Chương 2 Nghị định 87/2003/NĐ-CP: Điều kiện hành nghề, hình thức hành nghề, thủ tục cấp phép đối với tổ chức luật sư nước ngoài

Chapter II

PRACTICING CONDITIONS, PROFESSION-PRACTICING FORMS AND LICENSING PROCEDURES FOR FOREIGN LAWYERS' ORGANIZATIONS

Article 7.- Profession-practicing conditions

Foreign lawyers' organizations lawfully established and practicing the lawyer's profession in foreign countries and having goodwill toward the Vietnamese State shall be licensed to practice their profession in Vietnam according to the provisions of this Decree.

Article 8.- Profession-practicing forms

Foreign lawyers organizations shall practice their profession in Vietnam in the following forms:

1. Branches of foreign lawyers' organizations (hereinafter referred to as branches for short).

2. Foreign law firms.

3. Law partnerships between foreign lawyers' organizations and Vietnamese law partnerships (hereinafter referred to as foreign-Vietnam law partnerships for short).

Article 9.- Branches

1. Branches are dependent units of foreign lawyers' organizations, which are set up in Vietnam according to the provisions of this Decree.

2. Branches bear unlimited liability for their operations before the Vietnamese law.

3. A foreign lawyers' organization shall designate one lawyer to act as the head of its branch. The branch head shall manage and run the branch's operations in Vietnam and act as the branch's representative at law. A branch head may be a foreign lawyer or a Vietnamese lawyer.

Article 10.- Foreign law firms

1. Foreign law firms are lawyer's profession-practicing organizations established in Vietnam by one or many foreign lawyers' organizations according to the provisions of this Decree.

2. Foreign law firms shall manage by themselves and take unlimited liability for all their operations before the Vietnamese law.

3. Directors of foreign law firms are representatives at law of the firms. Directors of foreign law firms may be either foreign lawyers or Vietnamese lawyers.

Article 11.- Foreign-Vietnam law partnerships

1. Foreign-Vietnam law partnerships are lawyer's profession-practicing organizations established in Vietnam on the basis of partnership contracts between one or several foreign lawyers' organizations and one or several Vietnamese law partnerships according to the provisions of this Decree.

2. Partners to foreign-Vietnam law partnerships shall bear unlimited joint liability for all operations of the partnerships before the Vietnamese law.

3. The rights and obligations of, and relationships between, partners, the organizational structure and management of foreign-Vietnam law partnerships shall be agreed upon by partners and specified in their partnership contracts.

4. Directors of foreign-Vietnam law partnerships are representatives at law of the partnerships. Directors of foreign-Vietnam law partnerships may be either foreign lawyers or Vietnamese lawyers.

Article 12.- Dossiers of application for setting up branches

A dossier of application for setting up a branch comprises the following papers:

1. An application for setting up a branch;

2. Copies of papers evidencing the lawful establishment of the foreign lawyers' organization, issued by foreign competent agencies or organizations;

3. Written introduction of the operation of the foreign lawyers' organization;

4. The list of foreign lawyers expected to work at the branch, enclosed with their dossiers of application for licenses for professional practice in Vietnam;

5. The decision on designation of a lawyer to act as the branch head.

Article 13.- Contents of applications for setting up branches

An application for setting up a branch must have the following principal contents:

1. The full name, nationality and address of the head office of the foreign lawyers' organization;

2. The name of the branch;

3. The domains of the branch's professional practice;

4. The operation duration of the branch;

5. The location of the branch's office;

6. The full name of the lawyer appointed to be the branch head by the foreign lawyers' organization.

Article 14.- Dossiers of application for establishment of foreign law firms

A dossier of application for establishment of a foreign law firm comprises:

1. An application for establishment of a foreign law firm;

2. Copies of papers evidencing the lawful establishment of the foreign lawyers' organization, issued by foreign competent agencies or organizations;

3. Written introduction of the operation of the foreign lawyers' organization;

4. The list of foreign lawyers expected to work at the firm, enclosed with their dossiers of application for licenses for professional practice in Vietnam;

5. The charter of the foreign law firm.

Article 15.- Contents of applications for establishment of foreign law firms

An application for establishment of a foreign law firm must have the following principal contents:

