Circular No. 06/2003/TT-BTP of October 29, 2003, guiding a number of the provisions of the Government's Decree No. 87/2003/ND-CP dated July 22, 2003 on professional practice by foreign lawyers' organizations and foreign lawyers in Vietnam đã được thay thế bởi Decree of Government No.28/2007/ND-CP of February 26, 2007 detailing and guiding the implementation of a number of articles of The Law on Lawyers và được áp dụng kể từ ngày 21/03/2007.
Nội dung toàn văn Circular No. 06/2003/TT-BTP of October 29, 2003, guiding a number of the provisions of the Government's Decree No. 87/2003/ND-CP dated July 22, 2003 on professional practice by foreign lawyers' organizations and foreign lawyers in Vietnam
THE MINISTRY OF JUSTICE | OF |
, October 29, 2003 |
CIRCULAR
< span="">87/2003/ND-CP DATED JULY 22, 2003 ON PROFESSIONAL PRACTICE BY FOREIGN LAWYERS' ORGANIZATIONS AND FOREIGN LAWYERS IN
Pursuant to the Government's Decree No. 62/2001/ND-CP dated June 6, 2003 on the functions, tasks, powers and organizational structure of the Ministry of Justice;
Pursuant to the provisions of Articles 47 and 58 of the Government's Decree No. 87/2003/ND-CP dated July 22, 2003 on professional practice by foreign lawyers' organizations and foreign lawyers in Vietnam;
The Ministry of Justice hereby guides the implementation of a number of provisions of the Government's Decree No. 87/2003/ND-CP dated July 22, 2003 on professional practice by foreign lawyers' organizations and foreign lawyers in Vietnam (hereinafter referred to as Decree No. 87/2003/ND-CP for short) as follows:
1. Regarding foreign lawyers' organizations, foreign lawyers
1.1. Foreign lawyers' organizations mentioned in Decree No. 87/2003/ND-CP are the law-practicing organizations lawfully established and operating in foreign countries.
1.2. Papers proving the lawful establishment of foreign lawyers' organizations prescribed in Clause 2 of Article 12, Clause 2 of Article 14 and Clause 2 of Article 17 of Decree No. 87/2003/ND-CP are any of the following types of papers:
a) The establishment licenses, the operation registration papers granted by foreign competent agencies or organizations;
b) Partnership contracts, company charters;
c) Written certifications issued by foreign competent agencies or organizations of the lawful establishment and operation.
1.3. Foreign lawyers mentioned in Decree No. 87/2003/ND-CP are foreigners or overseas Vietnamese who possess law-practicing licenses granted by foreign competent agencies or organizations.
Where Vietnamese citizens permanently residing in possess law-practicing licenses granted by foreign competent agencies or organizations and wish to practice law as foreign lawyers in , they must observe the provisions of Decree No. 87/2003/ND-CP.
2. Regarding Vietnamese lawyers' organizations, Vietnamese lawyers
2.1. Vietnamese lawyers' offices and law partnerships mentioned in Decree No. 87/2003/ND-CP are lawyers' offices and law partnerships established and operating under the provisions of the 2001 Ordinance on Lawyers;
2.2. Vietnamese lawyers are those who have joined bar associations and possess law-practicing certificates according to the provisions of the 2001 Ordinance on Lawyers.
3. Regarding the dossiers of application for the establishment of branches, foreign lawyers' firms, foreign-Vietnamese law partnerships (hereinafter referred collectively to as foreign law-practicing organizations in )
3.1. If wishing to establish foreign law-practicing organizations in , foreign lawyers' organizations must compile dossiers as prescribed in Decree No. 87/2003/ND-CP
3.2. Where two or more than two foreign lawyers' organizations apply to jointly set up a foreign law firm in , their applications therefor must be signed by the heads of the foreign lawyers' organizations or the persons authorized by the heads of the foreign lawyers' organizations.
3.3. If wishing to establish many branches in , the foreign lawyers' organizations must carry out the procedures of application for the establishment of each branch.
Each branch shall have only one working office in a province or centrally-run city where it is permitted to be opened.
3.4. The names of branches must include the word "branch", the names of the foreign lawyers' organizations and the names of the provinces or centrally-run cities where the branches are permitted to be opened.
The names of the foreign law firms must include the phrase "law firm" and the names of the foreign law firms.
