Chương IV Nghị định 28/2018/NĐ-CP về hướng dẫn Luật Quản lý ngoại thương về biện pháp phát triển ngoại thương: Hoạt động của tổ chức xúc tiến thương mại nước ngoài tại việt nam

Chapter IV

OPERATION OF VIETNAM-BASED FOREIGN TRADE PROMOTION ORGANIZATIONS

Section 1. RULES FOR OPERATION OF VIETNAM-BASED FOREIGN TRADE PROMOTION ORGANIZATIONS

Article 24. Rules for operation

1. Foreign trade promotion organizations including governmental or non-governmental organizations and associations (or the equivalent) that are established in accordance with applicable laws of the area where they are located shall establish a representative office in Vietnam when carrying out trade promotion activities in Vietnam.

2. The trade promotion organizations specified in Clause 1 of this Article do not include foreign traders, foreign non-governmental organizations, authorities for cooperation and research, educational and cultural institutions and foreign organizations specified in other legislative documents.

3. Foreign trade promotion organizations are not allowed to establish more than 01 representative office in a province or central-affiliated city.

4. Foreign trade promotion organizations’ Vietnam-based representative shall have a Charter that is in accordance with Vietnam’s law. Representative offices are not allowed to carry out activities to make direct profit in Vietnam.

5. The representative office is an affiliate of the foreign trade promotion organizations and it is not allowed to establish a representative office that is affiliated to a representative office.

6. The heads and personnel of representative offices in Vietnam shall be decided by the foreign trade promotion organizations and registered with a licensing authority.

7. The recruitment of foreigners to work at representative offices in Vietnam shall comply with Vietnam’s laws and Vietnam’s commitments specified in the international treaties to which Vietnam is a signatory.

8. Foreign trade promotion organizations shall be responsible to Vietnam’s law for their representative office’s activities in Vietnam.

Article 25. Operation of Vietnam-based representative offices of foreign trade promotion organizations

1. The Vietnam-based representative office of a foreign trade promotion organization shall only carry out trade promotion activities in Vietnam, including:

a) Acting as a contact office;

b) Carrying out activities to encourage and assist foreign enterprises to access and operate in the Vietnamese market; considering and providing information about economy, trade and market to foreign enterprises and organizations; promoting its foreign trade with Vietnam, and activities aimed at establishing trade connection with foreign enterprises and Vietnamese organizations and enterprises;

c) Other trade promotion activities prescribed by law.

2. The representative office and its head shall exercise and fulfill the following rights and obligations:

a) The representative office shall operate in accordance with the representative office establishment license;

b) The head of a representative office is entitled to rent an office and recruit personnel to work at the representative office in accordance with Vietnam’s applicable regulations and laws;

c) The head of a representative office shall register and use the seal of the representative office in accordance with Vietnam’s applicable regulations and laws;

d) The representative office shall not act as a representative of another trade promotion organization and sublet its office;

dd) The head of a representative office shall not be concurrently the head of a representative office of another foreign trader or foreign organization in Vietnam;

e) The foreigner working at a representative office must have a work permit in accordance with regulations and laws of Vietnam.

Section 2. ISSUANCE, ADJUSTMENT, REISSUANCE AND EXTENSION OF REPRESENTATIVE OFFICE ESTABLISHMENT LICENSE; NOTICE OF OPERATION, ACCOUNT OPENING AND REPORTING BY AND SHUTDOWN OF REPRESENTATIVE OFFICES OF FOREIGN TRADE PROMOTION ORGANIZATIONS

Article 26. Issuance of Vietnam-based representative office establishment license

1. The foreign trade promotion organization shall submit 01 application for issuance of the Vietnam-based representative office establishment license to the Ministry of Industry and Trade.

