Quyết định 119/2009/QD-TTg

DECISION

PROMULGATING THE REGULATION ON FOREIGN EXPERTS IMPLEMEN­TING ODA PROGRAMS AND PROJECTS

THE PRIME MINISTER

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the May 24, 2005 Law on Conclusion of, Accession to, and Implementation of Treaties;
Pursuant to current tax laws;
Pursuant to the November 13, 2008 Law on Vietnamese Nationality;
Pursuant to the August 23, 1993 Ordinance on Privileges and Immunities for Foreign Diplomatic Missions and Consular Offices and Representative Offices of International Organizations in Vietnam;
Pursuant to the Government's Decree No. 131/2006/ND-CP of November 9, 2006, promulgating the Regulation on management and use of official development assistance (ODA);
At the proposal of the Minister of Planning and Investment,

DECIDES:

Article 1. To promulgate together with this Decision the Regulation on foreign experts implementing ODA program and projects in Vietnam (below referred to as the Regulation on foreign experts).

Article 2. This Decision takes effect on November 20, 2009, and replaces the Prime Minister's Decision No. 211/1998/QD-TTg of October 31, 1998, promulgating the Regulation on foreign experts implementing ODA programs and projects in Vietnam.

Article 3. The Ministry of Planning and Investment and the Ministry of Finance shall issue a joint circular to guide and inspect according to their functions the implementation of this Regulation.

Article 4. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of provincial-level People's Committees shall implement this Decision.

REGULATION

ON FOREIGN EXPERTS IMPLEMENTING ODA PROGRAMS AND PROJECTS
(Promulgated together with the Prime Minister's Decision No. 119/2009/QD-TTg of October 1, 2009)

Chapter I

GENERAL PROVISIONS

Article 1. Subjects and scope of application

1. This Regulation applies to foreign experts participating in the management and implementation of ODA programs and projects in Vietnam and their family members.

2. This Regulation is applicable to ODA-funded programs and projects.

Article 2. Principle of application

All foreign experts and their family members, regardless of their nationalities, will be treated equally and have their lawful assets and incomes which are earned during their working and stay in Vietnam protected by the Vietnamese State.

Article 3. Interpretation of terms

Some terms used in this Regulation are construed as follows:

1. "ODA program or project" means a program or project funded with ODA provided by the foreign party under the Governments Decree No. 131/2006/ND-CP of November 9, 2006.

2. "Foreign party" (ODA donor) includes foreign governments, bilateral institutional donors and transnational or inter-governmental institutions that provide ODA to a Vietnamese party for implementing a program or project in Vietnam.

3. "Vietnamese party" includes agencies in charge of state management of ODA: agencies managing ODA programs and projects: owners of ODA programs and projects and management boards of ODA programs and projects, in which:

a/ "Agencies in charge of state management of ODA" include agencies participating in the state management in the process of management and use of ODA, including the Ministry of Planning and Investment, the Ministry of Finance, the State Bank of Vietnam, the Ministry of Foreign Affairs, the Ministry of Justice, the Government Office, line agencies and People's Committees of provinces or centrally run cities where ODA programs and projects are implemented:

b/ "Agencies managing ODA programs and projects" (deciders of investment in investment projects or approvers of technical assistance projects, below referred to as project-managing agencies) means ministries, ministerial-level agencies, government-attached agencies, central bodies of socio-political organizations, professional organizations, agencies attached to the National Assembly, the Supreme People's Court, the Supreme People's Procuracy and People's Committees of provinces or centrally run cities (below collectively referred to as provincial-level People's Committees) that have ODA programs and projects;

c/ "ODA program and project owners" (investors of investment programs and projects, managers of technical assistance programs and projects, below collectively referred to as project owners) means units assigned by the Prime Minister or managing agencies to directly manage and use ODA and domestic capital for implementing these programs and projects according to contents approved by competent authorities, and manage and use works after these programs and projects are completed;

d/ "Management boards of ODA programs and projects" means units functioning to assist ODA program and project owners in managing the implementation of these programs and projects.

4. "Parties" include Vietnamese party, foreign party and foreign experts.

5. "Foreign expert" (below referred to as expert) means a person who does not have Vietnamese citizenship and enters Vietnam to provide professional and technical consultancy services or perform other jobs in service of the study, formulation, evaluation, surveillance, assessment, management and implementation of an ODA program or project under regulations or agreements in a treaty on ODA concluded between competent agencies of the Vietnamese party and the foreign party. Foreign experts enter Vietnam after:

a/ The foreign party recruits and enters into contracts with them or with their employing contractors (companies) which have listed them as consultants in these companies* bid documents based on bidding results approved by a competent authority of the foreign party and consented by the Vietnamese party;

b/ The Vietnamese party recruits and enters into contracts with them or with their employing contractors (companies) which have listed them as consultants in these companies' bid documents based on bidding results approved by a competent authority of the Vietnamese party and consented by the foreign party.

6. "Family members" means an expert's spouse and minor children or adult children who are incapable of working, live together with the expert in a household and have foreign citizenship and whom the expert has to support.

