Thông tư 10/2005/TT-BNG

CIRCULAR

GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE GOVERNMENTS DECREE No. 06/2005/ND-CP OF JANUARY 19, 2005 ON THE ESTABLISHMENT AND OPERATION OF REPRESENTATIVE OFFICES OF FOREIGN COOPERATION AND RESEARCH ORGANIZATIONS IN VIETNAM

In furtherance of the Governments Decree No. 06/2005/ND-CP of January 19, 2005 on the establishment and operation of representative offices of foreign cooperation and research organizations in Vietnam (hereinafter referred to as the Decree for short), the Ministry of Foreign Affairs hereby guides the implementation as follows:

I. GENERAL PROVISIONS:

Scope and objects of regulation

1. This Circular guides the implementation of a number of articles of the Governments Decree No. 06/2005/ND-CP on the establishment and operation of representative offices of foreign organizations with a view to assisting the cooperation and research in specialized domains of science, technology, natural resources and environment, healthcare, social affairs and some other specialized domains between foreign governments and the Vietnamese Government not for profit.

2. This Circular shall not apply to the establishment and operation of representative offices of foreign cooperation and research organizations not under ministries, branches or local administrations of foreign countries.

3. Vietnamese managing agencies mean ministries, branches or Peoples Committees of provinces or centrally-run cities, which have direct partnership relations with foreign cooperation and research organizations (within the scope defined in Section 1).

4. This Circular shall not apply to foreign organizations operating in cultural and educational domains.

II. CONDITIONS AND PROCEDURES FOR GRANTING, AMENDING, SUPPLEMENTING, EXTENDING AND WITHDRAWING PERMITS

1. The grant of permits for establishment of representative offices shall be conducted after foreign organizations have their programs or projects approved by competent Vietnamese agencies and agreements or memoranda of understanding (MOU) on cooperation are signed between such organizations and Vietnamese managing agencies according to the contents prescribed in Article 18 of the Decree.

2. Specific numbers of foreigners and Vietnamese working at representative offices mentioned in Article 6, Clause 1(d) of the Decree mean the numbers of program officers and staffs regularly working at such offices within the duration of permits.

3. Relevant agencies defined in Article 8, Clause 1 of the Decree, which are consulted by the Ministry of Foreign Affairs when carrying out procedures for granting, amending, supplementing, extending or withdrawing permits, mean agencies in charge of State management over security and finance domains as well as over programs and projects.

4. Foreign organizations which apply for permits to set up representative offices, or for amendment, supplementation and extension thereof must submit the following dossiers provided that they fully meet the conditions specified in Articles 5 and 6 of the Decree:

A dossier of application for setting up of a representative office comprises:

a/ An application for setting up of a representative office with the contents provided for in the form Application for setting up of representative office in the Socialist Republic of Vietnam set by the Ministry of Foreign Affairs (not printed herein);

b/ The charter or operation regulation of the foreign organization applying for setting up of representative office;

c/ The document(s) of foreign managing ministry, branch or local administration, permitting the foreign organization to set up its representative office in Vietnam;

d/ The written certification of the foreign organizations legal person status, issued by the competent agency of the country where the foreign organization is headquartered;

e/ Programs or projects approved by competent Vietnamese agencies;

f/ The background of the person expected to be appointed chief representative in Vietnam;

g/ The letter of recommendation or the decision on appointment of the chief representative in Vietnam, made by the head of the ministry, branch or local administration managing such foreign organization;

A dossier of application for amendment, supplementation or extension of a permit comprises:

a/ An application for amendment, supplementation or extension of permit with the following principal contents:

+ Full name and address of the representative office.

+ Permit for setting up of the representative office (serial number, date and issuing agency).

+ Operation objectives, contents, scope and duration prescribed in the permit.

+ Reasons for amendment, supplementation or extension of the permit.

+ Contents of permit amendment, supplementation or extension.

b/ Enclosed supporting documents to ensure the feasibility of the permit amendment, supplementation or extension, including:

+ Dossier on the projected new location of the representative office, in case of office relocation.

+ Resume of the person expected to be new chief representative, in case of change of chief representative.

+ Documents on programs or projects or written commitments on amendments and/or supplements regarding cooperation between the foreign organization and the Vietnamese managing agency, in case of expansion of operation scope and prolongation of operation duration of the representative office.

5. Regarding withdrawal of permits:

At the request of either party to programs or projects, permits for setting up of representative offices shall be withdrawn in the following cases where: such representative offices operate not in accordance with the contents of granted permits; they violate the provisions of the Decree; they violate Vietnamese law; or such programs or projects terminate ahead of time.