1. The full name, nationality and address of the head office of the foreign lawyers' organization;

2. The name of the foreign law firm;

3. The domains of the foreign law firm's professional practice;

4. The operation duration of the foreign law firm;

5. The location of the foreign law firm's office;

6. The full name of the lawyer designated to be the director of the foreign law firm.

Article 16.- Contents of charters of foreign law firms

The charter of a foreign law firm must have the following principal contents:

1. The names and addresses of the head office and branches (if any); the full name and address of the competent representative of the foreign lawyers' organization;

2. The domain of the foreign law firm's professional practice;

3. Rights, obligations and responsibilities of, and relationships between, member lawyers of the foreign law firm;

4. The organizational structure and management of the foreign law firm;

5. The representative at law of the foreign law firm;

6. Operation duration and conditions for termination of operation of the foreign law firm;

7. Mode of amending and supplementing the charter of the foreign law firm.

Article 17.- Dossiers of application for establishment of foreign-Vietnam law partnerships

A dossier of application for establishment of a foreign-Vietnam law partnership comprises the following papers:

1. An application for establishment of a foreign-Vietnam law partnership;

2. Copies of papers evidencing the lawful establishment of the foreign lawyers' organization, copy of the written operation registration of the Vietnamese law partnership;

3. Written introduction of the operations of the foreign lawyers' organization and the Vietnamese law partnership;

4. The list of foreign lawyers expected to work at the foreign-Vietnam law partnership, enclosed with their dossiers of application for licenses for professional practice in Vietnam; the list of Vietnamese lawyers expected to work at the foreign-Vietnam law partnership, enclosed with copies of their profession-practicing certificates and their lawyer's cards;

5. The partnership contract.

Article 18.- Contents of applications for establishment of foreign-Vietnam law partnerships

An application for establishment of a foreign-Vietnam law partnership must have the following principal contents:

1. The name, nationality and the address of the head office of the foreign lawyers' organization; the name and the address of the head office of the Vietnamese law partnership;

2. The name of the foreign-Vietnam law partnership;

3. The domains of the foreign-Vietnam law partnership's professional practice;

4. The operation duration of the foreign-Vietnam law partnership's office;

5. The location of the foreign-Vietnam law partnership's office;

6. The full names of the lawyers being the director and deputy-directors of the foreign-Vietnam law partnership.

Article 19.- Contents of partnership contracts

A partnership contract must have the following principal contents:

1. The names, addresses and competent representatives of the partners; the name and address of the foreign-Vietnam law partnership;

2. The domains of the foreign-Vietnam law partnership's professional practice;

3. Rights and obligations of, and relationships between, the partners; rights and obligations of lawyers being members to the foreign-Vietnam law partnership;

4. The organizational structure and management of the foreign-Vietnam law partnership;

5. The representative at law of the foreign-Vietnam law partnership;

6. The operation duration of the foreign-Vietnam law partnership;

7. Mode of amending and terminating the contract, the conditions for terminating the operation of the foreign-Vietnam law partnership.

Article 20.- Procedures for granting licenses for establishment of branches, foreign law firms or foreign-Vietnam law partnerships

Dossiers of application for establishment of branches, foreign law firms or foreign-Vietnam law partnerships (hereinafter referred collectively to as Vietnam-based foreign lawyer's profession-practicing organizations) shall be sent to the Justice Ministry. Within 60 days after receiving complete and valid dossiers and fee, the Justice Ministry shall examine dossiers and grant or refuse to grant licenses.

A license shall be made in three (3) copies: One copy shall be granted to the foreign lawyers' organization in Vietnam, one copy sent to the People's Committee of the province or centrally-run city where the office of the Vietnam-based foreign lawyer's profession-practicing organization is located, and another kept at the Justice Ministry.

Licenses shall be valid as from the date of their signing.

In case of refusal to grant licenses, the Justice Ministry must notify such in writing and clearly state the reason(s) therefor.

Article 21.- Registration of operation of Vietnam-based foreign lawyer's profession-practicing organizations

1. Within 60 days as from the date they are granted licenses, Vietnam-based foreign lawyer's profession-practicing organizations shall have to register their operation with the Justice Services of the provinces or centrally-run cities where their offices are located.

2. A dossier for operation registration comprises the following papers:

a/ Copy of the license for establishment of the Vietnam-based foreign lawyer's profession-practicing organization;

b/ Paper(s) evidencing the location of the Vietnam-based foreign lawyer's profession-practicing organization's office.

3. Within 15 days after the date of receiving complete and valid dossiers, the provincial/municipal Justice Services shall have to grant written operation registrations to the Vietnam-based foreign lawyer's profession-practicing organizations.

