Decree No. 100/2011/ND-CP on the establishment and operation of representative offices of foreign trade promotion organizations in Vietnam

DECREE

Regulations on the establishment and operation of representative offices

of foreign trade promotion organizations in Vietnam

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THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Pursuant to the Law on Trade dated June 14, 2005;

Considering the proposal of the Minister of Industry and Trade,

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree stipulates the establishment and operation of representative offices of foreign trade promotion organizations in Vietnam (hereinafter referred to as representative offices).

Article 2. Applicability

1. This Decree applies to representative offices of foreign organizations including trade promotion organizations and other organizations conducting activities related to trade promotion in Vietnam (hereinafter collectively referred to as foreign trade promotion organizations).

Foreign trade promotion organizations under this Decree include organizations belonging to the government or non-governmental organizations, associations, societies... established according to the regulations of the country where the organization has its headquarters, conducting activities related to trade promotion in Vietnam with the aim of promoting trade promotion activities from abroad into Vietnam and vice versa; supporting foreign enterprises to enter and operate in the Vietnamese market; researching and providing economic, trade, and market information for foreign organizations and enterprises; promoting cross-border trade activities with Vietnam; and activities aimed at connecting trading between foreign enterprises and Vietnamese enterprises.

2. This Decree does not apply to representative offices in Vietnam of foreign traders, non-governmental organizations of foreign countries, cooperation and research organizations, cultural and educational institutions, and other foreign organizations regulated by other legal documents.

Article 3. State management over the activities of representative offices

1. The Ministry of Industry and Trade assists the Government in uniformly managing state activities concerning representative offices specifically as follows:

a) Taking the lead and coordinating with ministries and ministerial-level agencies in drafting and submitting to competent authorities for promulgation or promulgating within their authority legal documents regarding representative offices;

b) Guiding and organizing the issuance, reissuance, amendment, supplementation, extension, and revocation of licenses for the operation of representative offices;

c) Inspecting and supervising the management work of provincial industry and trade departments regarding the activities of representative offices nationwide;

d) Taking the lead and coordinating with ministries, ministerial-level agencies, and relevant localities in inspecting and supervising representative offices when necessary or upon request from ministries, sectors, and localities;

e) Taking the lead and coordinating with ministries, ministerial-level agencies, and localities in building a database on representative offices nationwide;

f) Handling violations of the law by representative offices within their authority.

2. Ministries and ministerial-level agencies within the scope of their functions, tasks, and powers shall be responsible for implementing or coordinating with the Ministry of Industry and Trade to implement state management over the establishment and operation of representative offices in the assigned fields.

3. Provincial People's Committees and municipal people's committees directly under the central government within the scope of their tasks and powers shall direct provincial industry and trade departments to carry out management, monitoring, supervision, inspection, and handling of violations against the activities of foreign trade promotion organizations in Vietnam within their jurisdiction in accordance with the law.

Chapter II

ESTABLISHMENT AND OPERATION OF REPRESENTATIVE OFFICES

Article 4. Establishment of Representative Office

1. Foreign trade promotion organizations conducting activities related to trade promotion in Vietnam must establish a Representative Office in accordance with the provisions of this Decree.

2. A foreign trade promotion organization may establish no more than one (01) Representative Office on the territory of one province or centrally governed city.

3. The Representative Office is a dependent unit of the foreign trade promotion organization. A Representative Office shall not establish another Representative Office under it.

4. The establishment of a Representative Office must be registered with the competent authority issuing the license in accordance with the provisions of this Decree (hereinafter referred to as the licensing authority).

Article 5. Conditions for Establishing a Representative Office

A foreign trade promotion organization shall be granted a license to establish a Representative Office in Vietnam when meeting the following conditions:

1. It is an organization established under the laws of a foreign country.

2. It has articles of association and objectives of the Representative Office's operations that comply with Vietnamese law.

Article 6. Organization of the Representative Office

1. The organizational structure and head of the Representative Office are determined by the foreign trade promotion organization and must be registered with the licensing authority.

2. Recruitment and appointment of foreigners to work at the Representative Office must comply with Vietnamese law and Vietnam’s commitments in international treaties to which Vietnam is a party.

Article 7. Activities of the Representative Office

1. The Representative Office may carry out activities related to trade promotion including:

a) Performing liaison office functions;

b) Carrying out activities aimed at promoting trade promotion activities from abroad into Vietnam and vice versa; supporting foreign enterprises to access and operate in the Vietnamese market; researching and providing economic, trade, and market information for foreign organizations and enterprises; promoting cross-border trade activities with Vietnam; activities aimed at connecting trading between foreign enterprises and Vietnamese enterprises;

c) Cooperating with agencies and organizations responsible for implementing Vietnam's trade promotion activities to carry out activities related to trade promotion;

d) Other trade promotion activities as prescribed by law.