2. An application for the representative office establishment license includes:

a) An application form made using the Form No. 01 in the Appendix hereof and signed by the competent representative of the foreign trade promotion organization;

b) A written permission for the Vietnam-based representative office establishment license granted by a foreign competent authority or documentary evidences for the foreign trade promotion organization’s right to establish a foreign-based representative office;

c) A copy of the establishment license or the equivalent;

d) A copy of the Charter or operating regulation of the foreign trade promotion organization;

dd) Expected Charter or operating regulation of the Vietnam-based representative office;

e) A report on the foreign trade promotion organization’s operation in the past year;

g) A letter of appointment and profile of the head, profiles of personnel of the Vietnam-based representative office;

h) Copies of contracts, agreements or relevant documents about the location of the representative office;

i) The documents mentioned in Points b, c, d, dd, e and g of this Clause shall be translated into Vietnamese. The documents mentioned in Points b, c, d and g shall be consularly legalized in accordance with Vietnam’s applicable laws.

3. The application may be submitted:

a) by post to the licensing authority; or

b) directly to the licensing authority. The applicant shall have a letter of introduction or a power of attorney translated into Vietnamese and consularly legalized in accordance with Vietnam’s applicable laws.

4. Within 15 working days from the date on which the satisfactory application is received, the licensing authority shall consider it and issue the representative office establishment license (Form No. 02 in the Appendix hereof) to the foreign trade promotion organization. In case of rejection of the application, the licensing authority shall provide written explanation.

5. The representative office establishment license shall be valid for a period of 05 years but not exceed the remaining effective period of the establishment license or the equivalent of the foreign trade promotion organization in case the law of the country where the organization is established prescribes on effective period of the establishment license.

6. Cases in which the application is rejected:

a) The foreign trade promotion organization fails to comply with Articles 24 and 25 of this Decree;

b) The foreign trade promotion organization applies for the representative office establishment license within 02 years from the date of revocation of the Vietnam-based representative office establishment license under Clause 2 Article 33 of this Decree;

c) There are reasonable grounds to believe that the establishment of the representative office causes harm to national defence, security, social security and order, history, culture, code of ethics and fine traditions and customs of Vietnam, and health of the people, destroys natural resources and causes environmental pollution;

d) The application for issuance of the representative office establishment license fails to comply with Clause 2 of this Article;

dd) Foreign organizations and individuals are on the United Nations Security Council sanctions list.

7. After issuing the establishment license, the licensing authority shall send a copy of the license to the Ministry of National Defense, the Ministry of Public Security, People’s Committees of provinces and central-affiliated cities (hereinafter referred to as the “People’s Committees of provinces”), Departments of Industry and Trade, tax authorities, statistical authorities and police authorities of provinces where the representative office is located.

8. In case the representative office’s operation involves promotion of trade in goods and services used for security and defence purporses, the Ministry of Industry and Trade shall reach an agreement with the Ministry of Public Security and the Ministry of National Defense before issuing the license.

Article 27. Amendment to the representative office establishment license

1. A representative office establishment license of the foreign trade promotion organization shall be amended in the following cases:

a) Change of the head of the representative office;

b) Change in the location of the representative office;

c) Change in the name or operation of the representative office that has been issued with the license;

d) Change in the location of the headquarters of the foreign trade promotion organization;

dd) Change in the name or in the location where the foreign trade promotion organization is established, from one country to another;

e) Change in the operation of foreign trade promotion organization.

2. Within 30 working days from the date on which the changes specified in Clause 1 of this Article are made, the foreign trade promotion organization shall submit 01 application for amendment to the representative office establishment license to the licensing authority.

3. An application for amendment to the representative office establishment license includes:

a) An application form made using the Form No. 03 in the Appendix hereof and signed by the competent representative of the foreign trade promotion organization;

b) An original of the representative office establishment license of the Vietnam-based foreign trade promotion organization;

c) A letter of appointment of the head of the representative office of the trade promotion organization that is translated into Vietnamese and consularly legalized in accordance with Vietnam’s applicable laws (in case the change specified in Point a Clause 1 of this Article 1 is made);

d) Copies of contracts, agreements or relevant documents about the change in the location of the representative office (in case the change specified in Point b Clause 1 of this Article 1 is made);

dd) A copy of the establishment license or the equivalent the foreign trade promotion organization. The documents specified in this Point shall be translated into Vietnamese and consularly legalized in accordance with Vietnam’s applicable laws (in case the change specified in Points d, dd and e Clause 1 of this Article).

