Nghị định 100/2011/ND-CP

DECREE

PROVIDING THE ESTABLISHMENT AND OPERATION OF REPRESENTATIVE OFFICES OF FOREIGN TRADE PROMOTION ORGANIZATIONS IN VIETNAM

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the June 14, 2005 Commercial Law;

At the proposal of the Minister of Industry and Trade,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree provides the establishment and operation of representative offices of foreign trade promotion organizations in Vietnam (below referred to as representative offices).

Article 2. Subjects of application

1. This Decree applies to representative offices of foreign organizations including trade promotion organizations and other organizations carrying out trade promotion-related activities in Vietnam (below referred collectively to as foreign trade promotion organizations).

Foreign trade promotion organizations referred to in this Decree include governmental or non-governmental organizations, organizations belonging to unions, associations, etc., which are established under regulations of countries where they are headquartered, and carry out trade promotion-related activities in Vietnam to step up trade promotion from overseas into Vietnam and vice versa; support foreign enterprises to enter and operate in the Vietnamese market; research and provide economic, commercial and market information to foreign business organizations; boost foreign trade/cross-border trade with Vietnam and activities to link trade ties between overseas enterprises and enterprises in Vietnam.

2. This Decree does not apply to Vietnam-based representative offices of foreign traders, foreign non-governmental organizations, cooperation and research institutions, cultural and educational institutions and other foreign organizations stipulated in other legal documents.

Article 3. State management of activities of representative offices

1. The Ministry of Industry and Trade shall assist the Government in performing the unified state management of activities of representative offices, specifically as follows:

a/ To assume the prime responsibility for, and coordinate with ministries and ministerial-level agencies in, drafting and submitting to competent agencies for promulgation or promulgate according to its competence legal documents on representative offices;

b/ To guide and organize the grant, re-grant, modification, supplementation, extension and revocation of operation licenses of representative offices;

c/ To inspect and examine the management by provincial-level Industry and Trade Departments of activities of representative offices nationwide;

d/ To assume the prime responsibility for, and coordinate with related ministries and ministerial-level agencies and localities in, inspecting and examining representative offices when finding it necessary or at the request of ministries, sectors or localities;

e/ To assume the prime responsibility for, and coordinate with related ministries and ministerial-level agencies and localities in, building a database on representative offices nationwide;

f/ To handle violations of representative offices according to its competence.

Ministries and ministerial-level agencies shall, within the scope of their respective functions, tasks and powers, perform or coordinate with the Ministry of Industry and Trade in performing the state management of the establishment and operation of representative offices in their assigned fields.

Provincial-level People's Committees shall, within the scope of their tasks and powers, direct provincial-level Industry and Trade Departments in managing, overseeing, supervising, inspecting, examining and handling violations in activities of foreign trade promotion organizations in Vietnam in their localities in accordance with law.

Chapter II

ESTABLISHMENT AND OPERATION OF REPRESENTATIVE OFFICES

Article 4. Establishment of representative offices

1. A foreign trade promotion organization wishing to carry out trade promotion-related activities in Vietnam shall set up a representative office under this Decree.

A foreign trade promotion organization may establish no more than one (1) representative office in one province or centrally run city.

A representative office is a subsidiary of a foreign trade promotion organization. Establishment of a representative office under a representative office is prohibited.

4. Establishment of a representative office must be registered with a competent licensing agency defined in this Decree (below referred to as licensing agency).

Article 5. Conditions for establishing representative offices

A foreign trade promotion organization may be considered for being licensed to establish a representative office in Vietnam when meeting the following conditions:

1. Being an organization established under foreign laws.

2. Having a charter and operation principles and objectives for its representative office which are in accordance with Vietnamese law.

Article 6. Organization of representative offices

1. The organizational structure and chief of a representative office shall be determined by the foreign trade promotion organization itself and registered with the licensing agency.

2. The recruitment and appointment of foreigners to work at a representative office must comply with Vietnamese law and Vietnam's commitments in treaties to which Vietnam is a contracting party.

Article 7. Contents of operation of representative offices

1. A representative office may carry out trade promotion-related activities, including:

a/ Acting as a liaison office;

b/ Carrying out activities to step up trade promotion from abroad into Vietnam and vice versa; supporting foreign enterprises to enter and operate in the Vietnamese market; researching and providing economic, commercial and market information to foreign business organizations; boosting foreign trade/cross-border trade with Vietnam and activities to link trade ties between overseas enterprises and enterprises in Vietnam;

c/ Coordinating with Vietnamese agencies and organizations with the trade promotion function in carrying out trade promotion-related activities;

d/ Other trade promotion activities as provided by law.