The names of the foreign-Vietnamese law partnerships shall be selected by the foreign lawyers' organizations and the Vietnamese law partnerships but must include the phrase "law partnership".
4. Regarding the procedures of licensing the establishment of foreign law-practicing organizations in
4.1. Dossiers of application for the establishment of foreign law-practicing organizations in shall be sent to the Ministry of Justice. In case of necessity, the Ministry of Justice may request supplementation or clarification of information in the dossiers. The time limits for consideration of dossiers and licensing prescribed in Article 20 of Decree No. 87/2003/ND-CP are counted from the date the dossiers are completed.
4.2. The Judicial Assistance Department, the Ministry of Justice shall receive and verify the dossiers of application for the establishment of foreign law-practicing organizations in .
5. Regarding the procedures for changing the contents of the licenses for the establishment of foreign law-practicing organizations in
5.1. The foreign law-practicing organizations in shall change their names in the following cases:
a) The names of the foreign lawyers' organizations are changed under the law provisions of foreign countries;
b) The names of the Vietnamese law partnerships in the foreign-Vietnamese law partnerships are changed under the Vietnamese law provisions;
c) The names of the foreign law firms are changed in case of merger or consolidation of foreign law firms.
5.2. In case of change of heads of branches, directors of foreign law firms or directors of foreign-Vietnamese law partnerships, the application therefor must be enclosed with the documents appointing other lawyers to such posts.
5.3. Within 15 days after receiving the complete and valid dossiers, and fees, the Ministry of Justice shall issue written approvals of the changes in the licenses' contents; in case of refusal, it must state the reasons therefor in writing.
6. Regarding the establishment of branches of foreign law firms or foreign-Vietnamese law partnerships
6.1. Within 15 days after receiving the decisions permitting the establishment of their branches, foreign law firms or foreign-Vietnamese law partnerships must register their branches' operation at the provincial/municipal Justice Services of the localities where the branches' offices are based.
6.2. Within 10 days after receiving the complete and valid dossiers and fees, the provincial/municipal Justice Services shall have to grant operation registration papers to the branches of foreign law firms or foreign-Vietnamese law partnerships.
7. Regarding the dossiers of consolidation of foreign law firms
7.1. Two or more foreign law firms may reach agreement on consolidating themselves into a new foreign law firm.
A dossier of consolidation of foreign law firms consists of the following papers:
a) The application for consolidation;
b) The copies of the establishment licenses of the foreign law firms applying for consolidation;
c) The copy of the consolidation contract;
d) The written agreement appointing the director of the new foreign law firm.
7.2. Within 10 days after receiving the complete and valid dossiers and fees, the Ministry of Justice shall approve the consolidation in the form of granting the licenses for the establishment of the new foreign law firms.
7.3. Within 15 days after being granted the licenses for the establishment of the new foreign law firms, the foreign law firms applying for consolidation shall have to return their establishment licenses to the Ministry of Justice, their operation registration papers to the provincial/municipal Justice Services, and their seals to the agencies competent to grant such seals.
8. Regarding the procedures of merger of foreign law firms
8.1. One or more than one foreign law firm may be merged into another foreign law firm. In case the merger results in changes in one of the contents of the establishment licenses of the merging foreign law firms, these firms must carry out the procedures for changes in their licenses' contents as prescribed in Article 23 of Decree No. 87/2003/ND-CP.
8.2. Within 15 days after the date of merger, the merged foreign law firms must return their establishment licenses to the Ministry of Justice, their operation registration papers to the provincial/municipal Justice Services, and their seals to the agencies competent to grant such seals.
9. Regarding the temporary cessation of the foreign law-practicing organizations' operation in
9.1. If deciding on their own to temporarily cease their operation, the foreign law-practicing organizations must send written notices thereon to the Ministry of Justice at least 30 days before the date on which they plan to temporarily cease their operation. Such notices must clearly state the reasons for, and the duration of, the temporary cessation of operation.
The maximum duration of temporary cessation of operation of foreign law-practicing organizations in shall be one year each and may be considered for a single extension not exceeding one year.
9.2. Where the foreign law-practicing organizations in are forced to temporarily cease their operation for a given period of time as they have been sanctioned for administrative violations, the duration of temporary cessation of operation shall be inscribed in the decisions sanctioning such administrative violations.
