Chương II Nghị định 07/2016/NĐ-CP quy định chi tiết Luật Thương mại về Văn phòng đại diện, Chi nhánh của thương nhân nước ngoài tại Việt Nam: Quy định về việc cấp, cấp lại, điều chỉnh, gia hạn giấy phép thành lập văn phòng đại diện, giấy phép thành lập chi nhánh

Chapter II

REGULATIONS ON GRANT, RE-GRANT, ADJUSTMENT AND EXTENSION OF LICENSES FOR ESTABLISHMENT OF BRANCHES

Article 7. Requirements for grant of Licenses for Establishment of representative offices

Foreign traders shall be granted Licenses for Establishment of representative offices if they satisfy the following requirements:

1. The foreign trader is incorporated and registers for doing business in accordance with provisions of laws of countries or territories being parties to treaties to which Vietnam is a signatory or is recognized by the aforesaid countries or territories;

2. The foreign trader has come into operation for at least 01 year from the date of establishment or registration;

3. The Certificate of Business Registration or the equivalent document is valid for at least 01 more year from the date of submission of the application;

4. The scope of operation of the representative office is consistent with that in Vietnam’s Commitments to treaties to which Vietnam is a signatory;

5. Where the scope of operation of the representative office is inconsistent with Vietnam’s Commitments or the foreign trader is not located in the country or territory being party to treaties to which Vietnam is a signatory, the representative office can be established only if relevant Ministers, Heads of ministerial agencies (hereinafter referred to as “relevant Ministers”) have given approval for establishment of the representative office.

Article 8. Requirements for grant of Licenses for Establishment of branches

Foreign businesses shall be granted Licenses for Establishment of branches if they satisfy the following requirements:

1. The foreign trader is incorporated and registers for doing business in accordance with provisions of laws of countries or territories being parties to treaties to which Vietnam is a signatory or is recognized by the aforesaid countries or territories;

2. The foreign trader has come into operation for at least 05 year from the date of establishment or registration;

3. The Certificate of Business registration or equivalent document is valid for at least 01 more year from the date of submission of the application;

4. The scope of operation of the branch is conformable with Vietnam’s Commitments to market access stipulated in treaties to which Vietnam is a signatory shall be consistent with lines of business of the foreign trader;

5. Where the businesses of the representative office is inconsistent with Vietnam’s Commitments or the foreign trader is not located in one of countries or territories being parties to treaties to which Vietnam is a signatory, the representative office can be established only if they obtain a prior consent of the relevant Minister for establishment of the representative office.

Article 9. Effective periods of Licenses for Establishment of branches or representative offices.

1. The License for Establishment of a representative office or branch shall be valid for 05 years but not exceeding the remaining effective period of the Certificate of Business Registration or the equivalent (for documents having expiry date);

2. The effective period of an extended License for Establishment of the representative office or branch shall be equal to that of the current license.

3. The extension of the license or establishment of the representative office or branch shall comply with clause 1 hereof.

Article 10. Applications for Licenses for Establishment of representative offices

1. An application for License for Establishment of a representative office:

a) An application form for License for Establishment of the representative office using the form promulgated by the Ministry of Industry and Trade and signed by a competent representative of the foreign trader.

b) Copies of the Certificate of Business Registration or equivalent documents of the foreign trader;

c) A letter of appointment of the head of the representative office;

d) Copies of audited financial statements or certificates of fulfillment of tax liabilities or financial obligations of the last fiscal year or equivalent documents as proof of existence and operation of the foreign trader issued or certified by competent authorities where such foreign trader is established;

dd) Copies of the passport or ID card (for Vietnamese) or copies of the passport (for foreigners) of the head of the representative office;

e) Documents on the expected location of the representative office including:

- Copies of memorandum of understanding (MOU) or leasing agreements or documents as proof of the right to use a location as the representative office;

- Copies of documents on the expected location of the representative office in accordance with provisions of Article 28 hereof and related laws.

2. Documents specified in points b, c, d and dd, clause 1 of this Article (for the head of the representative office being foreigners) shall be translated into Vietnamese and certified true in accordance with laws of Vietnam. Documents specified in point b, clause 1 of this Article shall be certified or legalized by overseas diplomatic missions or Consulates of Vietnam under laws of Vietnam

Article 11. Procedures for grant of Licenses for Establishment of representative offices

1. The foreign trader shall submit the application to the licensing agency where the representative office is expected to be located directly or by post or online (where applicable) .

2. Within 03 working days from the date of receipt of the application, the licensing agency shall examine such application and request the applicant to complete the application (if the application is incomplete) . The request for supplementation to the application shall be made only once during the processing of such application.

3. Apart from those specified in clause 4 of this Article, the licensing agency shall send the applicant a written notification of whether the license or establishment of the representative office is granted or not within 07 working days from the date of receipt of the valid application. In case of rejection, the licensing agency shall send the applicant a written notice in which reasons for rejections shall be specified.