4. The application may be submitted:

a) by post to the licensing authority; or

b) directly to the licensing authority. The applicant shall have a letter of introduction or a power of attorney of the representative office of the foreign trade promotion organization.

5. Within 10 working days from the date on which the application is received, the licensing authority shall amend the license and send a copy of the amended license to the authorities specified in Clause 7 Article 26 of this Decree. In case of rejection of the application, the licensing authority shall provide written explanation.

Article 28. Reissuance of the representative office establishment license

1. A representative office establishment license shall be reissued if the foreign trade promotion organization:

a) wishes to keep operating in Vietnam as a representative office;

b) is still in operation in accordance with law of the country where it is established;

c) does not commit any violations specified in Point c Clause 6 Article 26 of this Decree.

2. In case the representative office establishment license is lost and torn, the foreign trade promotion organization shall send 01 application form for reissuance of the representative office establishment license using the Form No. 04 in the Appendix hereof to the licensing authority after the license is lost or torn.

3. The application form may be sent:

a) by post to the licensing authority; or

b) directly to the licensing authority. The applicant shall have a letter of introduction or power of attorney of the representative office of the foreign trade promotion organization.

4. Within 10 working days from the date on which the application is received, the licensing authority shall reissue the license and send a copy of the reissued license to the authorities specified in Clause 7 Article 26 of this Decree.

Article 29. Extension of the representative office establishment license

1. A representative office establishment license shall be extended if the foreign trade promotion organization:

a) wishes to keep operating in Vietnam as a representative office;

b) is still in operation in accordance with law of the country where it is established;

c) does not commit any violations specified in Point c Clause 6 Article 26 of this Decree.

2. At least 60 days before the expiry date of the representative office establishment license, the foreign trade promotion organization shall submit 01 application for extension of the representative office establishment license to the licensing authority, including:

a) An application form made using the Form No. 05 in the Appendix hereof and signed by the competent representative of the foreign trade promotion organization;

b) An audited financial statement or other equivalent documentary evidences for the existence and operation of the foreign trade promotion organization in the past year. The documents specified in this Point translated into Vietnamese and consularly legalized in accordance with Vietnam’s applicable laws;

c) A report on the representative office’s operation by the time of applying for extension of the representative office establishment license;

d) An original of the issued representative office establishment license.

3. The application form may be sent:

a) by post to the licensing authority; or

b) directly to the licensing authority. The applicant shall have a letter of introduction or power of attorney of the representative office of the foreign trade promotion organization.

4. Within 10 working days from the date on which the application is received, the licensing authority shall extend the license and send a copy of the extended license to the authorities specified in Clause 7 Article 26 of this Decree. In case of rejection of the application, the licensing authority shall provide written explanation.

5. The extension period is the same as that of the representative office’s license under Clause 5 Article 26 of this Decree.

Article 30. Notice of operation of the representative offices

1. Within 45 days from the date on which the establishment license is issued, reissued, amended or extended, the representative office shall publish its operation on a printed newspaper or online newspaper that is licensed to release in Vietnam in 03 consecutive issues.

2. The published contents include:

a) Name and address of the representative office;

b) Name and address of the headquarters of the foreign trade promotion organization;

c) Name of the head of the representative office;

d) Number, date of issue and effective period of the representative office establishment license, licensing authority;

dd) Operations of the representative offices.

Article 31. Opening account

1. Representative offices are allowed to open foreign currency and Vietnamese dong accounts at banks which are licensed to operate in Vietnam and use such accounts solely for its operation.

2. Accounts of representative offices shall be opened, used and closed in accordance with regulations of the law on banking and law on foreign exchange management.