Vietnam-based foreign lawyer's profession-practicing organizations may operate only as from the date they are granted written operation registrations.

Article 22.- Publication on newspapers and notification of the establishment of Vietnam-based foreign lawyer's profession-practicing organizations

Within 15 days after being granted written operation registrations, Vietnam-based foreign lawyer's profession-practicing organizations shall have to publish their establishment on a local or central newspaper for three consecutive issues; and notify in writing the bar associations and tax offices of the localities where their offices are located of the following principal contents:

1. The names and addresses of their offices;

2. The profession-practicing domains;

3. The full names of branch heads, directors of foreign law firms or directors of foreign-Vietnam law partnerships.

Article 23.- Changes in contents of licenses for establishment of Vietnam-based foreign lawyer's profession-practicing organizations

1. When a Vietnam-based foreign lawyer's profession-practicing organization changes one of the following contents of its establishment license, it shall have to file an application for permission of the Justice Ministry and may make change(s) only after it obtains the Justice Ministry's written approval:

a/ Its name.

b/ Its office, which is relocated from one province or centrally-run city to another.

c/ The branch head, director of the foreign law firm or director of the foreign-Vietnam law partnership.

d/ Its profession-practicing domain.

2. Within 30 days after the written approval of the change in the license content takes effect, the Vietnam-based foreign lawyer's profession-practicing organization shall have to register such change at the Justice Service of the locality where its office is located.

When making changes in the contents of their licenses, Vietnam-based foreign lawyer's profession-practicing organizations shall have to publish on newspapers or notify contents of such changes according to the provisions in Article 22 of this Decree.

Article 24.- Branches of foreign law firms or foreign-Vietnam law partnerships

1. Foreign law firms and foreign-Vietnam law partnerships are entitled to set up their branches outside the provinces or centrally-run cities where their head offices are located.

2. Branches are dependent units of foreign law firms or foreign-Vietnam law partnerships and are allowed to perform tasks under authorization of their foreign law firms or foreign-Vietnam law partnerships in line with the profession-practicing domains inscribed in the licenses of the foreign law firms or foreign-Vietnam law partnerships.

3. Foreign law firms and foreign-Vietnam law partnerships shall be responsible for their branches' operations .

4. A dossier of application for a permit to set up a branch comprises the following papers:

a/ An application for a permit to set up a branch;

b/ Copy of the establishment license of the foreign law firm or the foreign-Vietnam law partnership;

c/ Mandate for a lawyer to act as the branch head;

d/ Copy of the practice license of the lawyer mandated to act as the branch head;

e/ Papers evidencing the branch's office location.

5. Dossiers of application for permits to set up branches shall be sent to the Justice Ministry. Within 30 days after receiving complete and valid dossiers and fee, the Justice Ministry shall examine them and decide to permit or refuse to permit the setting up of branches.

In case of refusal to permit the setting up of branches, the Justice Ministry shall have to notify such in writing and clearly state the reasons therefor.

6. Within 15 days after receiving decisions permitting them to set up branches, foreign law firms or foreign-Vietnam law partnerships shall have to register the operation of their branches with the provincial/municipal Justice Services of localities where the branch offices are located.

7. The procedures for publishing on newspapers and notify the setting up of branches of foreign law firms or foreign-Vietnam law partnerships shall comply with the provisions in Article 22 of this Decree.

Article 25.- Amalgamation of foreign law firms

Two or more foreign law firms may agree to amalgamate themselves into one foreign law firm.

Procedures for amalgamation are prescribed as follows:

1. The concerned foreign law firms prepare contracts on amalgamation and contracts on establishment of new foreign law firms.

The amalgamation contracts must contain provisions on procedures and conditions for amalgamation, labor use plans; duration, procedures and conditions for asset transfer; time limit for effecting the amalgamation.

Contracts on establishment of new foreign law firms have the same contents as partnership contracts prescribed in Article 19 of this Decree.

Within 10 days after receiving the amalgamation applications and valid dossiers, the Justice Ministry shall issue decisions approving the amalgamation in form of granting licenses for establishment of foreign law firms. In case of refusal, the reasons therefor must be notified in writing.

2. Procedures for registering operation, publishing on newspapers and notifying the establishment of new foreign law firms shall comply with the provisions in Articles 21 and 22 of this Decree.