4. For those specified in clause 5, Article 7 hereof and the establishment of representative offices that has not prescribed by specialized legislative documents, the licensing agency shall submit a written request for directions to the relevant Ministry within 03 working days from the date of receipt of the valid application. Within 05 working days from the date of receipt of the request for directions from the licensing agency, the relevant Ministry shall submit the licensing agency a written notification of whether or not they approve for the application . Within 05 working days from the date of receipt of the notification from the relevant Ministry , the licensing agency shall send the applicant a written notice of whether the License for Establishment of the representative office is granted . In case of rejection, the licensing agency shall send the applicant a written notice in which reasons for rejections shall be specified.

Article 12. Applications for Licenses for Establishment of branches

1. An application for the license for establishment of the branch of a foreign trader shall include :

a) An application form for license for establishment of the branch using the form promulgated by the Ministry of Industry and Trade and signed by a competent representative of the foreign trader.

b) Copies of the Certificate of Business Registration or equivalent documents of the foreign trader;

c) A letter of appointment of the head of the branch;

d) Copies of audited financial statements or certificates of fulfillment of tax liabilities or financial obligations of the last fiscal year or equivalent documents as proof of existence and operation of the foreign trader issued or certified by competent authorities where such foreign trader is established;

dd) Copies of the branch charter;

e) Copies of the passport or ID card (for Vietnamese) or copies of the passport (for foreigners) of the head of the branch;

g) Documents on the expected location of the branch including:

- Copies of memorandum of understanding (MOU) or leasing agreements or documents as proof of the right to use a location as the branch;

- Copies of documents on the expected location of the branch under Article 28 hereof and provision of related laws.

2. Documents specified in points b, c, d and dd, Article 1 hereof (for the head of the branch being foreigners) shall be translated into Vietnamese and certified true in accordance with laws of Vietnam. Documents specified in point b, clause 1 of this Article shall be certified or legalized by overseas diplomatic missions or Consulates of Vietnam in accordance with laws of Vietnam.

Article 13. Procedures for Licenses for Establishment of branches of foreign traders

1. The foreign trader shall submit their application to the licensing agency where the representative office is expected to be located directly or by post or online (where applicable).

2. The licensing agency shall examine such application and request the applicant to complete their application within 03 working days from the date of receipt of the application (if the application is incomplete) . The request for supplementation to the application shall be made only once during the processing of such application.

3. Apart from those specified in clause 4 of this Article, the licensing agency shall send the applicant a written notification of whether the license or establishment of the branch is granted or not within 07 working days from the date of receipt of the valid application. In case of rejection, the licensing agency shall send the applicant a written notice in which reasons for rejections shall be specified.

4. For those specified in clause 5, Article 8 hereof and the establishment of branches that has not been prescribed by specialized legislative documents, the licensing agency shall submit a written request for directions to the relevant Ministry within 03 working days from the date of receipt of the valid application. Within 05 working days from the date of receipt of the request for directions from the licensing agency, the relevant Ministry shall submit the licensing agency a written notification of whether or not they approve for the application for the License for Establishment of the branch. Within 05 working days from the date of receipt of the notification from the relevant Ministry , the licensing agency shall send the applicant a written notice of whether the License for Establishment of the representative office is granted. In case of rejection, the licensing agency shall send the applicant a written notice in which reasons for rejections shall be specified.

Article 14. Cases ineligible for Licenses for Establishment of branches or representative offices

The licensing agency shall refuse to grant the License for Establishment of the representative offices or branches to those that:

1. Fail to satisfy one of requirements stipulated in Articles 7 ( for applications for licenses or establishment of representative offices) or fail to satisfy one of requirements stipulated in Article 8 (for applications for licenses or establishment of branches).

2. Apply for the license or establishment of the representative office or branch within 02 years from the date of revocation of the license or establishment of the representative office or branch under Article 44 hereof;

3. Be subject to restrictions from the establishment of representative offices and branches for reasons of national defense and security, social order, social ethics and community health.

4. Be restricted by provisions of laws.

Article 15. Cases of adjustments to Licenses for Establishment of branches or representative offices

Foreign traders shall apply for adjustments to Licenses for Establishment of branches or representative offices in the following cases:

1. Changes in the name or location of the head office of a foreign trader.

2. Changes in lines of business of the foreign trader affecting the operations of its branches in Vietnam.

3. Replacement of the head of the representative office or branch.

4. Changes in the name of the representative office or branch.

5. Changes in the operations of representative offices or branches

6. Change in the location of the representative office.

7. Changes in the location of the branch .

Article 16. Applications for adjustments to Licenses for Establishment of branches or representative offices

1. An application for adjustments to the License for Establishment shall include:

a) An application form for adjustments to the License for Establishment of the representative office using the form promulgated by the Ministry of Industry and signed by a competent representative of the foreign trader.

b) Documents as proof of adjustments. To be specified :

- With regard to adjustments specified in clause 1, Article 15 hereof: copies of legal documents as proof of changes in the name or location of the head office of a foreign trader released by competent authorities.

