Nghị định 92/1998/ND-CP

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.

Article 2.- The Vietnamese Government ensures the fair and adequate treatment to foreign lawyers’ organizations practicing legal consultancy in Vietnam according to the provisions of Vietnamese law.

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;

4. Having goodwill toward the Vietnamese State;

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;

3. Not being a person who is examined for penal liability, currently serving a sentence or has not had his/her sentence wiped out yet.

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.

Article 11.- The application for license to set up a branch must be enclosed with the following documents:

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:

1. Copy(ies) of the statute or papers evidencing the lawful establishment and operation of the foreign lawyers’ organization;

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.

Article 15.- Within 15 days from the date of being granted the practice registration paper, the branch of the foreign lawyers’ organization shall have to publish its establishment on a local or central newspaper in Vietnam for 5 issues running.

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.

Article 20.- Foreign lawyers of a branch shall be allowed to provide consultancy on foreign laws and international laws in business, investment and commercial fields; they must not provide consultancy on Vietnamese laws and not participate in the legal proceedings as defense counsels or representatives for their clients at the Vietnamese courts.

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.

The branch must not hire Vietnamese lawyers to work thereat.

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.

Article 31.- The branch shall have to buy professional liability insurance for its lawyers practicing in Vietnam.

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.

Within 90 days from the date of terminating its operation, the branch shall have to return its working office and facilities it has hired and pay off all debts (if any) to organizations and/or individuals, and settle all matters related to the operation termination, then send a written report thereon to the Ministry of Justice and the concerned competent State agencies.

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.

Article 37.- The People’s Committees of the provinces and centrally-run cities where the offices of the branches are located, shall manage the legal consultancy practice by foreign lawyers’ organizations in Vietnam, with the following tasks and powers:

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

HANDLING OF VIOLATIONS

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;

h) Having no office and/or sign-board, or using its sign-board in contravention of law.

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:

a) Practicing legal consultancy when the license to set up the branch in Vietnam has expired and the extension thereof has not yet been granted or has been rejected ;

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.

In addition to the sanctioning forms prescribed in Paragraph 1 of this Article, the People’s Committees of the provinces and centrally-run cities may request the Ministry of Justice to deprive the right to use the branch-setting up license definitely or indefinitely.

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.