2. The Representative Office shall not engage in activities aimed at directly generating profit in Vietnam.

Article 8. Notification of Representative Office Activities

1. Within forty-five (45) days from the date of issuance, reissuance, amendment, supplementation, or extension of the License for establishment, the Representative Office must publish in three consecutive issues of a newspaper or online publication permitted to circulate in Vietnam the following contents:

a) Name and address of the Representative Office's headquarters;

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

c) Head of the Representative Office;

d) Number, date of issuance, validity period of the License for establishing the Representative Office, and the issuing authority;

e) Contents of the Representative Office's activities.

2. Within the time limit specified in Clause 1 of this Article, the Representative Office must commence its operations officially and notify the licensing authority, the People's Committee of the province, and the Department of Industry and Trade where the Representative Office's headquarters is located about the commencement of operations at the registered headquarters.

Article 9. Opening an Account

1. The Representative Office may open a foreign currency dedicated payment account and a Vietnamese dong dedicated payment account with a foreign exchange base at a bank permitted to operate in Vietnam, and such accounts shall only be used for the activities of the Representative Office.

2. The opening, use, and closure of the Representative Office's accounts shall be carried out in accordance with the regulations of the State Bank of Vietnam.

Article 10. Reporting on Activities

1. Annually, before the last working day of January of the following year, the Representative Office must submit a written report on its activities for the year to the licensing authority.

2. The Representative Office must comply with financial reporting systems and statistical reporting systems as prescribed by Vietnamese law.

3. In cases where necessary according to Vietnamese law, the Representative Office has the obligation to report, provide documents, or explain issues related to its activities upon request from the competent authority as stipulated in Article 3 of this Decree.

Article 11. Rights and Obligations of the Representative Office and its Head

The Representative Office and its head shall perform their rights and obligations as follows:

1. To operate within the scope and content specified in the Representative Office Establishment License.

2. To lease premises and hire staff for the Representative Office in accordance with current Vietnamese law.

3. To register and use the Representative Office’s seal in accordance with current Vietnamese law.

4. The Representative Office shall not undertake the function of representing other trade promotion organizations and shall not sublet its premises.

5. The head of the Representative Office shall not concurrently hold the position of head of the Representative Office of another foreign trader or organization in Vietnam.

6. Foreign nationals working at the Representative Office must have a work permit in accordance with Vietnamese law.

Article 12. Termination of the Representative Office's Operations

1. The Representative Office shall cease operations in the following circumstances:

a) At the request of the foreign trade promotion organization and approved by the licensing authority;

b) When the foreign trade promotion organization ceases operations under the laws of the country where it was established;

c) Upon expiration of the operation period specified in the Representative Office Establishment License without the foreign trade promotion organization requesting an extension;

d) Upon expiration of the operation period specified in the Representative Office Establishment License without approval from the licensing authority for an extension;

đ) When the Representative Office Establishment License is revoked in accordance with Clause 2, Article 23 of this Decree.

2. At least 30 days prior to the cessation of operations of the Representative Office as provided in points a, b, and c of Clause 1 of this Article, the foreign trade promotion organization must notify the licensing authority, creditors, employees of the Representative Office, and other interested parties about the cessation of operations. This notification must clearly state the anticipated date of cessation of operations, be publicly posted at the Representative Office's premises, and published in three consecutive issues of a permitted print or online newspaper in Vietnam.

3. Within 15 days from the decision not to extend the Representative Office Establishment License or the decision to revoke the License as provided in points d and đ of Clause 1 of this Article, the licensing authority must publish in three consecutive issues of a permitted print or online newspaper in Vietnam the cessation of operations of the Representative Office and specify the cessation date.

4. Within 15 days from the completion of the obligations stipulated in Clause 2 or Clause 3 of Article 13 of this Decree by the foreign trade promotion organization and the Representative Office, the licensing authority must remove the Representative Office from the Register.

5. Within 15 days from the removal of the Representative Office from the Register, the licensing authority is responsible for notifying the cessation of operations of the Representative Office to the People's Committee of the province, Department of Industry and Trade, tax authority, statistical authority, and provincial public security authority where the Representative Office is located.

Article 13. Obligations of foreign trade promotion organizations towards representative offices

1. Foreign trade promotion organizations shall be responsible under Vietnamese law for all activities of their representative offices in Vietnam. In cases where activities are carried out beyond the scope of authorization granted to the representative office, the head of the representative office shall bear responsibility for such activities according to Vietnamese law.

2. At least fifteen days before the representative office ceases operations as provided for in points a, b, c, Clause 1, Article 12 of this Decree, the foreign trade promotion organization and the representative office shall have the obligation to settle all debts and other obligations with the state, organizations, and individuals concerned in accordance with the provisions of the law.

