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No. 45/2000/ND-CP
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THE
GOVERNMENT SOCIALIST REPUBLIC OF VIETNAM
Independence
– Freedom – Happiness
--------- * --------- |
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Hanoi,
September 6, 2000
DECREE
OF THE GOVERNMENT
Setting
Forth Regulations on
Representative
Offices and Branches in Vietnam
of
Foreign Merchants and Foreign Tourism Enterprises
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| THE
GOVERNMENT, |
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-
-
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Pursuant to the Law on the Organization of the
Government dated September 30, 1992;
Pursuant to the Commercial Law dated May 10, 1997;
Pursuant to the Ordinance on Tourism dated February
8, 1999; [and]
Based on the proposals of the Minister of the
Ministry of Trade and the General Director of
the General Department of Tourism,
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DECREES:
Chapter
I
GENERAL
PROVISIONS
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Article 1: Scope
of Application
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This
Decree sets forth regulations on representative
offices and branches in Vietnam of foreign merchants
(pursuant to the provisions of the Commercial
Law) and of foreign tourism enterprises (pursuant
to the provisions of the Ordinance on Tourism).
"Representative
offices in Vietnam of foreign merchants and foreign
tourism enterprises" are hereinafter referred
to as "Representative Offices", and
"Branches in Vietnam of foreign merchants
and foreign tourism enterprises" are hereinafter
referred to as "Branches".
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>> Article 2:
Representative
Offices and Branches
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A
Representative Office is a dependent unit
of a foreign merchant or foreign tourism enterprise,
which is established under the laws of Vietnam
for the purposes of exploring and promoting
opportunities for commercial [and/or] tourist
activities, and which is not entitled to do
business directly to generate profits.
A
foreign merchant or foreign tourism enterprise
may establish in Vietnam one or several Representative
Offices but may not establish a Branch under
an [existing] Representative Office in Vietnam.
-
A
Branch is a dependent unit of a foreign merchant
or foreign tourism enterprise, which is established
under the laws of Vietnam for the purpose
of engaging in commercial [and/or] tourist
activities in Vietnam in order to generate
profits directly.
A
foreign merchant or foreign tourism enterprise
may establish one Branch in Vietnam for the
purpose of doing business in the goods [and/or]
services which are included in the "List
of Goods and Services In Which Foreign Merchants
and Foreign Tourism Enterprises Are Permitted
to Do Business In Vietnam" promulgated
under this Decree, and it may not establish
a Representative Office under an [existing]
Branch in Vietnam.
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The
Chief of a Representative Office and the Director
of a Branch may be a foreigner or Vietnamese.
-
Representative
Offices, Branches and their staff members
are protected by the State of Vietnam in terms
of legal rights and interests and have the
obligation of complying with the laws of Vietnam,
and are not entitled to enjoy the preferential
and immunity treatment conferred upon foreign
diplomatic representative agencies and consulates
and representative agencies of inter-governmental
international organizations in Vietnam.
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>> Article 3:
Responsibilities
of Foreign Merchants and Foreign Tourism Enterprises and
Their Representative Offices and Branches
- A
foreign merchant or foreign tourism enterprise
which has a Representative Office [and/or]
Branch in Vietnam is responsible before the
laws of Vietnam for all activities of its
Representative Office [and/or] Branch in Vietnam.
- Representative
Offices and Branches must comply with the
laws of Vietnam in all of their activities
and directly exercise their rights and perform
their obligations in accordance with the provisions
of Vietnamese law.
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>> Article 4: License
Issuing Authority
- The
Ministry of Trade is responsible for issuing,
amending, supplementing and revoking Licenses
for the establishment of Branches operating
in the field of commerce.
- The
General Department of Tourism is responsible
for issuing, amending, supplementing and revoking
Licenses for the establishment of Representative
Offices and Branches operating in the tourism
field.
- The
Ministry of Trade is responsible for issuing,
amending, supplementing and revoking Licenses
for the establishment of Branches operating
in [both] the fields of commerce and tourism
after having reached a consensus thereon with
the General Department of Tourism.
