, it shall be fined at the highest level of the fine bracket, and
at the same time it may be deprived of the right to use the license to set up
the branch in Vietnam for a limited period of time.
In cases where the branch commits violation acts
prescribed in Clause 3 of this Article which involve aggravating circumstances,
it shall be subject to a fine of VND 100,000,000 and may be deprived of the
right to use the license to set up the branch in Vietnam for a limited period
of time.
Article 40.- Foreign
organizations and/or individuals that practice legal consultancy in Vietnam in
any forms without license stipulated in this Decree shall be compelled to
terminate their practice, subject to a fine of VND 100,000,000 each and have
their profits from the legal consultancy confiscated.
Article 41.- Foreign
lawyers who violate provisions of this Decree shall, depending on the seriousness
of their violations, be warned, suspended from practice for a certain period of
time, banned from practicing legal consultancy in Vietnam or examined for penal
liability according to Vietnamese law.
Article 42.- The
Ministry of Justice shall be entitled to apply the sanctioning form of practice
suspension for a limited period of time or ban from practicing legal
consultancy in Vietnam against foreign lawyers, and deprive the right to use
the licenses to set up branches of foreign lawyers’ organizations in Vietnam at
the requests of the People’s Committees of the provinces and centrally-run
cities.
Article 43.- The
People’s Committees of the provinces and centrally-run cities where the branch
offices are located shall be entitled to serve warnings or impose fines of up
to VND 100,000,000 against violation acts committed by organizations and
individuals as prescribed in this Decree.
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Article 44.- Vietnamese
State officials and employees who, while performing their duties, violate the
provisions of this Decree shall, depending on the seriousness of their
violations, be disciplined or examined for penal liability.
Vietnamese citizens who violate provisions of
this Decree shall, depending on the seriousness of their violations, be
administratively sanctioned or examined for penal liability as prescribed by
law.
Article 45.- Persons
who are administratively sanctioned or disciplined shall be entitled to lodge
complaints against the sanctioning or discipline decisions to the competent
State agency(IES) according to law.
Chapter VI
IMPLEMENTATION PROVISIONS
Article 46.- This
Decree shall also apply to the legal consultancy practice in Vietnam by lawyers
who are overseas Vietnamese and lawyers’ organizations established by them in
foreign countries.
Article 47.- This
Decree takes effect 15 days after its signing and replaces Decree No.42-CP of
July 8, 1995 of the Government promulgating the Regulation on legal consultancy
by foreign lawyers’ organizations in Vietnam.
The previous stipulations on legal consultancy
by foreign lawyers’ organizations in Vietnam, which are contrary to this
Decree, are now annulled.
Article 48.- The
ministers, the heads of the ministerial-level agencies, the heads of the
agencies attached to the Government and the presidents of the People’s
Committees of the provinces and centrally-run cities shall have to implement
this Decree.
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ON BEHALF OF THE
GOVERNMENT
PRIME MINISTER
Phan Van Khai