Chương 2 Nghị định 18-CP: Hợp đồng hợp tác kinh doanh

Chapter II

BUSINESS CO-OPERATION CONTRACT

Article 8

1. A business co-operation contract is a document signed by two or more parties (hereinafter called the contracting parties) with the object of conducting jointly one or more business operations in Vietnam, on the basis of mutual allocation of responsibilities and sharing of profits or losses, without creating a legal entity.

Commercial contracts and economic contracts for the mere exchange of goods such as delivery of raw materials in return for finished products, or purchase of equipment in return for products in the future, are beyond the scope of this Decree.

2. The parties to a business co-operation contract shall agree upon its duration having taken into account the nature and objectives of the business and obtain the approval of the State Committee for Co-operation and Investment.

3. A business co-operation contract shall be signed by duly authorized representatives of the contracting parties.

Article 9

An application for the issue of a business license shall be signed by the contracting parties and submitted to the State Committee for Co-operation and Investment with the following documents:

1. A business co-operation contract.

2. All necessary information which relates to the contracting parties, such as details of their financial standing, the charter in the case of a company and details of legal capacity in the case of individuals.

3. The economic-technical statement of the contract.

Article 10

A business co-operation contract shall contain the following principal matters:

1. The nationalities, addresses, and the names of the duly authorized representatives, of the contracting parties.

2. A description of the intended business activities.

3. A list of the main equipment and materials, their quantity and quality; the specification, quantity and quality of the products of the business; the proportion of products to be sold in the domestic and international markets; and the proportion of revenue to be received in foreign currency and in Vietnamese currency.

In the case of production of import substitutes, the method of payment shall be clearly stated.

4. The rights and obligations of the contracting parties, the method of determination and distribution of profits or losses of the business, and the conditions for assignment by the parties of their rights and obligations under the contract.

5. The duration of the contract and the responsibilities of the parties in performance, amendment and termination of the contract.

6. The procedure for the resolution of disputes between the contracting parties.

7. The effectiveness of the contract.

Article 11

1. The State Committee for Co-operation and Investment shall, within three months from the date of receipt of an application for a business license, notify its decision to the contracting parties.

2. In the event that the State Committee for Co-operation and Investment requires the contracting parties to submit additional documentation or to amend some of the provisions of the contract, it shall send a request to them within one month from the date of receipt of the application.

In the event that the contracting parties do not reply in writing within forty-five (45) days from the date of receipt of the request from the State Committee for Co-operation and Investment, the application for issue of the business license shall be deem ed invalid.

In the event that a reply does not satisfy the request of the State Committee for Co-operation and Investment then the time for consideration and notification of approval as stated in clause 1 of this article shall be suspended until the reply is adequate .

3. In the event that an application for issue of the business license is approved, the State Committee for Co-operation and Investment shall issue a business license to the contracting parties. Copies of the business license shall be sent to the relevant State administrative authorities.

Article 12

A business co-operation contract shall not be effective until a business license is issued by the State Committee for Co-operation and Investment. The contracting parties shall, within thirty (30) days after the date of issue of the business license, cau se to be published in a central or local newspaper the following principal details of the business license:

- The names, addresses and representatives of the contracting parties;

- A description of the business activities;

- The representatives of the contracting parties to appear before Vietnamese courts and State authorities;

- The duration of the business co-operation contract and the date of issue of the business license.

Article 13

Each contracting party shall have the right to assign its share of the invested capital, provided that priority is given to the other contracting parties. Where the parties fail to agree on terms for assignment, the intending assignor shall have the right to assign to a third party. The terms of the assignment offered to the third party shall not be more favorable than the terms offered to the other contracting parties.

An assignee shall submit to the State Committee for Co-operation and Investment the contract of assignment and attach documents which relate to its legal capacity, financial standing, and authorized representative.

In the event that the value of the assignment is higher than the initial value, an assignor shall be liable to pay tax in accordance with the law of Vietnam.

An assignment must have the unanimous approval of the other contracting parties and shall be effective as of the date that it is approved by the State Committee for Co-operation and Investment.

Article 14

In the event that the contracting parties agree to extend the duration of the contract, they shall file an application for approval with the State Committee for Co-operation and Investment no later than six months prior to the expire of the contract. The State Committee for Co-operation and Investment shall notify its decision to the contracting parties within fifteen (15) days after the date of receipt of the application.

Article 15

1. A business co-operation contract may be terminated prior to its expire if the conditions for its termination as specified in the contract are satisfied.

2. After the contract expires, its relevant clauses concerning the resolution of disputes and rights of action shall remain valid for the period otherwise provided by law, or in the event that there is no law, for the period agreed upon by the contracting parties.

3. The State Committee for Co-operation and Investment shall have the right to withdraw a business license prior to its expire if the business activities of the parties breach the law or do not conform with the objectives and provisions stated in the business license.

Article 16

The contracting parties shall submit a report on the results of the performance of the contract in accordance with the regulations enacted by the State Committee for Co-operation and Investment.

Article 17

Each contracting party shall:

1. Ensure full payment is made of all taxes due: foreign parties must pay tax in accordance with the provisions of the foreign Investment Law; and the Vietnamese parties must pay tax in accordance with the taxation laws applicable to domestic businesses.

2. Be responsible for its activities before the law of the Socialist Republic of Vietnam.

Article 18

1. Contracting parties must carry out the liquidation of a contractual business co-operation in accordance with the provisions stipulated in the contract. The duration of the liquidation process shall not exceed six months after the decision to terminate the contract is made or after the expiration of the contract. When necessary, this period may be extended provided that the total period shall not exceed one year. 2. All expenses incurred in the process of liquidation shall be met by the contracting parties, and payment of these expenses shall take priority over payment of all other liabilities.

3. All other liabilities shall be paid in accordance with the following order of priorities:

- Salaries and labour insurance premiums due by the joint venture enterprise to or in respect of its employees;

- Taxes and imposts in the nature of tax which the contracting parties are liable to pay to the State of Vietnam;

- Loans (including interest);

- Other liabilities.