- The
people’s committee of a province [or] city
directly under the Central Authority (hereinafter
referred to as the "Provincial-Level
People’s Committee") where foreign merchants
request to establish Representative Offices
is responsible for issuing, amending, supplementing
and revoking Licenses for the establishment
of Representative Offices operating in the
field of commerce.
- The
Provincial-Level People’s Committee of the
locality where foreign merchants operating
in [both] the fields of commerce and tourism
request to establish a Representative Office
is responsible for issuing, amending, supplementing
and revoking Licenses for the establishment
of Representative Offices operating in [both]
the fields of commerce and tourism after having
reached a consensus thereon with the General
Department of Tourism.
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Chapter
II
ISSUANCE,
AMENDMENT AND SUPPLEMENT OF LICENSES FOR
THE ESTABLISHMENT OF REPRESENTATIVE OFFICES AND BRANCHES
>>
Article 5: The
Conditions for Issuing Licenses for the Establishment
of Representative Offices and Branches
- A
foreign merchant or foreign tourism enterprise
may be issued a License for the establishment
of a Representative Office in Vietnam if it
has a lawful business registration under foreign
law.
- A
foreign merchant or foreign tourism enterprise
may be issued a License for the establishment
of a Branch in Vietnam if it meets fully the
following conditions:
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- [It]
has a lawful business registration under foreign
law;
- [It]
has operated for not less than five years
as from [the date of] [its] business registration;
[and]
- [It]
does business in the goods [and/or] services
which are included in the "List of Goods
and Services In Which Foreign Merchants and
Foreign Tourism Enterprises Are Permitted
to Do Business In Vietnam" promulgated
under this Decree and reviewed and supplemented
from time to time.
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> Article
6: The
Dossier for Requesting the Issuance of a License to
Establish a Representative Office or Branch
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A
dossier for requesting the issuance of a License
to establish a Representative Office or Branch
includes:
- An
application of the [concerned] foreign
merchant or foreign tourism enterprise
requesting the issuance of a License
to establish a Representative Office
or Branch (prepared in accordance with
the application form prescribed by the
Ministry of Trade after having reached
a consensus with the General Department
of Tourism); [and]
- A
photocopy of the Certificate of Business
Registration of the foreign merchant
or foreign tourism enterprise certified
by a foreign competent authority, and
a Vietnamese translation thereof certified
by a domestic notary public or by a
Vietnamese diplomatic representative
agency or Vietnamese consulate abroad.
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>> Article 7:
Issuance
of a License for the Establishment of a Representative
Office or Branch
- A
foreign merchant or foreign tourism enterprise
shall submit its dossier for requesting the
issuance of a License to establish a Representative
Office or Branch to the License Issuing Authority
provided for in Article 4 of this Decree.
- Within
a period of 15 days as from the date of receipt
of the fully and properly [prepared] dossier,
the License Issuing Authority shall issue
to the [concerned] foreign merchant a License
to establish a Representative Office or Branch,
and shall forward a copy of the License to
the relevant authorities in accordance with
the following provisions:
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a.
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In
cases where the License is issued
by the Ministry of Trade, a copy thereof
shall be sent to the Department of
Trade or Department of Trade and Tourism,
tax authority and statistical authority
of the province where the head office
of the Branch is located; if it is
a License for the establishment of
a Branch operating in [both] the fields
of commerce and tourism, a copy thereof
shall also be sent to the General
Department of Tourism;
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| b. |
In
cases where the License is issued
by the General Department of Tourism,
a copy thereof shall be sent to the
Department of Tourism or Department
of Trade and Tourism, tax authority
and statistical authority of the province
where the head office of the Representative
Office or Branch is located; [and]
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| c. |
In
cases where the License is issued
by a Provincial-Level People’s Committee,
a copy thereof shall be sent to the
Ministry of Trade and the tax authority
and statistical authority of the province
where the head office of the Representative
Office is located; if it is a License
for the establishment of a Representative
Office operating in [both] the fields
of commerce and tourism, a copy thereof
shall also be sent to the General
Department of Tourism.