3. Within sixty days from the date the representative office ceases operations as provided for in points d, e, Clause 1, Article 12 of this Decree, the foreign trade promotion organization shall have the obligation to settle all debts and other obligations with the state, organizations, and individuals concerned in accordance with the provisions of the law.

Chapter III

ISSUANCE, RENEWAL, AMENDMENT, SUPPLEMENTATION, EXTENSION

LICENSE FOR ESTABLISHING REPRESENTATIVE OFFICES

Article 14. Procedures and Time Limits for Issuing the License for Establishing Representative Offices

1. A foreign trade promotion organization shall submit one set of application documents for issuing the license for establishing a representative office to the Ministry of Industry and Trade (Trade Promotion Agency) to request permission to establish a representative office of the organization.

2. Within twenty days from the date of receipt of complete and valid documents, the licensing authority shall examine and issue the license for establishing a representative office to the foreign trade promotion organization and send a copy of the license to the People's Committee of the province or centrally governed city (hereinafter referred to collectively as the Provincial People's Committee), Department of Industry and Trade, tax authority, statistical agency, provincial public security agency where the representative office is located. In case of refusal to issue the license for establishing a representative office, the licensing authority must provide a written response stating the reasons.

3. If the documents are not complete or valid, within three working days from the date of receipt of the documents, the licensing authority must notify in writing for the foreign trade promotion organization to supplement and complete the documents.

4. The time limits specified in Clauses 2 and 3 of this Article do not include the time taken by the foreign trade promotion organization to amend and supplement the application documents for issuing the license for establishing a representative office.

5. The license for establishing a representative office has a validity period of five years but shall not exceed the remaining validity period of the establishment license or equivalent document of the foreign trade promotion organization if the law of the country where the organization was established specifies a term for the establishment license.

Article 15. Documents Required for Issuing the License for Establishing a Representative Office

1. The documents for requesting issuance of the Business Registration Certificate for a Representative Office include:

a) An application for issuing the license for establishing a representative office in the prescribed form signed by an authorized representative of the foreign trade promotion organization;

b) A document from the competent authority of the foreign country allowing the establishment of a representative office in Vietnam;

c) A certified copy of the establishment license or equivalent document of the foreign trade promotion organization issued by the competent authority where the foreign trade promotion organization was established;

d) A certified copy of the charter or operational regulations of the foreign trade promotion organization;

đ) Proposed charter or operational regulations of the representative office in Vietnam;

e) Report on the operation of the foreign trade promotion organization in the most recent year and proposed activities in Vietnam;

g) Curriculum vitae of the person proposed to be the head of the representative office and a document appointing that person as the head of the representative office in Vietnam.

2. The documents mentioned in points b, c, d, đ, e, g, Clause 1 of this Article must be translated into Vietnamese and legalized consularly in accordance with the provisions of the law.

Article 16. Cases Where a Representative Office Establishment Permit Will Not Be Issued

The agency issuing the Representative Office Establishment Permit shall not issue such a permit to foreign trade promotion organizations in the following cases:

1. The foreign trade promotion organization does not meet all the conditions stipulated in Article 5 of this Decree.

2. The trade promotion organization engages in trading goods or services.

3. A foreign trade promotion organization requests issuance of a Representative Office Establishment Permit within two years from the date its Representative Office Establishment Permit was revoked in Vietnam according to Clause 2, Article 23 of this Decree.

4. There is evidence showing that establishing a Representative Office would harm national defense, security, public order, social safety, historical traditions, culture, ethics, customs, and the health of the people, destroy resources, or cause environmental pollution;

5. The application is not valid and does not include all required documents as requested by the issuing authority;

6. Other cases as prescribed by law.

Article 17. Amending and Supplementing the Representative Office Establishment Permit

1. In the following cases, foreign trade promotion organizations must submit one set of documents requesting amendment and supplementation of the Representative Office Establishment Permit to the competent authority for amendment and supplementation procedures within ten working days from the date of change:

a) Changing the head of the Representative Office;

b) Changing the location of the headquarters of the foreign trade promotion organization;

c) Changing the location of the Representative Office within the scope of one province or centrally governed city;

d) Changing the name or activities of the Representative Office already permitted.

2. Documents for requesting amendment and supplementation of the Representative Office Establishment Permit include:

a) An application for amendment and supplementation of the Representative Office Establishment Permit signed by the authorized representative of the foreign trade promotion organization;

b) A copy (without notarization) of the Representative Office Establishment Permit already issued.

3. Within ten working days from the date of receiving the valid documents from the foreign trade promotion organization, the issuing authority is responsible for amending and supplementing the Permit and sending a copy of the amended and supplemented Permit to the agencies specified in Clause 2, Article 14 of this Decree.