Article 4. Apart from enjoying the benefits provided for in this Regulation and other lawful interests provided for by Vietnamese law, experts and their family members shall fulfill all their obligations specified in this Regulation and other relevant legal documents.

Article 5. Competent agencies of the Vietnamese party and foreign party shall closely coordinate with each other in managing and employing experts while ensuring that experts and their family members enjoy their lawful interests and fulfill their obligations while working in Vietnam.

Chapter II

SPECIFIC PROVISIONS

Article 6. Incentives for experts

1. Visa incentive:

Experts and their family members will be granted Vietnamese visas for multiple entry and exit at the request of ODA program and project-managing agencies. Procedures for granting visas comply with current regulations.

Those experts and their family members who work and stay in Vietnam for 6 months or more may be considered for grant of multiple visas for their whole working duration of up to 3 years (if they so request).

In case of emergency, if the Vietnamese party finds it necessary to ensure security and safety for the life and assets of experts and their family members, these experts and their family members may leave Vietnam according to procedures applicable to foreign diplomats working in Vietnam and under the Ordinance on Entry, Exit and Residence by Foreigners in Vietnam.

2. Foreign exchange incentives:

Experts and their family members may bring foreign currencies into Vietnam under current

Vietnamese law; convert into foreign currencies and bring out of Vietnam their incomes from wages or remunerations for implementation of ODA programs and projects or other lawful incomes specified in Article 7 of this Regulation. Procedures for bringing foreign currencies in and out of Vietnam comply with the State Bank of Vietnam's regulations.

3. Residence and travel registration incentive:

Experts and their family members may travel freely and register their stay within the Vietnamese territory, except restricted areas.

4. Other incentives:

a/ Grant and renewal of driver licenses and registration of vehicle number plates: When entering Vietnam, experts and their family members may register for driving courses and tests at civil driver training schools and be granted driver licenses, and enjoy favorable conditions for driver license renewal and vehicle number plate registration under Vietnamese law;

b/ In case an expert or any of his/her family members violates Vietnamese law, and is therefore prosecuted, arrested, brought to trial, imprisoned, expelled from Vietnam or held jointly liable in legal proceedings, a representative of the foreign party that has sent or hired him/her and the diplomatic mission or consular office of the country of which he/she or his/her family member is a citizen shall be promptly notified thereof by the Vietnamese party and are allowed to visit him/her. He/she or his/her family member may invite lawyers under Vietnamese law.

Article 7. Immunities for experts

1. Exemption from import duty, value-added tax, excise tax (if any) and registration fee:

a/ Experts who are allowed to stay in Vietnam for less than 183 days are entitled to tax exemption when temporarily importing, importing or purchasing in Vietnam articles on the list provided in the Appendix to this Regulation (except automobiles and motorbikes) in specified quantities.

b/ Experts who are allowed to stay in Vietnam for 183 days or more are entitled to tax exemption when temporarily importing, importing or purchasing in Vietnam articles on the list provided and in quantities specified in the Appendix to this Regulation.

c/ Experts who temporarily import used automobiles and motorbikes shall comply with the conditions on, order of and procedures for, importing used automobiles and motorbikes prescribed in current Vietnamese laws.

d/ Re-export, export, transfer, donation or giving as gifts of automobiles and motorbikes:

- Experts shall re-export, export, transfer, donate or give as gifts automobiles and motorbikes at least 30 (thirty) days before their working terms in Vietnam expire as certified by project-managing agencies. If failing to do so, they shall carry out procedures for returning their vehicle number plates and annulling their vehicle registrations at traffic police offices and authorize their project-managing agencies to carry out re­export, export, transfer, donation or giving as gifts of their automobiles and motorbikes. These automobiles and motorbikes shall be kept at project-managing agencies;

- Experts who re-export automobiles and motorbikes which have been temporarily imported or export those which have been purchased free of duty in Vietnam are exempt from relevant duties, charges and fees under the Vietnamese State's current regulations;

- Experts may transfer, donate or give as gifts automobiles and motorbikes they have temporarily imported or purchased free of duty in Vietnam;

Experts who transfer, donate or give as gifts automobiles and motorbikes to other experts or persons eligible for diplomatic privileges and immunities or tax incentives under the Vietnamese State's regulations are exempt from relevant duties and charges;

In all other cases of transfer or donation, experts shall pay fully duties, charges and fees under Vietnamese law.

e/ For automobiles and motorbikes which are irreparably damaged in accidents, fires or natural disasters or lost, written certifications by Vietnamese police offices or competent assessment agencies or insurance agencies are required. Only experts who have a remaining duration of 183 days or more to implement ODA programs and projects in Vietnam may temporarily import or purchase free of duty in Vietnam other automobiles and motorbikes in replacement of damaged ones.

f/ Destruction of automobiles and motorbikes:

- If wishing to have their automobiles and motorbikes, which have been temporarily imported or purchased free of duty in Vietnam and are irreparably damaged in accidents, fires or natural disasters, destroyed, experts shall send written requests therefor to project-managing agencies based on written certifications by Vietnamese police offices or competent assessment agencies or insurance agencies;

- The destruction of automobiles and motorbikes may be carried out only when written consent of project-managing agencies is obtained and must comply with current provisions of law.

g/ Experts shall use articles allowed to be imported, temporarily imported or purchased free of duty in Vietnam for proper purposes and in compliance with Vietnamese law.