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- In
the event that the dossier is insufficient
or improper, the License Issuing Authority
shall, within a period of three (3) working
days as from the date of receipt of the dossier,
issue written notice thereof in order for
the [concerned] foreign merchant or foreign
tourism enterprise to supplement and complete
the dossier.
- The
scope of operations of the Representative
Office or Branch shall be specifically stated
in the License.
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>> Article 8:
Notification
of the Operation of a Representative Office or Branch
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Within
a period of no more than 45 days as from the date
of issuance of its License, the [concerned] Representative
Office or Branch must operate officially and inform
the License Issuing Authority in writing of the
location of its head office and the number of
Vietnamese and foreign staff members working in
the Representative Office or Branch.
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>> Article 9:
Changes
in the Contents of a License
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When
a foreign merchant or foreign tourism enterprise
needs to change one, several or all of the following
contents of its Representative Office’s or Branch’s
License, it must submit a letter to request the
License Issuing Authority to amend [and/or] supplement
the License:
- A
change in the name [or] nationality of the
foreign merchant or foreign tourism enterprise
or the name of the Representative Office or
Branch;
- An
increase in the number of foreign staff members
working for the Representative Office or Branch;
- A
change in the scope of operations of the Representative
Office or Branch; [and]
- A
change in the location of the Representative
Office’s or Branch’s head office.
Within
a period of no more than 10 days as from the date
of receipt of the request of a foreign merchant
or foreign tourism enterprise, the License Issuing
Authority is responsible for issuing to the foreign
merchant or foreign tourism enterprise a new Amended
or Supplemented License and sending a copy of
this License to the authorities which were given
a copy of the License for the establishment of
the Representative Office or Branch as provided
for in Article 7(2) of this Decree.
In
the event that a change involves the relocation
of the head office of a Representative Office
operating in the field of commerce or in [both]
the fields of commerce and tourism from a province
or city directly under the Central Authority to
another province or city directly under the Central
Authority, the [concerned] foreign merchant must
complete the formalities for requesting the issuance
of a License for the establishment of a new Representative
Office in accordance with Articles 6 and 7 of
this Decree.
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>>Article 10:
Fees
for Issuing, Amending and Supplementing Licenses
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Foreign
merchants and foreign tourism enterprises
must pay fees for the issuance, amendment
and supplement of a License.
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The
Ministry of Finance shall preside over and
co-ordinate with the Ministry of Trade and
General Department of Tourism in stipulating
specific amounts of fees and the management
and use of the fees prescribed in clause 1
of this Article.
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>> Article 11:
Termination
of Operation of a Representative Office or Branch
- A
Representative Office or Branch shall terminate
its operations in the following circumstances:
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a.
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At
the request of the [concerned] foreign
merchant or foreign tourism enterprise;
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| b. |
When
the foreign merchant or foreign tourism
enterprise terminates its operations;
[or]
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| c. |
When
there is a decision from a competent
State authority revoking or canceling
the License in accordance with the
provisions of Vietnamese law.
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- In
the event of termination of operation under
the provisions of clauses 1(a) and 1(b) of
this Article, the [concerned] foreign merchant
or foreign tourism enterprise must submit,
within a period of no more than 30 days prior
to its termination of the operations of the
Representative Office or Branch, written notice
to the License Issuing Authority to notify
it of the termination of operation of the
Representative Office or Branch, and must
return the License to the License Issuing
Authority.
Within
a period of seven (7) days, the License Issuing
Authority is responsible for notifying the
authorities which were given a copy of the
License for the establishment of the Representative
Office or Branch as provided for in Article
7(2) of this Decree of the termination of
the operations of the Representative Office
or Branch.
