Nghị định 45/2000/NĐ-CP quy định về văn phòng đại diện chi nhánh của thương nhân nước ngoài và của doanh nghiệp du lịch nước ngoài tại Việt Nam

DECREE

PROVIDING FOR VIETNAM-BASED REPRESENTATIVE OFFICES AND BRANCHES OF FOREIGN TRADERS AND FOREIGN TOURIST ENTERPRISES

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;
Pursuant to the Commercial Law of May 10, 1997;
Pursuant to the Ordinance on Tourism of February 8, 1999;
At the proposals of the Trade Minister and the General Director of Tourism,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation

This Decree provides for Vietnam-based representative offices and branches of foreign traders (prescribed by the Commercial Law) and foreign tourist enterprises (prescribed by the Ordinance on Tourism).

Hereinafter "Vietnam-based representative offices of foreign traders and foreign tourist enterprises" and "Vietnam-based branches of foreign traders and foreign tourist enterprises" shall be referred to for short as "representative offices" and "branches" respectively.

Article 2.- Representative offices, branches

1. Representative offices are dependent units of foreign traders or foreign tourist enterprises, which are established under Vietnamese law in order to seek and promote opportunities for commercial or tourist activities, but not allowed to directly engage in profit-making business.

A foreign trader or foreign tourist enterprise may establish in Vietnam one or more representative offices but may not set up branches of his/her/its representative office(s) in Vietnam.

2. Branches are dependent units of foreign traders or foreign tourist enterprises, which are established under Vietnamese law to conduct commercial or tourist activities in Vietnam for direct profit-making purposes.

A foreign trader or foreign tourist enterprise may establish one branch in Vietnam to deal in goods and/or services on the "List of goods and services for which the branches of foreign traders and foreign tourist enterprises are allowed to do business in Vietnam", issued together with this Decree; but must not set up representative office(s) of his/her/its branch in Vietnam.

3. The chief of a representative office or a branch director may be a foreigner or Vietnamese.

4. Representative offices, branches and their staff have their legitimate rights and interests protected by the State of Vietnam and are obliged to abide by Vietnamese law; are not entitled to the immunity status reserved for foreign diplomatic missions, consulates and representations of international and inter-governmental organizations in Vietnam.

Article 3.- Responsibilities of foreign traders, foreign tourist enterprises and their representative offices, branches

1. Foreign traders, foreign tourist enterprises having representative offices and/or branches in Vietnam shall take responsibility before Vietnamese law for all activities of their representative offices and/or branches.

2. Representative offices and branches shall, in all their activities, have to abide by Vietnamese law and directly exercise their rights and fulfill their obligations prescribed by Vietnamese law.

Article 4.- Permit-granting agencies

1. The Trade Ministry shall have to grant, amend, supplement and withdraw permits for the establishment of branches operating in the field of trade.

2. The General Department of Tourism shall have to grant, amend, supplement and withdraw permits for the establishment of representative offices and branches operating in the field of tourism.

3. The Trade Ministry shall have to grant, amend, supplement and withdraw permits for the establishment of branches operating in the fields of trade and tourism, after reaching agreement with the General Department of Tourism.

4. The People’s Committees of the provinces and centrally-run cities (hereinafter called the provincial-level People’s Committees for short) where foreign traders apply for the establishment of their representative offices shall have to grant, amend, supplement and withdraw permits for the establishment of representative offices operating in the field of trade.

5. The provincial-level People’s Committees of the localities where foreign traders operating in the fields of trade and tourism apply for the establishment of their representative offices shall have to grant, amend, supplement and withdraw permits for the establishment of representative offices operating in the fields of trade and tourism, after reaching agreement with the General Department of Tourism.

Chapter II

GRANTING, AMENDMENT AND SUPPLEMENT OF PERMITS FOR REPRESENTATIVE OFFICE AND BRANCH ESTABLISHMENT

Article 5.- Conditions for being granted permits for establishment of representative offices and branches

1. Foreign traders, foreign tourist enterprises shall be granted permits to establish their representative offices in Vietnam when having lawful business registration under foreign laws.

2. Foreign traders, foreign tourist enterprises shall be granted permits to establish their branches in Vietnam when they fully meet the following conditions:

a/ Having lawful business registration under foreign laws;

b/ Having been operating for not less than 5 years after registering their business;

c/ Dealing in goods and/or services on the "List of goods and services for which branches of foreign traders and foreign tourist enterprises are allowed to do business in Vietnam", which is issued together with this Decree; and reviewed, supplemented for each period.