10. Regarding the employment of Vietnamese probationary lawyers
10.1. When receiving Vietnamese probationary lawyers to practice law on probation, the foreign law-practicing organizations in shall appoint foreign lawyers or Vietnamese lawyers to supervise such probationary lawyers.
10.2. Vietnamese probationary lawyers to practice law on probation in the foreign law-practicing organizations in must not participate in any legal proceedings in the capacity as defense counselors or representatives of clients before Vietnamese courts.
Probationary lawyers may provide legal consultancy and other legal services to clients under the assignment by the supervising lawyers upon the clients' consent and must be responsible for the quality of their performed work to the supervising lawyers and the foreign law-practicing organizations in . Probationary lawyers must not sign legal consultancy documents.
11. Regarding the scope of professional practice by foreign lawyers in
11.1. Foreign lawyers who have been granted the licenses to practice law in and possess Vietnamese law bachelor diplomas shall be granted by the Ministry of Justice the certificates of eligibility for providing consultancy on Vietnamese laws.
11.2. A dossier of application for a certificate of eligibility for providing consultancy on Vietnamese laws consists of the following papers:
a) The application for a certificate of eligibility for providing consultancy on Vietnamese laws;
b) A copy of the Vietnamese law bachelor's diploma;
c) A copy of the foreign lawyer's license to practice law in .
11.3. Within 30 days after receiving the valid dossiers, the Ministry of Justice shall grant the certificates of eligibility for providing consultancy on Vietnamese laws to the applying foreign lawyers; in case of refusal, it must clearly state the reasons therefor in writing.
11.4. The certificates of eligibility for providing consultancy on Vietnamese laws shall be valid in the effective duration of the foreign lawyer's licenses to practice law in .
12. Regarding the examination of the organization and operation of foreign law-practicing organizations in
12.1. Annually, the provincial/municipal Justice Services shall examine the organization and operation of foreign law-practicing organizations in .
The provincial/municipal Justice Services may conduct unexpected examinations at the request of the Ministry of Justice or the provincial/municipal People's Committees.
12.2. The to be-examined foreign law-practicing organizations shall be informed of the examinations 7 days in advance, except for cases of unexpected examinations.
12.3. The foreign law-practicing organizations in must strictly abide by the examination decisions and create favorable conditions for the examinations.
13. Regarding the reporting regime
13.1. Biannually and annually, the foreign law-practicing organizations in must report in writing on their organization and operation to the provincial/municipal Justice Services and the Ministry of Justice. Biannual reports shall be sent before October 1 and annual reports before March 31 of the subsequent year.
13.2. In case of necessity, the Ministry of Justice may request the foreign law-practicing organizations in to report unexpectedly on their organization and operation in .
14. Regarding the regime of commendation of foreign lawyers and foreign law-practicing organizations in
14.1. Foreign lawyers and foreign law-practicing organizations in that have continuously practiced law for 5 years or more, recorded outstanding achievements in their professional activities and made great contributions in the field of cooperation with Vietnamese agencies and/or organizations shall be considered for commendation.
14.2. The procedures and forms of commendation shall comply with law provisions.
15. Regarding the transitional provisions
15.1. Foreign lawyers' organizations which have been granted the licenses to establish their branches in under the provisions of Decree No. 92/1998/ND-CP which remain effective, shall be allowed to continue their professional practice till the expiry of their permits.
After the expiry of their licenses, if the foreign lawyers' organizations wish to continue practicing law in in the form of branches, they must send to the Ministry of Justice the applications for renewal of the licenses to establish branches. Within 30 days after receiving such applications, the Ministry of Justice shall approve the renewal of the licenses to establish branches in the form of granting new licenses.
After being granted the new licenses, the concerned branches shall carry out the procedures of operation registration, post on the newspapers the announcements on their establishment under the provisions of Articles 21 and 22 of Decree No. 87/2003/ND-CP; and shall, within 15 days, return the granted licenses to establish branches to the Ministry of Justice and the operation registration papers granted under the provisions of Decree No. 92/1998/ND-CP to the provincial/municipal Justice Services.
15.2. If the foreign lawyers' organizations which have been granted by the Ministry of Justice the licenses to establish branches in Vietnam under the provisions of Decree No. 92/1998/ND-CP wish to transform their branches into foreign law firms, they must compile dossiers of application for such transformation and send them to the Ministry of Justice.