- In
the event of termination of operation under
the provisions of clause 1 (c) of this Article,
the License Issuing Authority, no later than
30 days prior to the date on which the Representative
Office or Branch is forced to terminate its
operations, is responsible for sending to
the [concerned] foreign merchant or foreign
tourism enterprise the decision on the revocation
or cancellation of the License for the establishment
of the Representative Office or Branch, and
forwarding a copy of the decision to the authorities
which were given a copy of the License for
the establishment of the Representative Office
or Branch as provided for in Article 7(2)
of this Decree.
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>>
Article 12: Obligations
of the Foreign Merchant and Foreign Tourism Enterprise
and Their Representative Office and Branch Upon Termination
of Operation of Their Representative Office or Branch
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Prior
to termination of operation of its Representative
Office or Branch in Vietnam, the [concerned] foreign
merchant or foreign tourism enterprise and its
Representative Office or Branch have the obligation
of fulfilling the payment of debts and other obligations
to the State and relevant organizations and individuals
in Vietnam.
A
Provincial-Level People’s Committee is responsible
for monitoring, overseeing and causing the implementation
by Representative Offices and Branches in its
locality of this provision.
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Chapter
III
SCOPE OF OPERATIONS, RIGHTS AND OBLIGATIONS OF REPRESENTATIVE
OFFICES AND BRANCHES
>> Article 13:
The
Scope of Operations of Representative Offices and Branches
- The
scope of operations of a Representative Office:
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a.
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To
proceed with the formation of economic,
commercial and tourism co-operation
projects in Vietnam;
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| b. |
To
explore and promote opportunities
for the purchase and sale of goods
and the provision of commercial and
tourist services in Vietnam; [and]
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| c. |
To
monitor and cause the implementation
of contracts executed by the foreign
merchant or foreign tourism enterprise
which it represents.
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- The
scope of operations of a Branch:
The
scope of operations of a Branch shall be stipulated
specifically in the License for the establishment
of the Branch, which shall accord with the
scope of operations of the [concerned] foreign
merchant or foreign tourism enterprise and
be within the scope of the "List of Goods
and Services In Which Foreign Merchants and
Foreign Tourism Enterprises Are Permitted
to Do Business In Vietnam" promulgated
under this Decree.
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>> Article 14:
Rights
and Obligations of a Representative Office and Its Staff
Members
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A
Representative Office and its staff members shall
exercise the rights and perform the obligations
provided for in the Commercial Law and Ordinance
on Tourism and in accordance with the following
specific provisions:
- The
Representative Office may operate in
accordance with the specific contents
stated in its Establishment License;
- The
Chief of the Representative Office may
sign contracts for the sale and purchase
of goods and contracts for the provision
of services (except for contracts for
travel tours and tourist transportation)
with Vietnamese merchants and Vietnamese
tourism enterprises when he/she holds
a duly [prepared] power of attorney
issued by the foreign merchant or foreign
tourism enterprise for each [specific]
contract;
- The
staff members of the Representative
Office must pay taxes in accordance
with the provisions of Vietnamese law;
[and]
- Once
a year, the Representative Office shall
make a periodical report on the activities
of the Representative Office during
the previous year to the License Issuing
Authority prior to the last working
day of January of the subsequent year.
In
necessary circumstances, the Representative
Office has the obligation of making
a report, supplying documents or providing
explanations on matters relating to
its activities upon written request
of a competent authority under the provisions
of Vietnamese law.
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>> Article 15:
Rights
and Obligations of a Branch and Its Staff Members
A
Branch and its staff members shall exercise the
rights and perform the obligations provided for
in the Commercial Law and Ordinance on Tourism
and in accordance with the following specific
provisions:
- The
Branch may operate in accordance with the
contents stated in its License;
- The
staff members of the Branch must pay taxes
in accordance with the provisions of Vietnamese
law;
- The
Branch must perform its accounting in accordance
with the provisions of Vietnamese law and
may only adopt another commonly-used accounting
system upon approval of the Ministry of Finance;
The
financial year of the Branch shall commence
on January 1 and shall end by the close of
December 31 each year; [and]
- Once
a year, prior to the last working day of March
of the subsequent year, the Branch must submit
to the License Issuing Authority a report
on the activities of the Branch during the
previous year and financial statements verified
by a Vietnamese auditing organization or by
an independent organization authorized to
operate in Vietnam.