Article 6.- Dossiers of application for permits to establish representative offices and branches

A dossier of application for the permit to set up a representative office or a branch shall include:

1. The foreign trader’s or foreign tourist enterprise’s application for the permit to set up a representative office or branch (which is made according to the form jointly set by the Trade Ministry and the General Department of Tourism).

2. The copy of the business registration certificate of the foreign trader or foreign tourist enterprise, certified by the foreign competent agency and the Vietnamese translation of such business registration certificate, notarized by the domestic Notary Public or certified by the overseas Vietnamese diplomatic mission or consulate.

Article 7.- Granting permits for establishment of representative offices or branches

1. Foreign traders and foreign tourist enterprises shall send dossiers of application for permits to set up their representative offices and/or branches to the permit-granting agencies defined in Article 4 of this Decree.

2. Within 15 days after receiving the complete and valid dossiers, the permit-granting agencies shall grant the permits for representative office or branch establishment to foreign traders and send the copies thereof to the concerned agencies according to the following stipulations:

a/ Where the permits are granted by the Trade Ministry, the copies thereof shall be sent to the provincial/municipal Trade Services or Trade-Tourism Services, provincial-level tax offices and statistical offices of the localities where the branches are headquartered; if they are permits for the establishment of branches operating in the fields of trade and tourism, the copies thereof shall also be sent to the General Department of Tourism.

b/ Where the permits are granted by the General Department of Tourism, the copies thereof shall be sent to the provincial/municipal Tourism Services or Trade-Tourism Services, the provincial-level tax offices and statistical offices of the localities where the representative offices or branches are headquartered.

c/ Where the permits are granted by the provincial-level People’s Committees, the copies thereof shall be sent to the Trade Ministry, the provincial-level tax offices and statistical offices of the localities where the representative offices are headquartered; if they are permits for the establishment of representative offices operating in the fields of trade and tourism, the copies thereof shall also be sent to the General Department of Tourism.

3. Where a dossier is incomplete or invalid, within 3 working days after receiving it, the permit- granting agency shall have to notify such in writing to the concerned foreign trader or foreign tourist enterprise so that the latter may supplement and complete it.

4. The contents of operation of representative offices and branches shall be clearly inscribed in their permits.

Article 8.- Notification of operations of representative offices and branches

Within 45 days after being granted the permits, representative offices or branches shall have to officially commence their operations and notify in writing the permit- granting agencies of their headquarters location, the number of Vietnamese and foreign staff working therein.

Article 9.- Change of the permits’ contents

When having a demand to change one, several or all of the following contents of the permits for representative office or branch establishment, foreign traders or foreign tourist enterprises shall have to send their written requests to the permit-granting agencies for:

1. Changing the names and/or nationalities of foreign traders, foreign tourist enterprises or the appellations of their representative offices and/or branches;

2. Increasing the number of foreigners working in the representative offices or branches;

3. Changing the contents of operation of the representative offices or branches;

4. Relocating the headquarters of the representative offices or branches.

Within 10 days after receiving the requests from foreign traders or foreign tourist enterprises, the permit-granting agencies shall have to grant the foreign traders or foreign tourist enterprises new permits which have already been amended and supplemented and send their copies to the eligible agencies defined in Clause 2, Article 7 of this Decree.

Where a representative office operating in the fields of trade and tourism is removed from one to another province or centrally-run city, the concerned foreign trader shall have to fill in the procedures to apply for a new representative office-establishment permit according to the provisions of Articles 6 and 7 of this Decree.

Article 10.- Fees for permit granting, amendment and supplement

1. Foreign traders, foreign tourist enterprises shall have to pay fees for the permit granting, amendment and supplement.

2. The Finance Ministry shall assume the prime responsibility and coordinate with the Trade Ministry and the General Department of Tourism in specifying the levels as well as the management and use of fees prescribed in Clause 1 of this Article.

Article 11.- Termination of operations of representative offices or branches

1. Representative offices and branches shall terminate their operations in the following cases:

a/ At the request of concerned foreign traders or foreign tourist enterprises;

b/ Upon the termination of operations of concerned foreign traders or foreign tourist enterprises;

c/ Upon the issuance of decisions on the withdrawal or cancellation of their permits by the State competent agencies prescribed by Vietnamese law.

2. In case of operation termination under the provisions at Points a and b, Clause 1 of this Article, foreign traders or foreign tourist enterprises shall have to send written notices on termination of operations of their representative offices or branches to the permit-granting agencies within 30 days before the termination date and return the permits to the permit-granting agencies.

Within 7 days, the permit- granting agencies shall have to notify the termination of operations of representative offices or branches to the agencies, to which the copies of permits for representative office or branch establishment were forwarded, defined in Clause 2, Article 7 of this Decree.