- With regard to adjustments specified in clause 2, Article 15 hereof: copies of legal documents as proof of changes in the lines of business of the foreign trader released by competent authorities.

- With regard to adjustments specified in clause 3, Article 15 hereof: a letter of appointment of the new head of the representative office or branch; copies of the passport or ID card (for Vietnamese) or copies of the passport (for foreigners) of the new head of the representative office/branch; proof of fulfillment of personal income tax liabilities of the former head of the representative office/branch at the time of changes.

- With regard to adjustments specified in clauses 6 and 7, Article 15 hereof: copies of memorandum of understanding (MOU) or leasing agreements or documents as proof of the right to use a location as the representative office or branch; copies of documents on the expected locations of the representative office or branch under Article 28 hereof and provisions of relevant laws.

c) The original License for Establishment of the branch or representative office.

2. Documents as proof of changes in clauses 1, 2 and 3, Article 15 hereof (if the letter of appointment of the new head of the representative office or branch and copies of the passport of the head being foreigner are made in foreign languages) shall be translated into Vietnamese and certified true in accordance with laws of Vietnam. The proof of changes specified in clauses 1 and 2, Article 15 hereof shall be certified or legalized by overseas diplomatic missions or Consulates of Vietnam in accordance with laws of Vietnam.

Article 17. Procedures for adjustments to Licenses for Establishment of branches or representative offices

1. Within 60 days from the date of changes in items specified in Article 15 hereof, the foreign trader shall apply for adjustments to the License for Establishment of their representative office or branch;

2. The foreign trader shall submit their application to the licensing agency where the representative office is expected to be located directly or by post or online (where applicable).

3. Within 03 working days from the date of receipt of the application, the licensing agency shall examine such application and request the applicant to complete the application (if the application is incomplete) . The request for supplementation to the application shall be made only once during the processing of the application.

4. Apart from those specified in clause 5 of this Article, within 05 working days from the date of receipt of the valid application, the licensing agency shall send the applicant a written notification of whether the adjustments to the license or establishment of the representative office or branch are approved or not. In case of rejection, the licensing agency shall send the applicant a written notice in which reasons for rejections shall be specified.

5. In case of adjustments to the operations of representative offices or branches resulting in the cases specified in clause 5, Article 7 and clause 5, Article 8 hereof for representative offices and branches respectively, and in case of adjustments to the operations of representative offices or branches that have yet to be governed by specialized legislative documents, the licensing agency shall submit a written request for directions to the relevant Ministry within 03 working days from the date of receipt of the valid application. Within 05 working days from the date of receipt of the request for directions from the licensing agency, the relevant Ministry shall submit the licensing agency a written notification of whether they approve for the application for adjustments to the License for Establishment of the branch/ representative office. Within 05 working days from the date of receipt of the notification from the relevant Ministry , the licensing agency shall send the applicant a written notice of whether the adjustments for the License for Establishment of the representative office or branch is approved or not. In case of rejection, the licensing agency shall send the applicant a written notice in which reasons for rejections shall be specified.

Article 18. Cases of re-grant of Licenses for Establishment of branches or representative offices

Foreign traders shall apply for re-grant of the License for Establishment of branches or representative offices in the following cases:

1. Its representative office relocates to another province or territory within the administration of another Management Board.

2. The Licenses for Establishment of the branch or representative office is lost, damaged or destroyed in any form or shape.

Article 19. Applications for re-grant of Licenses for Establishment of branches or representative offices

1. An application for re-grant of the license of establishment of a representative office specified in clause 1, Article 18 hereof shall include:

a) An application form for re-grant of the License for Establishment of the representative office using the form promulgated by the Ministry of Industry and Trade and signed by a competent representative of the foreign trader;

b) An announcement of shutdown of the representative office submitted to the licensing agency in which the representative office is currently located under point a, clause 1, Article 36 hereof.

c) Copies of the existing License for Establishment of the representative office.

d) Copies of documents on the expected location of the representative office under point e, clause 1, Article 10 hereof.

2. An application for re-grant of the license of establishment of representative offices prescribed in clause 1, Article 18 hereof shall include: an application form for re-grant of the License for Establishment of the representative office or branch using the form promulgated by the Ministry of Industry and signed by a competent representative of the foreign trader.