In
necessary circumstances, the Branch has the
obligation of making a report, supplying documents
or providing explanations on matters relating
to its activities upon written request of
a competent authority under the provisions
of Vietnamese law.
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Chapter
IV
RESPONSIBILITIES OF THE AUTHORITY IN CHARGE OF STATE
MANAGEMENT OVER THE ACITIVITIES OF REPRESENTATIVE
OFFICES AND BRANCHES
>> Article 16:
Responsibilities
of the Ministry of Trade
- To
preside over and co-ordinate with the General
Department of Tourism in drafting statutory
instruments on Representatives Offices and
Branches for promulgation by itself within
its authority or for submission to the competent
authority for promulgation;
- To
issue, amend, supplement and revoke Licenses
for the establishment of Branches in accordance
with the provisions of Article 4(1) and 4(3)
of this Decree;
- To
check and inspect the work of State management
over the activities of Representative Offices
and Branches operating in the field of commerce
nation-wide;
- To
preside over and co-ordinate with [other]
relevant ministries, branches and local authorities
in checking and inspecting Representative
Offices and Branches operating in the field
of commerce when it deems necessary or upon
a request of a ministry, branch or local authority;
[and]
- To
handle violations in accordance with its authority.
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>> Article 17: Responsibilities
of the General Department of Tourism
- To
co-ordinate with the Ministry of Trade in
drafting statutory instruments on Representatives
Offices and Branches for promulgation by itself
within its authority or for submission to
the competent authority for promulgation;
- To
issue, amend, supplement and revoke Licenses
in accordance with the provisions of Article
4(2) of this Decree;
- To
check and inspect the work of State management
over the activities of Representative Offices
and Branches operating in the tourism field
nation-wide;
- To
preside over and co-ordinate with relevant
ministries, branches and local authorities
in checking and inspecting Representative
Offices and Branches operating in the tourism
field when it deems necessary or upon a request
of a ministry, branch or local authority;
- To
co-ordinate with the Ministry of Trade in
checking and inspecting Branches operating
in [both] the fields of commerce and tourism;
[and]
- To
handle violations in accordance with its authority.
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>>
Article 18: Responsibilities
of Ministries, Ministerial-Level Authorities and Organs
Directly Under the Government
- To
co-ordinate with the Ministry of Trade, General
Department of Tourism and Provincial-Level
People’s Committees of localities where the
head offices of Representative Offices or
Branches are located in resolving matters
relating to the Representative Offices’ or
Branches’ activities that fall under the areas
subject to their control; [and]
- To
join with the Ministry of Trade, General Department
of Tourism and Provincial-Level People’s Committees
in checking and inspecting Representative
Offices’ or Branches’ activities that fall
under the areas subject to their control.
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>> Article 19: Responsibilities
of a Provincial-Level People’s Committee
- To
perform, within its authority, State management
over the activities of Representative Offices
and Branches in its locality;
- To
issue, amend, supplement and revoke Licenses
for the establishment of Representative Offices
operating in the field of commerce and in
[both] the fields of commerce and tourism
in its locality in accordance with the provisions
of Article 4(4) and 4(5) of this Decree;
- To
organize checks and inspections within its
authority on the activities of Representative
Offices and Branches in its locality;
- To
co-ordinate with the Ministry of Trade and
General Department of Tourism in checking
and inspecting the activities of Representative
Offices and Branches in its locality; [and]
- To
handle violations in accordance with its authority.
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Chapter
V
HANDLING OF VIOLATIONS
>> Article 20: Handling
of Violations With Respect to Representative Offices,
Branches [and] Their Staff Members
- A
Representative Office or Branch that violates
[any of] the provisions of this Decree shall
be penalized for administrative violations
in accordance with the provisions of Vietnamese
law.