2. Representative offices may not carry out profit-making activities directly in Vietnam.

Article 8. Notification of operation of representative offices

1. Within 45 days after being granted or re-granted an establishment license or having it modified, supplemented or extended, a representative office shall publish the following contents in a print or online newspaper licensed for circulation in Vietnam for three consecutive issues:

a/ Its name and address;

b/ Name and address of the head office of the foreign trade promotion organization;

c/ Its chief;

d/ Number, date of issue and term of its establishment license, licensing agency;

e/ Contents of its operation.

2. Within the time limit specified in Clause 1 of this Article, a representative office shall commence its official operation and notify the licensing agency, provincial-level People's Committee and Industry and Trade Department of the locality where it is based of the commencement of operation at the registered office.

Article 9. Opening of accounts

1. A representative office may open an account for foreign-currency expenditures and an account for expenditures in Vietnam dong of foreign-currency origin at a bank licensed to operate in Vietnam, and may only use these accounts for its activities.

2. The opening, use and closing of accounts of a representative office must comply with regulations of the State Bank of Vietnam.

Article 10. Operation reports

1. Annually, before the last working day of January, a representative office shall send a written report on its operation in the preceding year to the licensing agency.

2. A representative office shall make financial statements and statistical reports according to Vietnamese law.

3. In case of necessity or as required by Vietnamese law, a representative office shall report and provide documents or explain about matters related to its activities at the request of competent agencies specified in Article 3 of this Decree.

Article 11. Rights and obligations of representative offices and their chiefs

A representative office and its chief may exercise the following rights and shall fulfill the following obligations:

1. To operate strictly according to the content and scope of operation stipulated in the representative office establishment license.

2. To rent a working office and recruit employees for the representative office according to current Vietnamese taws.

3. To register and use a seal of the representative office according to current Vietnamese laws.

4. A representative office may neither act as representative for another trade promotion organization nor sub-lease its working office.

5. The chief of a representative office may not concurrently act as chief of a representative office of another foreign trader or organization in Vietnam.

6. Foreigners working at a representative office must have work permits as provided by Vietnamese law.

Article 12. Termination of operation of representative offices

1. A representative office shall terminate its operation in the following cases:

a/ It is so proposed by the foreign trade promotion organization and approved by the licensing agency;

b/ The foreign trade promotion organization terminates its operation under the law of the country where such organization is established;

c/ The term of operation indicated in the representative office establishment license expires but the foreign trade promotion organization makes no request for extension;

d/ The term of operation indicated in the representative office establishment license expires but the licensing agency disapproves its extension;

e/ The representative office establishment license is revoked under Clause 2, Article 23 of this Decree.

2. At least 30 days before the expected date of termination of operation of its representative office stipulated at Point a, b or c, Clause 1 of this Article, a foreign trade promotion organization shall send a notice of termination of operation to the licensing agency, creditors and employees of the representative office and other persons with related lights, obligations and interests. This notice must clearly state the expected time of termination of operation of the representative office and be publicly displayed at the working office of the representative office and published on a print or electronic newspaper permitted for circulation in Vietnam for three consecutive issues.

3. Within 15 days after the date of issuance of the decision on disapproving the extension of a representative office establishment license or revoking a license as stipulated at Point d or e, Clause 1 of this Article, the licensing agency shall announce on a print or electronic newspaper permitted for circulation in Vietnam for three consecutive issues the termination of operation of the representative office, clearly stating the time of termination.

4. Within 15 days after a foreign trade promotion organization and its representative office fulfill all obligations specified in Clause 2 or 3, Article 13 of this Decree, the licensing agency shall delete the name of the representative office in the registration book.

5. Within 15 days after the date of deletion of the name of a representative office, the licensing agency shall notify the termination of operation of the representative office to the provincial-level People's Committee and Industry and Trade Department, tax agency, statistics office and public security office of the locality where the representative office is based.

Article 13. Obligations of foreign trade promotion organizations toward their representative offices

1. A foreign trade promotion organization shall take responsibility before Vietnamese law for all activities of its representative office in Vietnam. If carrying out activities beyond the authorized scope of a representative office, its chief shall take responsibility for his/her own and his/her representative office's activities under Vietnamese law.