III. ORDER OF GRANTING, AMENDING, SUPPLEMENTING, EXTENDING AND WITHDRAWING PERMITS

1. A foreign organization which applies for setting up of a representative office, amendment, supplementation and extension of permit must compile 3 (three) dossier sets according to the provisions of Section II, Clause 4 of this Circular and submit them directly to the Ministry of Foreign Affairs (the Department for International Organizations). The dossier-receiving agency must have a monitoring book and hand receipts upon fully receiving valid dossiers.

2. Before issuing decisions according to its competence, the Ministry of Foreign Affairs shall consult with Vietnamese managing agencies, concerned ministries and agencies, and Peoples Committees of provinces or centrally-run cities where representative offices are expected to be located in case of grant of new permits or where representative offices are located in case of application for amendment, supplementation or extension of permits. In case of divergent opinions, the Ministry of Foreign Affairs shall propose the Prime Minister to consider and decide on the approval of grant, amendment, supplementation or extension of permits. The Ministry of Foreign Affairs shall notify results of consideration and approval to the concerned foreign organizations within 30 days after receiving complete and valid dossiers.

3. The Ministry of Foreign Affairs shall consult with Vietnamese managing agencies, Peoples Committees of provinces or centrally-run cities where representative offices are located, the concerned ministries and agencies on the withdrawal of permits of foreign organizations. The Ministry of Foreign Affairs shall have to notify representative offices, Vietnamese managing agencies, concerned ministries and agencies and Peoples Committees of provinces or centrally-run cities where such representative offices are located of the termination of operation of representative offices 30 days in advance if such representative offices terminate operation upon the expiration of duration inscribed in their permits or under decisions on permit withdrawal or at the request of such representative offices.

4. Within 90 days after the expiration of their permits or after being notified to terminate their operation, representative offices must complete the liquidation of dissolution procedures related to head offices, residential houses, employees, working facilities, the payment of debts (if any), the fulfillment of financial obligations and other matters to concerned organizations and individuals in Vietnam. In special cases, with approvals of the Ministry of Foreign Affairs and Vietnamese managing agencies, this time limit may be prolonged, but must not exceed one year.

IV. MECHANISM FOR COORDINATION BETWEEN THE MINISTRY OF FOREIGN AFFAIRS AND MANAGING AGENCIES, PEOPLES COMMITTEES OF PROVINCES OR CITIES WHERE FOREIGN ORGANIZATIONS APPLY FOR SETTING UP OF REPRESENTATIVE OFFICES AS WELL AS CONCERNED MINISTRIES AND AGENCIES IN THE GRANT, AMENDMENT, SUPPLEMENTATION, EXTENSION AND WITHDRAWAL OF PERMITS

1. Vietnamese managing agencies shall consult with the Ministry of Foreign Affairs and concerned ministries or agencies on contents of written agreements between Vietnamese managing agencies and concerned foreign organizations.

2. After receiving complete and valid dossiers of application for grant, amendment, supplementation or extension of permits, the Ministry of Foreign Affairs shall consult Vietnamese managing agencies, Peoples Committees of provinces or cities where foreign organizations have applied or will apply for setting up of representative offices and concerned ministries or agencies for their written opinions on the following matters:

a/ Situation of operation of the concerned foreign organizations in localities and opinions of Peoples Committees of provinces or cities where foreign organizations have applied or will apply for setting up of representative offices.

b/ Situation of operation of foreign organizations which have programs or projects related to their ministries or branches and opinions of Vietnamese managing agencies and concerned ministries or agencies on applications for setting up representative offices, amendment, supplementation or extension of permits of foreign organizations; verification of personal identifications and political stances of persons expected to be chief representatives in Vietnam.

Within 15 days after receiving official letters for their comments, Vietnamese managing agencies, Peoples Committees of provinces or cities where foreign organizations have applied or will apply for setting up of representative offices, concerned ministries or agencies shall reply in writing the Ministry of Foreign Affairs on the above-said matters.

3. In the course of examination of dossiers of application for grant, amendment, supplementation or extension of permits, when deeming it necessary, the Ministry of Foreign Affairs shall assume the prime responsibility for, and coordinate with Vietnamese managing agencies, concerned ministries or agencies in, sending working teams to conduct on-spot inspection of operation of representative offices.

4. Before issuing decisions on permit withdrawal, the Ministry of Foreign Affairs shall consult the concerned Vietnamese managing agencies, Peoples Committees of provinces or cities where representative offices are located, concerned ministries or branches for their opinions on decisions on temporary suspension or termination of operation of such representative offices in cases where they operate not in accordance with their permits, or violate the provisions of this Decree and Vietnamese law.

V. RIGHTS AND RESPONSIBILITIES OF REPRESENTATIVE OFFICES IN VIETNAM

1. Interests:

a/ After being granted permits, representative offices may rent working offices, residential houses and recruit Vietnamese people to work for their offices according to provisions of Vietnamese law;

b/ Representative offices, chief representatives and their foreign staff members shall enjoy tax preferences according to relevant current provisions of Vietnamese law applicable to representations of international organizations in Vietnam.