3. In case of operation termination under the provisions at Point c, Clause 1 of this Article, the permit- granting agencies shall have to send the concerned foreign traders or foreign tourist enterprises decisions on the withdrawal or cancellation of the permits for representative office or branch establishment at least 30 days before the representative offices and/or branches are forced to terminate their operations, and send the copies thereof to the agencies which received the copies of the permits for representative office or branch establishment prescribed in Clause 2, Article 7 of this Decree.

Article 12.- Obligations of foreign traders, foreign tourist enterprises and their representative offices, branches upon the termination of operations of representative offices and/or branches

Before their representative offices and/or branches terminate operations in Vietnam, foreign traders and foreign tourist enterprises shall have to fully pay debts and perform other obligations towards the State, concerned organizations and individuals in Vietnam.

The provincial-level People’s Committees shall have to monitor, supervise and urge the implementation of the said provisions by representative offices and branches in their respective localities.

Chapter III

OPERATION CONTENTS, RIGHTS AND OBLIGATIONS OF REPRESENTATIVE OFFICES AND BRANCHES

Article 13.- Contents of operation of representative offices and branches

1. Contents of operations of representative offices

a/ Proceeding with the elaboration of economic, trade and tourist cooperation projects in Vietnam;

b/ Seeking, promoting opportunities for goods purchase and sale, the provision of trade and tourist services in Vietnam;

c/ Monitoring and urging the performance of contracts concluded by foreign traders or foreign tourist enterprises represented by them.

2. Contents of operation of branches

The contents of operation of branches are specified in the branch-establishment permits in conformity with the contents of operation of foreign traders or foreign tourist enterprises, based on the "List of goods and services for which branches of foreign traders and foreign tourist enterprises are allowed to do business in Vietnam", issued together with this Decree.

Article 14.- Rights and obligations of representative offices and their staff

Representative offices and their staff shall exercise the rights and perform the obligations provided for in the Commercial Law, the Ordinance on Tourism and according to the following concrete stipulations:

1. Representative offices are allowed to operate according to the specific contents stated in their establishment permits.

2. The chiefs of representative offices are entitled to sign goods purchase and sale or services provision contracts (except for tour business and tourist transportation contracts) with Vietnamese traders or tourist enterprises when obtaining valid authorization papers from foreign traders or foreign tourist enterprises for each contract.

3. People working in representative offices shall have to pay taxes according to Vietnamese law.

4. Once a year, representative offices shall have to report on their operations to the permit-granting agencies before the last working day of January of the following year.

In case of necessity, at the written requests of the competent agencies prescribed by Vietnamese law, representative offices shall have to report and supply documents or expositions on matters related to their operations.

Article 15.- Rights and obligations of branches and their staff

Branches and their staff shall exercise the rights and perform the obligations provided for in the Commercial Law, the Ordinance on Tourism and according to the following concrete stipulations:

1. Branches are allowed to operate according to the contents inscribed in their permits.

2. People working in branches shall have to pay taxes as prescribed by Vietnamese law.

3. Branches shall have to apply the accounting regime prescribed by Vietnamese law and may apply another common accounting regime only when it is approved by the Finance Ministry.

A branches fiscal year shall be counted from January 1st to the end of December 31st of a year.

4. Once a year before the last working day of March of the following year, branches shall have to send to the permit-granting agencies reports on their operations in the previous year and financial statements certified by the Vietnamese auditing agencies or independent auditing agencies licensed to operate in Vietnam.

When necessary, at the written requests of the competent agencies prescribed by Vietnamese law, branches shall have to report, supply documents or expositions on matters related to their operations.

Chapter IV

RESPONSIBILITIES OF THE STATE MANAGEMENT AGENCIES FOR OPERATIONS OF REPRESENTATIVE OFFICES AND BRANCHES

Article 16.- Responsibilities of the Trade Ministry

1. To assume the prime responsibility and coordinate with the General Department of Tourism in drafting and submitting to the competent authorities for promulgation or to promulgate according to its own competence legal documents on representative offices and branches;

2. To grant, amend, supplement and withdraw the branch-establishment permits according to the provisions at Points 1 and 3, Article 4 of this Decree.

3. To examine, inspect the work of State management over the activities of representative offices and branches operating in the field of trade throughout the country.

4. To assume the prime responsibility and coordinate with the relevant ministries, branches and localities in examining and inspecting representative offices and branches operating in the field of trade when deeming it necessary or at the requests of ministries, branches or localities.