2. Income tax exemption:

During their working in Vietnam, foreign experts are exempt from personal income tax on their incomes from wages and remunerations for implementation of ODA programs and projects.

3. Vietnam-based assets lawfully owned by experts and their family members are free from acquisition, compulsory purchase or confiscation. The delivery of these assets to experts' home countries and the sale thereof in the Vietnamese territory comply with Vietnamese laws.

4. Other immunities:

During their stay in Vietnam:

a/ Experts and their family members are exempt from personal contributions to the public welfare, national defense and security of the Vietnamese State.

b/ Experts are exempt from professional registration, practice license and work permit.

Article 8. Responsibilities of the parties

1. Responsibilities of the Vietnamese party

a/ The project owner shall:

- Support and assure the enjoyment of lawful interests and fulfillment of obligations of experts and their family members during their working and stay in Vietnam;

- Coordinate with the foreign party in managing and evaluating experts during the project implementation, ensuring their fulfillment of obligations and responsibilities specified in expert employment contracts;

– Propose handling measures to the project-managing agency and the foreign party in case the work or conducts of experts and their family members fail to conform with agreements or commitments in expert employment contracts or a treaty on ODA concluded between the competent agency of the Vietnamese party and the foreign party;

- Support experts and coordinate with the project-managing agency and the foreign party in settling cases related to experts and their family members during their working and stay in Vietnam or the cases specified at Point b. Clause 4, Article 6 of this Regulation (if any);

- Notify the managing agency and concerned agencies of the expiration of experts' working durations in Vietnam 30 days in advance;

- Biannually and annually report to the managing agency on the management and employment of experts.

b/ The project-managing agency shall:

- Make written certifications of foreign experts and send them to concerned agencies for state management under current laws, and take responsibility for these certifications;

- Direct the project owner in effectively managing and employing experts;

- Coordinate with the Ministry of Planning and Investment and competent agencies of the Vietnamese party and foreign party in ensuring that experts and their family members enjoy other lawful interests and fulfill other obligations during their working and stay in Vietnam;

- Consider proposals of the project owner specified at Point a. Clause 1 of this Article and coordinate with the foreign party in issuing handling decisions;

- Coordinate with the Ministry of Public Security and the Ministry of Foreign Affairs or other functional agencies in settling affairs related to experts and their family members in cases of emergency and other cases specified in Clauses 1 and 4, Article 6 of this Regulation (if any);

- Sum up the management and employment of experts and annually report thereon to the Ministry of Planning and Investment.

c/ The Ministry of Planning and Investment, the Ministry of Finance, the State Bank of Vietnam, the Ministry of Foreign Affairs, the Ministry of Public Security and concerned competent agencies shall guide and assist project-managing agencies, project owners and foreign parties in implementing this Regulation regarding matters subject to their state management.

d/ The Ministry of Planning and Investment shall supervise and sum up the implementation of this Regulation and send annual reports thereon to the Prime Minister.

2. Responsibilities of the foreign party:

a/ To select, nominate or employ experts at the request of the Vietnamese party;

b/ To provide necessary information for the Vietnamese party to evaluate selected expert candidates;

c/ To supply expert employment contracts to the Vietnamese party for monitoring and management:

d/ To coordinate with the Vietnamese party in handling cases related to experts and their family members during their working and stay in Vietnam or the cases specified in Clauses 1 and 4, Article 6 of this Regulation (if any).

3. Responsibilities of experts and their family members:

a/ To follow the guidance and submit to the management of competent Vietnamese agencies, respect and observe Vietnamese laws during their stay or working in Vietnam;

b/ To fulfill all obligations stated in contracts signed between the parties;

c/ Apart from jobs or activities agreed upon or prescribed in documents concluded by the parties, foreign experts are not allowed to practice their professions for any profit-making purposes in the Vietnamese territory, unless otherwise provided for by treaties to which the Socialist Republic of Vietnam is a contracting party.

Chapter III

ORGANIZATION OF IMPLEMENTATION

Article 9. Handling of violations

Organizations and individuals that commit acts in violation of this Regulation and other provisions of law shall, depending on the nature and severity of their violations, be disciplined, administratively handled or examined for penal liability. If causing damage, they shall pay compensations under Vietnamese law.

Article 10. Implementation responsibility

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of provincial-level People's Committees shall implement this Regulation.

APPENDIX

LIST OF COMMODITIES AND ARTICLES AND THEIR QUANTITIES NECESSARY FOR WORK AND DAILY LIFE OF FOREIGN EXPERTS IMPLEMENTING ODA PROGRAMS AND PROJECTS IN VIETNAM
(To the Regulation promulgated together with the Prime Minister's Decision No. 119/2009/QD-TTg of October 1, 2009)