A dossier of application for transformation consists of the following papers:
a) The application of transformation of a branch into a foreign law firm;
b) A copy of the license for the establishment of the branch in ;
c) The charter of the foreign law firm;
d) The decision appointing the director of the foreign law firm.
Within 30 days after receiving the complete and valid dossiers and fees, the Ministry of Justice shall approve the transformation in the form of granting the licenses for the establishment of the foreign law firms; in case of refusal, it must clearly state the reasons therefor in writing.
After being granted the licenses, the foreign law firms shall carry out the procedures of operation registration, post on the newspapers the announcements on their establishment under the provisions of Article 21 and 22 of Decree No. 87/2003/ND-CP; and shall, within 15 days, return the granted licenses to open branches to the Ministry of Justice and the operation registration papers granted under the provisions of Decree No. 92/1998/ND-CP to the provincial/municipal Justice Services, and their seals to the agencies competent to grant such seals.
The foreign law firms shall enjoy legitimate rights and interests, be responsible for unpaid debts, legal service contracts being performed, < p="">
15.3. For Vietnamese law bachelors who are practicing legal consultancy on probation in the branches of the foreign lawyers' organizations under the provisions of Decree No. 92/1998/ND-CP their period of probationary practice of legal consultancy in the branches before the effective date of Decree No. 87/2003/ND-CP shall be included into their probationary duration as prescribed by the Ordinance on Lawyers when such persons join bar associations.
As from the effective date of Decree No. 87/2003/ND-CP the regulations on the probationary practice of legal consultancy at the foreign law-practicing organizations in Vietnam shall only be applicable to the probationary lawyers of Vietnamese bar associations as prescribed in Article 34 of Decree No. 87/2003/ND-CP Vietnamese law bachelors may work for the foreign law-practicing organizations in Vietnam in the capacity as laborers according to the law provisions on labor.
16. To promulgate together with this Circular the forms of the following papers:
16.1.
b) The application for the establishment of a foreign law firm (form No. 1b);
c) The application for the establishment of a foreign-Vietnamese law partnership (form No. 1c);
16.2. The application for the establishment of a branch of the foreign law firm or foreign-Vietnamese law partnership (form No. 2);
16.3. The application for the consolidation of foreign law firms (form No. 3);
16.4. The application for the transformation of a branch into a foreign law firm (form No. 4);
16.5. The application for change of the contents of the license of the branch, foreign law firm or foreign-Vietnamese law partnership (form No. 5);
16.6. The application for a foreign lawyer's license to practice law in (form No. 6);
16.7. The application for a certificate of eligibility for providing legal consultancy on Vietnamese laws (form No. 7);
16.8. (form No. 8a);
b) The permit for the establishment of a foreign law firm in (form No. 8b);
c) The permit for the establishment of a foreign-Vietnamese law partnership in (form No. 8c);
16.9. (form No. 9a);
b) The operation registration paper of a foreign law firm in (form No. 9b);
c) The operation registration paper of a foreign-Vietnamese law partnership (form No. 9c).
16.10. The operation registration paper of a branch of the foreign law firm or a branch of the foreign-Vietnamese law partnership (form No. 10);
16.11. The foreign lawyer's license for professional practice in (form No. 11);
16.12. The certificate of eligibility for providing legal consultancy on Vietnamese laws (form No. 12);
16.13. < p="">
b) The notice on the temporary cessation of operation of a branch, foreign law firm or foreign-Vietnamese law partnership (form No. 13b);
c) The notice on the termination of operation of a branch, foreign law firm or foreign-Vietnamese law partnership (form No. 13c);
16.14. < p="">
b) The report on the organization and operation of foreign law-practicing organizations in localities (form No. 14b).
17. Implementation effect
This Circular takes effect 15 days after its publication in the Official Gazette.
This Circular replaces the Ministry of Justice's Circular No. 08/1999/TT-BTP dated February 13, 1999 guiding the implementation of a number of provisions of the Government's Decree No. 92/1998/ND-CP dated November 10, 1998 on the legal consultancy practice by foreign lawyers' organizations in Vietnam and the Ministry of Justice's Circular No. 02/2000/TT-BTP dated March 23, 2000 guiding the procedures for termination of operation of branches of foreign lawyers' organizations in Vietnam.
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