Chương V Nghị định 22/2017/NĐ-CP hòa giải thương mại: Hoạt động của tổ chức hòa giải thương mại nước ngoài tại việt nam

Chapter V

OPERATION OF VIETNAM-BASED FOREIGN COMMERCIAL MEDIATION INSTITUTIONS

Article 33. Conditions for and forms of operation of Vietnam-based foreign commercial mediation institutions

1. Foreign commercial mediation institutions that are lawfully established and operate in foreign countries and respect the Constitution and laws of the Socialist Republic of Vietnam may operate in Vietnam in accordance with this Decree.

2. Foreign commercial mediation institutions may operate in Vietnam in the following forms:

a/ Branches of foreign commercial mediation institutions (below referred to as branches);

b/ Representative offices of foreign commercial mediation institutions (below referred to as representative offices).

Article 34. Branches and representative offices of Vietnam-based foreign commercial mediation institutions

1. Branch is a dependent unit of a foreign commercial mediation institution, which is established to carry out commercial mediation activities in Vietnam in accordance with this Decree. A foreign commercial mediation institution shall take responsibility before Vietnamese law for the operation of its branch. The foreign commercial mediation institution shall appoint a commercial mediator to be head of its branch. The head of a branch shall act as the authorized representative of a Vietnam-based foreign commercial mediation institution.

2. Representative office is a dependent unit of a foreign commercial mediation institution, which is established to seek and promote opportunities of mediation activities in Vietnam in accordance with this Decree. The foreign commercial mediation institution shall take responsibility before Vietnamese law for the operation of its representative office.

3. The name of a branch of a foreign commercial mediation institution must contain the word “Chi nhanh” (branch) and the name of the institution.

The name of the representative office of a foreign commercial mediation institution must contain the words “Van phong dai dien” (representative office) and the name of the institution.

Names of branches or representative offices of foreign commercial mediation institutions must comply with Clause 1, Article 20 of this Decree.

Article 35. Rights and obligations of branches and representative offices of Vietnam-based foreign commercial mediation institutions

1. Rights and obligations of a branch

a/ To rent a working office to serve its operation;

b/ To recruit Vietnamese and foreign employees in accordance with law;

c/ To open Vietnam dong and foreign currency accounts at banks licensed to operate in Vietnam to serve its operation;

d/ To transfer its incomes abroad in accordance with Vietnamese law;

dd/ To have a seal as prescribed by law;

e/ To operate for proper purposes and within the scope and period stated in its establishment license;

g/ To appoint mediators to conduct mediation as authorized by the foreign commercial mediation institution;

h/ To provide commercial mediation services;

i/ To archive files and provide copies of written records of mediation results at the request of disputing parties or competent state agencies;

k/ To report on the organization of commercial mediation activities to the provincial-level Department of Justice of the locality where it has registered its operation on an annual basis and upon request;

l/ Other rights and obligations as prescribed by law.

2. Rights and obligations of a representative office

a/ The rights and obligations specified at Points a, b, c, dd, e and l, Clause 1 of this Article;

b/ To seek and promote opportunities of commercial mediation activities in Vietnam;

c/ To refrain from carrying out commercial mediation activities in Vietnam; to carry out only activities to promote and advertise commercial mediation activities in accordance with Vietnamese law;

d/ To report on its organization and activities to the provincial-level Department of Justice of the locality where it is located on an annual basis and upon request.

Article 36. Grant of licenses for establishment of branches or representative offices of Vietnam-based foreign commercial mediation institutions

1. A foreign commercial mediation institution that wishes to establish a branch or representative office in Vietnam shall send 1 set of dossier to the Ministry of Justice, comprising:

a/ A written request for establishment of a branch or representative office, made according to a form issued by the Ministry of Justice;

b/ A certified copy of the paper proving the lawful establishment of the institution, issued by a competent foreign authority;

c/ A written introduction of the institution’s operation;

d/ The decision appointing a commercial mediator to be the head of the branch or representative office;

dd/ A list of commercial mediators and staff members expected to work at the branch; or a list of staff members expected to work at the representative office.

3. Foreign-language papers accompanying the written request for establishment of a branch or representative office must have Vietnamese translations which are certified in accordance with Vietnamese law.

Papers issued by foreign agencies or organizations or notarized or certified in foreign countries must be consularly legalized in accordance with Vietnamese law, unless they are exempted from consular legalization under a treaty to which the Socialist Republic of Vietnam is a contracting party.

4. Within 30 days after receiving a valid dossier, the Ministry of Justice shall grant an establishment license to the branch or representative office of a foreign commercial mediation institution; in case of refusal, it shall notify the reason in writing.

Article 37. Registration of operation of branches or announcement of establishment of representative offices of Vietnam-based foreign commercial mediation institutions

1. Within 60 days from the effective date of the decision on grant of its establishment license, a branch shall send 1 set of dossier for operation registration to the provincial-level Department of Justice of the locality where it is located. Past this time limit, if the branch fails to register operation, its establishment license shall be invalidated, unless it has a plausible reason.

2. A dossier for operation registration must comprise:

a/ A written request for operation registration, made according to a form issued by the Ministry of Justice;

b/ A certified copy, or a copy enclosed with the original for comparison, of the branch’s establishment license;

c/ Papers proving the branch’s office.

3. Within 10 days after receiving a complete and valid dossier, the provincial-level Department of Justice shall grant an operation registration certificate to the branch. The branch may start operation on the date it is granted the operation registration certificate.

Within 7 working days after granting the operation registration certificate to the branch, the provincial-level Department of Justice shall send a copy of this certificate to the Ministry of Justice.