Article 32. Operation reporting

1. Before the last working day of January of the succeeding year, representative offices shall submit an annual report on their operation using the Form No. 06 in the Appendix hereof to the licensing authority.

2. Representative offices shall comply regulations on financial statements and statistical reports in accordance with Vietnam’s applicable laws.

3. Representative offices shall report, provide documents or explanation for issues concerning their operation at the request of the licensing authority and authorities specified in Clause 7 Article 26 of this Decree.

Article 33. Shutdown and revocation of the license for establishment of a representative office

1. A representative office shall be shut down in the following cases:

a) It is requested by a foreign trade promotion organization and approved by the licensing authority;

b) The foreign trade promotion organization shuts down its operation according to laws of the country where such foreign trade promotion organization is established.

c) The representative office establishment license is expired but the foreign trade promotion organization does not apply for extension of the license;

d) The licensing authority refuses to grant an extension of the expired representative office establishment license;

dd) The representative office establishment license is revoked as prescribed in Clause 2 of this Article;

e) Foreign organizations and individuals are on the United Nations Security Council sanctions list.

2. Cases in which the representative office establishment license is revoked:

a) The representative office fails to officially come into operation within 06 months from the date on which it is issued with the establishment license;

b) The representative office has shut down its operation for 06 consecutive months without notifying the licensing authority;

c) The representative office fails to function properly as a representative office according to Vietnam's laws and relevant international conventions to which Vietnam is a signatory;

d) The representative office violates Vietnam’s labor laws so seriously that it faces criminal charges.

3. At least 90 days before the expected date of shutdown of the representative office according to Points a, b and c Clause 1 of this Article, the foreign trade promotion organization shall send a notice of the shutdown to creditors, personnel of the representative office and persons who has other relevant rights, obligations and interests. This notice shall specify the expected date of shutdown of the representative office, be openly posted at the headquarters of the representative office and published on a printed newspaper or online newspaper that is licensed to in 03 consecutive issues.

4. In the case of shutdown of the representative office specified in Point a Clause 1 of this Article, at least 90 days before the expected date of shutdown of the representative office, the foreign trade promotion organization shall submit 01 application for shutdown of the representative office to the licensing authority, including:

a) An application form (Form No. 07 in the Appendix 1 hereof);

b) Documentary evidences for openly posting the shutdown of the representative office at the headquarters of the representative office and publishing it on a printed newspaper or online newspaper.

5. The application may be submitted:

a) by post to the licensing authority; or

b) directly to the licensing authority. The application shall have a letter of introduction or a power of attorney of the foreign trade promotion organization’s representative office.

6. In the case of shutdown of the representative office specified in Point a Clause 1 of this Article, within 30 days from the date on which the application for shutdown of the representative office is received but no notice or complaint of relevant organizations and individuals is received, the licensing authority shall consider approving shutdown of the representative office and revoke the license within 07 working days,

7. Within 15 days from the date on which the decision on refusal to extend the representative office establishment license or the decision on revocation of the license (Form No. 08 in the Appendix hereof) prescribed in Point dd Clause 1 of this Article is issued, the licensing authority shall publish information on the website of the licensing authority and notify the People's Committees of provinces, Departments of Industry and Trade, tax authorities, statistical authorities and police authorities of provinces where the representative office is located.

8. Within 07 days from the date of granting approval for shutdown of the representative office and revoking the license, the licensing authority shall notify the shutdown of the representative office to the People's Committees of provinces, Departments of Industry and Trade, tax authorities, statistical authorities and police authorities of provinces where the representative office is located.

9. At least 15 days before the representative office is shut down as prescribed in Points a, b and c Clause 1 of this Article, the foreign trade promotion organization and representative office shall pay all debts and discharge other obligations to the state and relevant organizations and individuals in accordance with applicable laws.

10. Within 60 days from the date on which the representative office is shut down as prescribed in Points d and dd Clause 1 of this Article, the foreign trade promotion organization shall pay all debts and discharge other obligations to the state and relevant organizations and individuals in accordance with applicable laws.