After the new foreign law firms are granted written operation registrations, the old foreign law firms shall terminate their existence. The new foreign law firms shall enjoy the rights and legitimate interests, be liable to unpaid debts, legal service contracts currently being performed, labor contracts already signed with lawyers, staff members and other property obligations of the foreign law firms.

Article 26.- Merger of foreign law firms

One or several foreign law firms may be merged into another foreign law firm

Procedures for merging foreign law firms are prescribed as follows:

1. The concerned foreign law firms prepare merger contracts. Merger contracts must contain provisions on labor use plans; duration, procedures and conditions for property transfer; procedures and time limit for effecting the merger.

2. Merging foreign law firms shall not have to make operation registration but shall only carry out the procedures for changing the contents of their establishment licenses according to the provisions in Article 23 of this Decree.

Merging foreign law firms shall enjoy the rights and legitimate interests, bear liability for unpaid debts, legal service contracts being currently performed and labor contracts already signed with lawyers, staff members, and other property obligations of the merged foreign law firms.

Article 27.- Temporary suspension of operation

1. Vietnam-based foreign lawyer's profession-practicing organizations shall temporarily suspend their operation in the following cases:

a/ They decide at their own will on temporary operation suspension.

b/ They are administratively sanctioned in the form of suspending operation for a definite time.

2. In cases where Vietnam-based foreign lawyer's profession-practicing organizations temporarily suspend their operation according to the provisions at Point a, Clause 1 of this Article, they shall have to notify such in writing to the Justice Ministry at least 30 days before the planned date of temporary operation suspension.

Vietnam-based foreign lawyer's profession-practicing organizations shall be allowed to temporarily suspend operation as from the date they obtain written approval of the Justice Ministry.

3. Within 15 days at most after obtaining the Justice Ministry's written approval or decisions on operation suspension for a definite time, Vietnam-based foreign lawyer's profession-practicing organizations shall have to notify in writing the operation suspension to the provincial/municipal Justice Services, bar associations and tax offices of the localities where their offices are located.

4. During the temporary operation suspension, Vietnam-based foreign lawyer's profession-practicing organizations shall have to fully pay their tax arrears; be liable to pay other debts and bear responsibility for legal consultancy contracts already signed with their clients and labor contracts already signed with lawyers and staff members, except otherwise agreed upon by the concerned parties.

5. At least 30 days before the planned date of operation resumption, Vietnam-based foreign lawyer's profession-practicing organizations shall have to report in writing to the Justice Ministry, the provincial/municipal Justice Services, bar associations and tax offices of the localities where they are headquartered on the operation resumption.

Article 28.- Termination of operation

1. Vietnam-based foreign lawyer's profession-practicing organizations shall terminate their operation in the following cases:

a/ They terminate their operation at their own will.

b/ Their licenses are withdrawn.

2. In cases where Vietnam-based foreign lawyer's profession-practicing organizations terminate operation at their own will, they shall, at least 30 days before the planned time of operation termination, have to notify in writing the operation termination to the Justice Ministry and the Justice Services of the provinces and centrally-run cities where they register their operation and the concerned competent State agencies.

Within 15 days after receiving notices on operation termination of Vietnam-based foreign lawyer's profession-practicing organizations, the Justice Ministry shall issue decisions on operation termination of such Vietnam-based foreign lawyer's profession-practicing organizations.

Before the time of operation termination, Vietnam-based foreign lawyer's profession-practicing organizations shall have to pay fully tax arrears and other debts, complete procedures for terminating labor contracts already signed with lawyers and staff members, and liquidate legal consultancy contracts signed with their clients, except otherwise agreed upon.

3. In case of withdrawal of establishment licenses, Vietnam-based foreign lawyer's profession-practicing organizations shall, within 60 days after the issuance of the Justice Ministry's decisions on operation termination or decisions on sanctioning administrative violations by mode of license withdrawal, have to pay fully tax arrears and other debts, complete procedures for terminating labor contracts already signed with lawyers and staff members, and liquidate legal consultancy contracts signed with their clients, except otherwise agreed upon.

Vietnam-based foreign lawyer's profession-practicing organizations shall have to report in writing to the Justice Ministry, provincial/municipal Justice Services, bar associations and tax offices of the localities where they are headquartered on the completion of the said procedures; return their licenses to the Justice Ministry, their operation registrations to the Justice Services and their seals to the agencies competent to grant and register the use thereof.