2. At least 15 days before a representative office terminates operation under Point a, b or c, Clause 1, Article 12 of this Decree, a foreign trade promotion organization and its representative office shall pay all debts and other liabilities to the State and related organizations and individuals under law.

3. Within 60 days after the dale of termination of operation of a representative office under Point d or e, Clause 1, Article 12 of this Decree, a foreign trade promotion organization shall pay all debts and other liabilities to the State and related organizations and individuals under law.

Chapter III

GRANT, RE-GRANT, MODIFICATION, SUPPLEMENTATION AND EXTENSION OF LICENSES FOR ESTABLISHMENT OF REPRESENTATIVE OFFICES

Article 14. Order and time limit for grant of licenses for establishment of representative offices

1. A foreign trade promotion organization shall send one set of dossier of application for a license to establish a representative office to the Ministry of Industry and Trade (the Vietnam Trade Promotion Agency).

2. Within 20 days after receiving a complete and valid dossier, the licensing agency shall consider and grant to the foreign trade promotion organization a representative office establishment license and send a copy thereof to the People's Committee of the province or centrally run city (below referred collectively to as provincial-level People's Committee), the provincial-level Industry and Trade Department, tax agency, statistics office and public security office of the locality where the representative office is based. If refusing to grant a license, the licensing agency shall reply in writing, clearly stating the reason.

3. In case a dossier is invalid, within three working days after receiving it, the licensing agency shall notify such in writing to the foreign trade promotion organization for supplementation and completion of the dossier.

4. The time limits mentioned in Clauses 2 and 3 of this Article do not include the time for a foreign trade promotion organization to modify and supplement its dossier of application.

5. A representative office establishment license has a term of up to five years, which must, however, not exceed the remaining period of the establishment license or paper of equivalent validity of the foreign trade promotion organization in case the law of the country where such organization is established provides the validity term of an establishment license.

Article 15. Dossiers of application for representative office establishment licenses

1. A dossier of application for a representative office establishment license comprises:

a/ The application for a representative office establishment license, made according to a set form and signed by a competent representative of the foreign trade promotion organization;

b/ The document of a competent foreign state agency permitting the establishment of a representative office in Vietnam;

c/ A copy of the establishment license or paper of equivalent validity of the foreign trade promotion organization, certified by a competent agency in the country where the foreign trade promotion organization is established;

d/ A copy of the charter or operation regulation of the foreign trade promotion organization;

e/ The tentative charier or operation regulation of the representative office in Vietnam;

f/ The report on last year's activities of the foreign trade promotion organization and activities to be carried out in Vietnam;

g/ The resume of the expected chief of the representative office and his/her appointment document;

2. The documents specified at Points b, c, d, e, f and g, Clause 1 of this Article must have Vietnamese translations consularly legalized under law.

Article 16. Cases of non-grant of representative office establishment licenses

The licensing agency shall not grant a license to a foreign trade promotion organization in the following cases:

1. The foreign trade promotion organization fails to fully meet the conditions specified in Article 5 of this Decree;

2. The foreign trade promotion organization does business in goods and services;

3. The foreign trade promotion organization applies for a representative office establishment license within two years after it has such license revoked under Clause 2, Article 23 of this Decree;

4. There is evidence that the establishment of a representative office will be detrimental to Vietnam's national defense, security, social order or safety, historical or cultural traditions, ethics or fine customs and practices or people's health, or will destroy natural resources or pollute the environment;

5. The dossier of application is invalid and is not completed as requested by the licensing agency;

6. Other cases as provided by law.

Article 17. Modification and supplemen­tation of representative office establishment licenses

1. Within 10 working days after any of the following changes occurs, a foreign trade promotion organization shall send one set of dossier of request for modification or supplemen­tation of the representative office establishment license to a competent agency for carrying out license modification or supplementation procedures:

a/ Change of the chief of the representative office:

b/ Relocation of the head office of the foreign trade promotion organization;

c/ Relocation of the head office of the representative office within a province or centrally run city;

d/ Change of the name or operation of the representative office indicated in its license.

2. A dossier of request for modification or supplementation of a representative office establishment license comprises:

a/ A written request for modification or supplementation of a representative office establishment license, made according to a set form and signed by a competent representative of the foreign trade promotion organization;

b/ A copy (not necessarily notarized) of the license.