- A
staff member of a Representative Office or
Branch who violates [any of] the provisions
of this Decree shall be penalized for administrative
violation or put under investigation for criminal
liability in accordance with the provisions
of Vietnamese law, depending on the nature
and extent of the violation.
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>> Article 21: Handling
of Violations With Respect to Officials and Public Servants
An
official or public servant who violates [any of] the
provisions of this Decree when performing an official
duty shall be disciplined or put under investigation
for criminal liability in accordance with the provisions
of Vietnamese law, depending on the nature and extent
of the violation.
Chapter
VI
IMPLEMENTING
PROVISIONS >>
Article 22: Implementing
Provisions
- This
Decree enters into force as from October 1,
2000, and supersedes Decree No. 82/CP dated
August 2, 1994, Promulgating the Regulations
on the Establishment and Activities of Representative
Offices in Vietnam of Foreign Economic Organizations.
- Representative
Offices which have been established before
the date on which this Decree enters into
force shall continue to operate in accordance
with the provisions of this Decree.
Within
a period of no more than 30 days as from the
date on which this Decree enters into force,
Representative Offices which have been established
before the date on which this Decree enters
into force must inform the License Issuing
Authority as provided for in Article 4 of
this Decree in writing of the name of the
merchant, name of the Representative Office,
location of the head office and contents of
the main activities of the Representative
Office.
- The
Prime Minister of the Government shall consider
and decide on whether foreign merchants’ Branches
established before the date on which this
Decree enters into force and doing business
in goods [and/or] tourist services that are
not included in "the List of Goods and
Services in Which Foreign Merchants Are Permitted
to Do Business in Vietnam" promulgated
under this Decree may continue their activities.
- The
Ministry of Trade shall preside over and co-ordinate
with the General Department of Tourism in
providing guidelines for implementing this
Decree.
- Ministers
of ministries, heads of ministerial-level
authorities, heads of organs directly under
the Government and chairmen of people's committees
of provinces and cities directly under the
Central Authority are responsible for implementing
this Decree
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ON
BEHALF OF THE GOVERNMENT
PRIME
MINISTER
[Signed and sealed by]
Mr.
PHAN VAN KHAI
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- Recipients:
- Standing Committee
of the Political Bureau;
-
Prime Minister and Deputy Prime Ministers of the
Government;
-
Ministries, Ministerial-Level Authorities and
Organs Directly Under the Government;
-
People's Councils and Committees of Provinces
and Cities Directly under the Central Authority;
-
Central Office and Commissions of the Party;
-
Office of the National Assembly;
-
Office of the President of State;
-
People's Supreme Institute of Public Prosecutions;
-
People's Supreme Court;
-
Central Bodies of Associations;
-
Gazette;
-
Office of the Government: the Minister and Chairman,
Instrumentalities, Departments [and] Subordinate
Units;
-
Archived at: International Relations (3 sets)
and documentation office.
—————————————————————————————————————————————————————
LIST
OF GOODS AND SERVICES
In
Which Branches of Foreign Merchants Are Permitted to
Do Business in Vietnam
(Promulgated
in conjunction with Decree No. 45/2000/ND-CP
dated
September 6, 2000, of the Government)
I. Goods
Purchased in Vietnam for Export:
- Fine-arts
and handicraft items;
- Processed
agricultural products and agricultural products
(except for rice and coffee);
- Vegetables,
fruits and processed vegetables and fruits;
- Industrial
consumer goods; [and]
- Meats
of domestic animals and poultry and food preparations.
II. Goods
Imported for Sale on the Vietnam Market
A
Branch of a foreign merchant which has foreign currency
obtained from [its] exportation of the goods prescribed
in Section I of this List may import the following goods
for sale on the Vietnam market, provided that [it] has
a permit from the Ministry of Trade and [its] import
volume does not exceed [its] export volume
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