4. Within 7 working days from the effective date of the decision on grant of its establishment license, a representative office shall send 1 set of dossier notifying its establishment to the provincial-level Department of Justice of the locality where it is located, comprising:

a/ A notice of the establishment of the representative office;

b/ A certified copy, or a copy enclosed with the original for comparison, of the representative office establishment license.

Article 38. Change of names, heads or addresses of branches or representative offices of Vietnam-based foreign commercial mediation institutions

1. A branch that wishes to change its name or head or change its address from a province or centrally run city to another shall send 1 set of dossier of request for the change to the Ministry of Justice, comprising:

a/ A written request for the change, made according to a form issued by the Ministry of Justice;

b/ Papers relevant to the change.

Within 15 days after receiving a valid dossier, the Ministry of Justice shall issue a written approval of the change; in case of refusal, it shall notify the reason in writing.

2. Within 15 days from the effective date of the Ministry of Justice’s written approval of the change of its name or head, a branch shall send a written request for the change of its name or head in its operation registration certificate to the provincial-level Department of Justice of the locality where it has registered its operation. Within 7 working days after receiving the branch’s written request, the provincial-level Department of Justice shall issue a decision to change the name or head of the branch in its operation registration certificate.

3. Within 20 days from the effective date of the Ministry of Justice’s written approval of the change of its address from a province or centrally run city to another, a branch shall register operation with the provincial-level Department of Justice of the locality where it moves to. The order and procedures for operation registration must comply with Clauses 2 and 3, Article 37 of this Decree.

Within 7 working days after being granted a new operation registration certificate, the branch shall send a written notice thereof to the provincial-level Department of Justice of the locality where it has registered its operation before the change of its address. The provincial-level Department of Justice shall issue a decision to revoke the branch’s operation registration certificate.

4. A representative office that wishes to change its name or head or change its address from a province or centrally run city to another shall, within 7 working days after deciding on the change, send a written notice thereof to the Ministry of Justice and provincial-level Department of Justice of the locality where it is located.

Article 39. Re-grant of establishment licenses or operation registration certificates of branches or licenses for establishment of representative offices of Vietnam-based foreign commercial mediation institutions

1. In case its establishment license or operation registration certificate is lost, burnt, torn or rumpled or otherwise destroyed, a branch or representative office of a Vietnam-based foreign commercial mediation institution shall send a written request for re-grant to the competent agency that has granted such license or certificate.

2. Within 10 days after receiving the written request, the Ministry of justice shall re-grant an establishment license to the branch or representative office of a Vietnam-based foreign commercial mediation institution. Within 5 working days after receiving the written request, the provincial-level Department of Justice shall re-grant an operation registration certificate to the branch of a Vietnam-based foreign commercial mediation institution.

Article 40. Revocation of establishment licenses or operation registration certificates of branches or establishment licenses of representative offices of Vietnam-based foreign commercial mediation institutions

1. The branch of a Vietnam-based foreign commercial mediation institution may have its establishment license revoked in the following cases:

a/ It repeats a violation related to commercial mediation for which it has been administratively sanctioned under the law on handling of administrative violations;

b/ It does not carry out any activity stated in its establishment license within 5 consecutive years from the date it is granted this license;

c/ It fails to register operation within 60 days from the effective date of the decision on grant of its establishment license, unless it has a plausible reason.

2. The representative office of a Vietnam-based foreign commercial mediation institution shall have its establishment license revoked in case it repeats a violation related to commercial mediation for which it has been administratively sanctioned under the law on handling of administrative violations.

3. An organization or individual that detects a branch or representative office falling into any of the cases subject to revocation of establishment license shall notify such to the provincial-level Department of Justice of the locality where such branch or representative office is located for the latter to verify.

If having grounds to believe that the branch or representative office falls into the case specified in Clause 1 or 2 of this Article, the provincial-level Department of Justice shall send a written request enclosed with relevant papers (if any) to the Ministry of Justice for revocation of its establishment license, stating the reason.

4. Within 15 days after receiving the written request from the provincial-level Department of Justice, the Ministry of Justice shall consider and decide to revoke the branch’s or representative office’s establishment license.

5. Within 15 days from the effective date of the Ministry of Justice’s decision on revocation of the establishment license of the branch of a Vietnam-based foreign commercial mediation institution, the provincial-level Department of Justice of the locality where such branch has registered its operation shall issue a decision to revoke its operation registration certificate.

Article 41. Termination of operation of branches or representative offices of Vietnam-based foreign commercial mediation institutions

1. A branch or the representative office of a Vietnam-based foreign commercial mediation institution shall terminate operation in the following cases:

a/ Under the institution’s decision;

b/ The institution terminates operation overseas;

c/ It has its establishment license revoked under Clause 1 or 2, Article 40 of this Decree.

2. In case of operation termination under Point a or b, Clause 1 of this Article, at least 30 days before the date of operation termination, the branch or representative office shall send a written notice thereof to the Ministry of Justice and provincial-level Department of Justice of the locality where it is located.

Within 60 days from the date of operation termination, the branch or representative office shall pay off all debts and asset liabilities; liquidate labor contracts; and fulfill all cases it has accepted, unless otherwise agreed upon.

3. Within 10 days after completing the activities specified in Clause 2 of this Article, the branch or representative office shall send a written report thereon to the Ministry of Justice and provincial-level Department of Justice of the locality where the branch has registered its operation or the representative office is located. Within 7 working days after receiving such report, the Ministry of Justice shall issue a decision to revoke the establishment license of the branch or representative office; or the provincial-level Department of Justice shall issue a decision to revoke the operation registration certificate of the branch.

4. In case of operation termination under Point c, Clause 1 of this Article, within 60 days from the effective date of the Ministry of Justice’s decision on revocation of its establishment license, the branch or representative shall pay off all debts and asset liabilities, liquidate labor contracts, and fulfill all cases it has accepted, unless otherwise agreed upon.