3. Within 10 working days after receiving a valid dossier of a foreign trade promotion organization, the licensing agency shall modify or supplement the license and send copies of the modified or supplemented license to agencies defined in Clause 2, Article 14 of this Decree.

Article 18. Re-grant of representative office establishment licenses

1. Within 15 days after any of the following cases occurs, a foreign trade promotion organization shall send one set of dossier of application for re-grant of a representative office establishment license to the licensing agency:

a/ Relocation of the head office of the representative office from one province or centrally run city to another;

b/ Change of the name or place of registration of establishment of the foreign trade promotion organization from one country to another;

c/ Change of operation of the foreign trade promotion organization.

2. In case the representative office establishment license is lost, torn or destroyed, immediately after such event occurs, a foreign trade promotion organization shall carry out procedures for the re-grant thereof at the licensing agency.

Article 19. Dossiers of request for re-grant of representative office establishment licenses

1. A dossier of request for re-grant of a representative office establishment license in the case specified at Point a, Clause 1, Article 18 of this Decree comprises:

a/ A written request for re-grant of a representative office establishment license, made according to a set form and signed by a competent representative of the foreign trade promotion organization;

b/ A copy (not necessarily notarized) of the license.

2. A dossier of request for re-grant of a representative office establishment license in the case specified at Point b or c, Clause 1, Article 18 of this Decree comprises:

a/ A written request for re-grant of a representative office establishment license, made according to a set form and signed by a competent representative of the foreign trade promotion organization;

b/ A copy of the establishment registration paper or a paper of equivalent validity of the foreign trade promotion organization, certified by a competent agency of the place where the foreign trade promotion organization is established or registers its business. This copy must be translated into Vietnamese and consularly legalized under Vietnamese law;

c/ A copy (not necessarily notarized) of the license.

3. A dossier of request for re-grant of a representative office establishment license in the case specified in Clause 2, Article 18 of this Decree comprises:

a/ A written request for re-grant of a representative office establishment license, made according to a set form and signed by a competent representative of the foreign trade promotion organization;

b/ A copy (not necessarily notarized) of the license.

Article 20. Extension of representative office establishment licenses

1. A foreign trade promotion organization may have its representative office establishment license extended when fully meeting the following cases:

a/ It wishes to continue operation in Vietnam in the form of representative office;

b/ It still operates under the law of the country where it is established;

c/ It commits no violation of Vietnamese law concerning the operation of representative offices.

2. A dossier of request for extension of a representative office establishment license comprises:

a/ A written request for extension of the representative office establishment license, made according to a set form and signed by a competent representative of the foreign trade promotion organization;

b/ The last year's audited financial statement or another document of equivalent validity evidencing the actual existence and operation of the foreign trade promotion organization. The papers mentioned at this Point must be translated into Vietnamese and certified and consularly legalized by an overseas Vietnamese diplomatic representative mission or consulate under Vietnamese law;

c/ The representative office's activity report as of the time of request for extension;

d/ The original of the granted representative office establishment license,

3. Within at least 30 days before the representative office establishment license expires, a foreign trade promotion organization shall carry out procedures for its extension.

4. The lime limit for the licensing agency to carry out procedures for extension of representative office establishment licenses is the same as that for the grant of new representative office establishment licenses specified in Article 14 of this Decree.

5. Upon the expiration of the time limit specified in Clause 4 of this Article, if the licensing agency refuses to extend the representative office establishment license, it shall notify in writing the reason for refusal to the trade promotion organization.

6. The licensing agency shall notify the extension or non-extension of the license to the agencies defined in Clause 2, Article 14 of this Decree.

7. The period of extension complies with the term of the license of a representative office under Clause 5, Article 14 of this Decree.

Article 21. Fees for the grant, re-grant, modification, supplementation and extension of representative office establishment licenses

1. Foreign trade promotion organizations shall pay fees for the grant, re-grant, modification, supplementation and extension of representative office establishment licenses.

2. The Ministry of Finance shall assume the prime responsibility for, and coordinate with the Ministry of Industry and Trade in, stipulating specific levels and the management of fees for the grant, re-grant, modification, supplementation and extension of representative office establishment licenses.