2. Obligations and responsibilities of representative offices:

a/ Chief representatives shall have to abide by the provisions of Article 14 of the Decree. Representative offices shall have to observe the regime of biannually and annually reporting respectively on June 15 and December 15 to the Ministry of Foreign Affairs and concerned Vietnamese managing agencies. Periodical reports must have the contents prescribed in the form enclosed with this Circular (not printed herein).

b/ The numbers of foreigners and Vietnamese staff members working for a representative office must not exceed those specified in its permit. If the representative office wishes to increase its staff members, it must be permitted by the concerned Vietnamese managing agency.

c/ Chief representatives shall have to guarantee that none of their staff members conduct profit-generating activities or any other activities irrelevant to the survey and execution of programs and projects stated in the applications for setting up of representative offices.

d/ Chief representatives shall have to guarantee that relatives and persons accompanying staff members of their offices do not conduct professional activities without permission of concerned Vietnamese managing agencies.

e/ Chief representatives shall have to guarantee that representative offices staff members and their relatives strictly observe Vietnamese law and respect Vietnamese customs and practices.

f/ Foreign officials and staffs working at representative offices are obliged to pay income tax according to current provisions of Vietnamese law.

VI. RESPONSIBILITIES OF STATE MANAGEMENT AGENCIES TOWARD REPRESENTATIVE OFFICES

1. The Ministry of Foreign Affairs shall assist the Government in performing the uniform State management over representative offices, coordinate with Vietnamese managing agencies, Peoples Committees of provinces or cities where foreign organizations locate their representative offices and concerned ministries or agencies in performing the State management over representative offices according to the provisions of Articles 15, 16 and 17 of the Decree and have responsibilities:

a/ To guide procedures for applying for permits;

b/ To gather written opinions of the concerned Vietnamese agencies managing branches or domains in which representative offices operate, Peoples Committees of provinces or cities where foreign organizations apply to set up their representative offices, and concerned ministries or agencies, when considering the grant, amendment, extension, temporary suspension or withdrawal of permits;

c/ To contribute opinions to Vietnamese managing agencies on contents of MOU;

d/ Vietnamese managing agencies, Peoples Committees of provinces or cities where foreign organizations locate their representative offices, concerned ministries and agencies shall have to make reports on operation of representative offices and send them to the Ministry of Foreign Affairs within the first week of December every year for sum-up in annual reports to be submitted to the Prime Minister.

2. Vietnamese managing agencies defined in Article 16 of the Decree shall have the responsibilities:

a/ To reply in writing the Ministry of Foreign Affairs on branches or domains in which representative offices operate in the course of consideration for grant, extension, amendment or withdrawal of permits;

b/ To assume the prime responsibility for compiling and signing agreements with concerned foreign organizations according to the contents prescribed in Article 18 of the Decree;

c/ To guide and settle requests of representative offices concerning specialized domains and matters related to legal procedures for representative offices to be set up and operate in accordance with law;

d/ To guide local Services, departments and sectors in the branches or domains under their respective management in managing activities of representative offices;

e/ To monitor, urge and inspect activities of representative offices in domains or branches under their respective management;

f/ To send annual reports on operations of representative offices to the Ministry of Foreign Affairs, which shall later sum up and report them to the Prime Minister.

3. The Peoples Committees of the provinces or centrally-run cities where foreign organizations locate their representative offices defined in Article 17 of the Decree shall have the responsibilities:

a/ To create favorable conditions for and manage activities of representative offices according to their respective State management functions and powers;

b/ To reply in writing to the Ministry of Foreign Affairs upon considering the setting up of representative offices and withdrawal of permits;

c/ To send annual reports on operations of representative offices to the Ministry of Foreign Affairs, which shall later sum up and report them to the Prime Minister.

4. Concerned ministries and agencies shall have the responsibilities:

a/ To reply in writing the Ministry of Foreign Affairs on branches or domains in which representative offices operate in the course of consideration for grant, extension, amendment and withdrawal of permits;

b/ To guide local Services, departments and sectors in the branches or domains under their respective management in managing activities of representative offices;

c/ To monitor, urge and inspect activities of representative offices in domains or branches under their respective management;

d/ To send annual reports on activities of representative offices to the Ministry of Foreign Affairs, which shall later sum up and report them to the Prime Minister.

VII. IMPLEMENTATION PROVISIONS

This Circular takes effect 15 days after its publication in CONG BAO.

Any problems arising in the course of implementation of the Decree should be promptly reported by concerned ministries, localities and units to the Ministry of Foreign Affairs for study, amendment and supplementation when it deems necessary.