5. To handle violations according to its jurisdiction.

Article 17.- Responsibilities of the General Department of Tourism

1. To coordinate with the Trade Ministry in drafting and submitting to the competent authorities for promulgation or to promulgate according to its competence legal documents on representative offices and branches.

2. To grant, amend, supplement and withdraw permits according to the provisions at Point 2, Article 4 of this Decree.

3. To examine, inspect the work of State management over the activities of representative offices and branches operating in the field of tourism throughout the country.

4. To assume the prime responsibility and coordinate with the relevant ministries, branches and localities in examining and inspecting representative offices and branches operating in the field of tourism when deeming it necessary or at the requests of ministries, branches or localities.

5. To coordinate with the Trade Ministry in examining and inspecting branches operating in the fields of trade and tourism.

6. To handle violations according to its jurisdiction.

Article 18.- Responsibilities of the ministries, ministerial-level agencies and agencies attached to the Government

1. To coordinate with the Trade Ministry, the General Department of Tourism and the provincial-level Peoples Committees of the localities where representative offices and branches are headquartered in settling problems relating to activities of such representative offices and branches in the fields under their management.

2. To join the Trade Ministry, the General Department of Tourism and the provincial-level Peoples Committees in examining and inspecting activities of representative offices and branches in the fields under their management.

Article 19.- Responsibilities of the provincial-level People’s Committees

1. To exercise, according to their competence, the State management over operations of representative offices and branches in their respective localities.

2. To grant, amend, supplement and withdraw permits for the establishment of representative offices operating in the fields of trade, trade and tourism, in their respective localities according to the provisions in Clauses 4 and 5, Article 4 of this Decree;

3. To organize, examination and inspection of operations of representative offices and branches according to their competence;

4. To coordinate with the Trade Ministry and the General Department of Tourism in examining and inspecting operations of representative offices and branches in their respective localities;

5. To handing violations according to their jurisdiction.

Chapter V

HANDLING OF VIOLATIONS

Article 20.- Handling violations committed by representative offices and branches and their staff

1. Representative offices and branches violating the provisions of this Decree shall be administratively sanctioned according to the provisions of Vietnamese law.

2. Staff of representative offices and branches who violate the provisions of this Decree shall, depending on the nature and seriousness of their violations, be administratively sanctioned or examined for penal liabilities according to the provisions of Vietnamese law.

Article 21.- Handling violations committed by officials and public employees

If officials and public employees violate the provisions of this Decree while on duty, they shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liabilities according to the provisions of Vietnamese law.

Chapter VI

IMPLEMENTATION PROVISIONS

Article 22.- Implementation provisions

1. This Decree takes effect as from October 1st, 2000 and replaces Decree No.82-CP of August 2, 1994 issuing the Regulation on the establishment and operation of representative offices of foreign economic organizations in Vietnam.

2. Representative offices established before the effective date of this Decree shall continue their operations according to the provisions of this Decree.

Within 30 days after this Decree takes effect, representative offices which were established before the effective date of this Decree shall have to notify in writing the permit-granting agencies defined in Article 4 of this Decree of the names of traders, names of representative offices, their headquarters locations and major operation contents.

3. The Prime Minister shall consider and decide the continuation of operations of foreign traders’ branches established before the effective date of this Decree, which deal in goods and/or tourist services outside the "List of goods and services for which branches of foreign traders and foreign tourist enterprises are allowed to do business in Vietnam", issued together with this Decree.

4. The Ministry of Trade shall assume the prime responsibility and coordinate with the General Department of Tourism in guiding the implementation of this Decree.

5. 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.

LIST

OF GOODS AND SERVICES FOR WHICH BRANCHES OF FOREIGN TRADERS ARE ALLOWED TO DO BUSINESS IN VIETNAM

(issued together with the Government’s Decree No.45/2000/ND-CP of September 6, 2000)

I. GOODS PURCHASED IN VIETNAM FOR EXPORT:

1. Handicraft and fine art articles;

2. Processed agricultural produce and agricultural produce (except rice and coffee);

3. Vegetables, fruits and processed vegetables, fruits;

4. Industrial consumer goods;

5. Meat of domestic animals and poultry and processed foodstuff.

II. GOODS IMPORTED FOR SALE ON THE VIETNAMESE MARKET

Foreign traders gaining foreign currency revenues from the export of goods defined in Section I of this List shall be entitled to import the following goods for sale on the Vietnamese market, provided that they have permits issued by the Trade Ministry and their import quotas do not exceed the export ones:

1. Machinery, equipment in service of mineral exploitation or processing of agricultural or aquatic products;

2. Raw materials for production of curative medicines for human use and veterinary drugs;

3. Raw materials for production of fertilizers, pesticides.