Circular No. 10-TM/PC guiding the implementation of the Regulation on Establishing Representative Offices of Vietnamese Enterprises Abroad

CIRCULAR

OF THE MINISTRY OF TRADE

Guidelines for Implementing the Regulations on Establishing Representative Offices of Vietnamese Enterprises Abroad

Pursuant to Article 20 of the Regulations on Establishing Representative Offices of Vietnamese Enterprises Abroad issued together with Decree No. 40-CT dated May 19, 1994 of the Government, and after exchanging opinions with relevant agencies and being approved by the Government (Document No. 3921-QHQT dated July 16, 1994), the Ministry of Trade provides specific guidance on certain points in the Regulations for uniform implementation as follows:

1. Regarding the subjects eligible for permission to establish Representative Offices abroad:

Vietnamese enterprises of all economic sectors, regardless of business fields and management levels, if they meet the conditions stipulated in the Regulations, may apply for permission to establish Representative Offices abroad. Specifically, such Vietnamese enterprises include:

1.1. State-owned enterprises;

1.2. Enterprises established under the Law on Companies (Joint Stock Companies and Limited Liability Companies);

1.3. Enterprises established under the Law on Private Enterprises;

1.4. Enterprises established under cooperative models;

1.5. Enterprises established under the Law on Foreign Investment in Vietnam.

2. Regarding the conditions for enterprises to be granted permission to establish Representative Offices abroad:

The enterprises mentioned in Point 1 of this Circular must meet the conditions prescribed in Article 5 of the Regulations to be granted permission to establish Representative Offices abroad, specifically:

2.1. The enterprise has been issued a registration certificate by the competent state agency and has registered its operations in accordance with current Vietnamese laws;

2.2. The enterprise has a need to establish a Representative Office to carry out marketing activities, implement trade contracts, service contracts, and/or economic, scientific, and technological cooperation agreements with trading partners in the host country;

2.3. The enterprise has legitimate funds to lease premises, purchase equipment, and ensure the normal operation of the Representative Office in the host country.

3. Regarding the establishment of joint Representative Offices for multiple enterprises and hiring foreign personnel to work at Representative Offices:

3.1. In cases where two or more enterprises meet the prescribed conditions but consider that establishing separate Representative Offices would be less effective due to high costs, these enterprises may agree (in writing) to establish a joint Representative Office abroad, and one of the enterprises will handle the procedures to request the Ministry of Trade to grant permission according to regulations.

3.2. It is strictly prohibited for domestic enterprises to require agencies and/or hire officials or staff of the Vietnamese Embassy or Consulate abroad to perform the duties and powers of the enterprise's Representative Office as specified in Article 11 of the Regulations in any form.

3.3. The Representative Office of a Vietnamese enterprise abroad consists of a person in charge (Head of the Representative Office) and other employees working at the Representative Office.

3.3.1. The person in charge (Head of the Representative Office) must be a Vietnamese citizen and belong to the organizational structure of the enterprise within the country.

3.3.2. Employees working at the Representative Office can be hired from either foreigners or Vietnamese residing abroad, subject to conditions agreed upon by both parties and in compliance with Vietnamese and local laws.

3.3.3. In exceptional cases where the workload of the Representative Office has not yet developed sufficiently, the enterprise may temporarily not appoint a person in charge (Head of the Representative Office) but instead hire employees as stipulated in Point 3.3.2 of this Circular to perform one or several duties and powers of the enterprise's Representative Office as specified in Article 11 of the Regulations. In such cases, the General Director of the enterprise shall assume the role of Head of the Representative Office.

4. Regarding the procedure for applying for permission to establish a Representative Office abroad:

4.1. Vietnamese enterprises wishing to establish a Representative Office abroad must submit the application package as prescribed in Article 8 of the Regulations to the Ministry of Trade. The application package includes:

4.1.1. A letter from the General Director of the enterprise requesting permission to establish a Representative Office abroad.

4.1.2. A certified copy of the enterprise's registration certificate and business registration certificate in accordance with current legal provisions.

4.1.3. Documents proving the necessity of establishing a Representative Office abroad, such as agreements or requests for marketing activities (if applicable); trade, service, and/or economic, scientific, and technological cooperation contracts that the enterprise intends to implement with trading partners in the host country.

4.1.4. An explanation from the enterprise regarding the legitimate funds available to ensure the normal operation of the Representative Office abroad.

For state-owned enterprises, in addition to the aforementioned documents, the application package must also include a document from the enterprise's founding agency (Ministry or People's Committee of the province/city) approving the establishment of a Representative Office abroad.

4.2. Upon receiving a complete and valid application package from the enterprise, the Ministry of Trade will decide within twenty (20) days whether to grant permission to establish a Representative Office abroad. If permission is denied, the Ministry of Trade will notify the enterprise in writing, providing the reasons.

4.3. After obtaining the Ministry of Trade's permit to establish a Representative Office abroad, the enterprise is authorized to conduct transactions with the competent authorities in the host country to process the establishment of the Representative Office according to the host country's laws, and within six (6) months from the date of issuance of the permit by the Ministry of Trade, the enterprise must complete the establishment of the Representative Office and report back to the Ministry of Trade.

4.4. Within six months from the date the Ministry of Commerce issues the permit, if the enterprise has not established a Representative Office, the enterprise must submit a report to the Ministry of Commerce detailing the reasons for not establishing the Representative Office and requesting the Ministry of Commerce to extend the period (if the enterprise still intends to establish the Representative Office), or requesting the Ministry of Commerce to revoke the permit according to regulations.

5. Regarding the procedure for terminating the Representative Office of an enterprise abroad:

5.1. In cases where the Representative Office is terminated according to Article 17 of the Regulation, the enterprise must submit a report to the Ministry of Commerce detailing the operational status of the Representative Office and proposing measures for resolution.

5.2. Based on the enterprise's report and/or the Ministry of Commerce's review within its authority, the Ministry of Commerce decides on the termination of the Representative Office of the enterprise abroad.

5.3. The Representative Office of the enterprise will be terminated fifteen (15) days after the date the Ministry of Commerce signs the decision.

6. Implementation provisions:

6.1. Vietnamese enterprises that have established a Representative Office abroad before the issuance of this Regulation and Circular guiding it, if they wish to continue establishing and operating the Representative Office abroad, must prepare new files in accordance with the guidance at Point 4.1 of this Circular to obtain a permit conversion as stipulated in Article 19 of the Regulation.

6.2. This Circular takes effect from the date of issuance and replaces previous regulations of the Ministry of Commerce regarding the Representative Office of Vietnamese enterprises abroad./.