Chapter IV

INSPECTION, EXAMINATION, HANDLING OF VIOLATIONS AND COMPLAINTS AND DENUNCIATIONS

Article 22. Inspection, examination

1. In the course of operation, a representative office shall submit to the inspection and examination by the competent agencies defined in Article 3 of this Decree and other competent agencies under Vietnamese law. Inspection and examination of a representative office must be conducted strictly according to functions and competence and the inspection and examination law.

2. A person who issues an inspection or examination decision against law or abuses inspection or examination to hassle and trouble activities of a representative office shall, depending on the seriousness of his/her violation, be disciplined or examined for penal liability and, if causing damage, pay compensation under law.

Article 23. Handling of violations

1. A foreign trade promotion organization or representative office that commits an act in violation of this Decree or any of the following specific acts shall, depending on the nature and seriousness of the violation, be handled under the law on handling of administrative violations:

a/ Untruthfully, inaccurately or lately declaring changes in the content of the dossier of application or request for the grant, re-grant, modification, supplementation or extension of a representative office establishment license;

b/ Carrying out profit-making activities directly in Vietnam;

c/ Failing to commence operation within the time limit specified in Clause 2, Article 8 of this Decree after being granted a representative office establishment license;

d/ Failing to notify the licensing agency and provincial-level People's Committee and Industry and Trade Department according to Clause 2, Article 8 of this Decree;

e/ Failing to properly implement regulations of the State Bank of Vietnam on the opening, use and closing of accounts of representative offices;

f/ Having no working office for the repre­sentative office or sub-lease the working office of the representative office or acting as a repre­sentative for another trade promotion organization;

g/ Failing to send according to regulations periodical reports on activities of the representative office to the licensing agency;

h/ Failing to make reports, provide documents or explain about matters related to activities of the representative office at the request of a competent agency according to Article 3 of this Decree;

i/ Failing to carry out procedures for modification, supplementation or re-grant of the license under this Decree;

j/ Tampering with the contents of the granted license;

k/ Carrying out activities not stipulated in the representative office establishment license;

1/ Failing to carry out or improperly carrying out procedures for operation termination under this Decree;

m/ Breaching the obligations of the repre­sentative office and its chief defined in this Decree;

n/ Continuing to operate after the parent foreign trade promotion organization has terminated operation;

o/ Continuing to operate after the licensing agency revokes the representative office establishment license;

p/ Failing to place announcements in the press as required in Clause 1, Article 8 of this Decree.

2. In addition to administratively handling, in certain cases, the licensing agency shall, depending on the nature and seriousness of the violation of a representative office, consider and issue a decision to revoke its establishment license. Revocation of a representative office establishment license shall be carried out under Clauses 3, 4, and 5, Article 12 of this Decree. Cases in which a representative office may have its establishment license revoked include:

a/ Failing to officially commence operation within six months after being granted an establishment license;

b/ Stopping operation for six consecutive months without notifying to the licensing agency;

c/ Failing to make annual reports on its operation;

d/ Failing to send reports at the request of a competent agency under Article 3 of this Decree within 60 days after receiving such request in writing from the competent agency;

e/ Operating beyond the functions of a representative office as provided by Vietnamese law and relevant international conventions to which Vietnam is a contracting party;

f/ An employee of the representative office violates the Vietnamese labor law.

The chief of a representative office who violates provisions of this Decree shall, depending on the nature and seriousness of the violation, be administratively handled or examined for penal liability under law.

A foreign trade promotion organization that organize activities in Vietnam in the form of representative office without a representative office establishment license shall have such activities terminated and be handled for such violation under Vietnamese law.

Article 24. Complaints, denunciations

Foreign trade promotion organizations may lodge complaints or denunciations about civil servants' or state agencies' grant or refusal to grant representative office establishment licenses, decisions and acts that are illegal, hassling or troublesome. The lodging and settlement of such complaints and denunciations comply with the law on complaints and denunciations.

Chapter V

IMPLEMENTATION PROVISIONS

Article 25. Effect

1. This Decree lakes effect on December 15, 2011.

2. Representative offices which are established before the effective date of this Decree may continue their operations and shall carry out procedures for re-grant of representative office establishment licenses under this Decree within six months after the effective dale of this Decree.

Article 26. Organization of implementation

1. The Minister of Industry and Trade shall detail this Decree and the grant, re-grant, modification, supplementation and extension of representative office establishment licenses stipulated in this Decree.

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