Article 20. Procedures for re-grant of Licenses for Establishment of branches or representative offices

1. The foreign trader whose representative office is prescribed in clause 1, Article 18 hereof shall apply for re-grant of the License for Establishment of their representative office within 30 days from the date on which the notification of shutdown of the representative office is submitted. If the foreign trader fails to apply for re-grant of the License for Establishment of the representative office in the aforesaid time limit, such foreign trader shall apply for the license or establishment of their representative office under Article 10 and Article 11 hereof;

2. The foreign trader shall submit their application to the licensing agency where the representative office is expected to be located directly or by post or online (where applicable).

3. Within 03 working days from the date of receipt of the application, the licensing agency shall examine such application and request the applicant to complete the application (if the application is incomplete) . The request for supplementation to the application shall be made only once during the processing of the application.

4. Within 05 working days from the date of receipt of the valid application, the licensing agency shall re-grant the license or establishment of the representative office to the applicant. In case of rejection, the licensing agency shall send the applicant a written notice in which reasons for rejections shall be specified.

Article 21. Cases eligible for extension of Licenses for Establishment of branches or representative offices

Every foreign trader other than those prescribed in Article 44 hereof shall be eligible for the grant of extension of the license or establishment of the representative office or branch;

Article 22. Applications for extension of Licenses for Establishment of branches or representative offices

1. An application for extension of the License for Establishment shall include:

a) An application form for extension of the License for Establishment of the representative office or branch using the form promulgated by the Ministry of Industry and signed by a competent representative of the foreign trader.

b) Copies of the Certificate of Business registration or equivalent documents of the foreign trader;

c) Copies of audited financial statements or certificates of fulfillment of tax liabilities or financial obligations of the last fiscal year or equivalent documents as proof of existence and operation of the foreign trader issued or certified by competent authorities where such foreign trader is established;

d) Copies of the existing License for Establishment of the branch or representative office

2. Documents specified in point b, clause 1 of this Article shall be translated into Vietnamese and certified or legalized by overseas diplomatic missions or Consulates of Vietnam in accordance with laws of Vietnam. Documents specified in point c, clause 1 of this Article shall be translated into Vietnamese and certified true in accordance with laws of Vietnam.

Article 23. Procedures for extension of Licenses for Establishment of branches or representative offices

1. At least 30 days prior to the expiry of the license, the applicant shall apply for extension of the License for Establishment of the branch or representative office.

2. The foreign trader shall submit their application to the licensing agency where the representative office is expected to be located directly or by post or online (where applicable).

3. Within 03 working days from the date of receipt of the application, the licensing agency shall examine such application and request the applicant to complete the application (if the application is incomplete) . The request for supplementation to the application shall be made only once during the processing of the application.

4. Within 05 working days from the date of receipt of the valid application, the licensing agency shall grant an extension of the license or establishment of the representative office to the applicant. In case of rejection, the licensing agency shall send the applicant a written notice in which reasons for rejections shall be specified.

5. With respect to applications for extension of the License for Establishment of representative offices or branches that have yet to be governed by specialized legislative documents, the licensing agency shall submit a written request for directions to the relevant Ministry within 03 working days from the date of receipt of the valid application. Within 05 working days from the date of receipt of the request for directions from the licensing agency, the relevant Ministry shall submit the licensing agency a written notification of whether they approve for the application for extension of the License for Establishment of the branch or representative office. Within 05 working days from the date of receipt of the notification from the relevant Ministry , the licensing agency shall send the applicant a written notice of whether the extension is granted or not. In case of rejection, the licensing agency shall send the applicant a written notice in which reasons for rejections shall be specified.

Article 24. Submission and retention of licenses

1. The licensing agency shall submit copies of Licenses for Establishment of representative offices to the Ministry of Industry and Trade, relevant Ministry (where relevant), tax authority, statistical agency , department of public security of the province where the representative office is located.

2. The licensing agency shall submit copies of Licenses for Establishment of branch to the relevant Ministry (where relevant), tax authority, statistical agency , department of public security and Department of Trade and Industry of the province where the branch is located or the Management Board (for branches located in industrial parks, export-processing zones, economic zones or hi-tech zones).

Article 25. Notification of representative office or branch information

Within 15 working days from the date of grant, re-grant, adjustment, extension and revocation of the License for Establishment of a representative office or branch, the licensing agency shall publish the following information on its web portal:

1. The name and address of the representative office or branch;

2. The name or address of the head office of the foreign trader.

3. Information on the head of the representative office or branch;

4. The reference number, date of issue and effective period of the Licenses for Establishment of the branch or representative office and licensing agency.

5. The scope of operation of the representative office or branch;

6. Date of re-issue, adjustment, extension or revocation of the License for Establishment of the representative office or branch.

Article 26. Charges for grant, re-grant, adjustment and extension of Licenses for Establishment of branches or representative offices

The Ministry of Finance shall decide charges for grant, re-grant, adjustment and extension of Licenses for Establishment of branches or representative offices.