Article 18. Reissuing the Representative Office Establishment Permit

1. In the following cases, foreign trade promotion organizations must submit one set of documents requesting reissue of the Representative Office Establishment Permit to the issuing authority for reissue procedures within fifteen days from the date of change:

a) Changing the location of the Representative Office from one province or centrally governed city to another;

b) Changing the name or place of establishment registration of the foreign trade promotion organization from one country to another;

c) Changing the activities of the foreign trade promotion organization.

2. In the case where the Representative Office Establishment Permit is lost, torn, or destroyed, the foreign trade promotion organization must immediately proceed with the request for reissue of the Representative Office Establishment Permit with the issuing authority upon occurrence of the event.

Article 19. Documents for Reissuing the License to Establish a Representative Office

1. The documents for requesting reissuing the License to Establish a Representative Office in cases provided for in point a, Clause 1, Article 18 of this Decree include:

a) An application for reissuing the License to Establish a Representative Office signed by the authorized representative of the foreign trade promotion organization according to a prescribed form;

b) A copy (without notarization) of the Representative Office Establishment Permit already issued.

2. The documents for requesting reissuing the License to Establish a Representative Office in cases provided for in points b and c, Clause 1, Article 18 of this Decree include:

a) An application for reissuing the License to Establish a Representative Office signed by the authorized representative of the foreign trade promotion organization according to a prescribed form;

b) A copy of the registration certificate for establishment or equivalent document of the foreign trade promotion organization certified by the competent authority where the foreign trade promotion organization was established or registered to operate. These documents must be translated into Vietnamese and legalized according to Vietnamese law;

c) A copy (without notarization) of the previously issued License to Establish a Representative Office.

3. The documents for requesting reissuing the License to Establish a Representative Office in cases provided for in Clause 2, Article 18 of this Decree include:

a) An application for reissuing the License to Establish a Representative Office signed by the authorized representative of the foreign trade promotion organization according to a prescribed form;

b) A copy (without notarization) of the Representative Office Establishment Permit already issued.

Article 20. Extension of the License to Establish a Representative Office

1. A foreign trade promotion organization may have its License to Establish a Representative Office extended if it meets the following conditions:

a) There is a need to continue operating in Vietnam through a Representative Office;

b) The foreign trade promotion organization continues to operate in accordance with the laws of the country where it was established;

c) There has been no violation of Vietnamese law related to the activities of the Representative Office.

2. The documents for requesting extension of the License to Establish a Representative Office include:

a) An application for extending the License to Establish a Representative Office signed by the authorized representative of the foreign trade promotion organization according to a prescribed form;

b) Financial statements audited or other equivalent documents proving the existence and actual operation of the foreign trade promotion organization in the most recent fiscal year. These documents must be translated into Vietnamese and certified by the diplomatic mission or consular office of Vietnam abroad and legalized according to Vietnamese law;

c) A report on the activities of the Representative Office up to the date of the request for extension of the License to Establish a Representative Office;

d) The original License to Establish a Representative Office that has been issued.

3. At least 30 days before the License to Establish a Representative Office expires, the foreign trade promotion organization must complete the extension procedures.

4. The time limit for the licensing authority to process the extension of the License to Establish a Representative Office shall be the same as the time limit for issuing a new License to Establish a Representative Office as stipulated in Article 14 of this Decree.

5. Immediately upon expiration of the time limit specified in Clause 4 of this Article, if the licensing authority does not extend the License to Establish a Representative Office, it must notify the foreign trade promotion organization in writing of the reasons for not extending the License.

6. The licensing authority responsible for issuing the License to Establish a Representative Office shall inform the authorities specified in Clause 2 of Article 14 of this Decree about the extension or non-extension of the License.

7. The extension period shall be the same as the term of the License of the Representative Office as stipulated in Clause 5 of Article 14 of this Decree.

Article 21. Fees for issuance, reissuance, amendment, supplementation, and extension of Representative Office Establishment Permits

1. Foreign trade promotion organizations must pay fees for the issuance, reissuance, amendment, supplementation, and extension of Representative Office Establishment Permits.

2. The Ministry of Finance shall take the lead and coordinate with the Ministry of Industry and Trade to specify the levels and management of fees for the issuance, reissuance, amendment, supplementation, and extension of Representative Office Establishment Permits.

Chapter IV

INSPECTION, AUDIT, VIOLATION HANDLING AND COMPLAINTS, REPORTS

Article 22. Inspection and Audit

1. During their operation, Representative Offices must be subject to inspection and audit by competent authorities as stipulated in Article 3 of this Decree and other competent authorities according to Vietnamese laws. Inspections and audits of Representative Offices must ensure compliance with functions, authority, and legal regulations on inspections and audits.

2. A person who makes an inspection or audit decision that violates the law or abuses such activities to harass or cause inconvenience to the operations of Representative Offices will be disciplined or criminally prosecuted if they cause damage, and must compensate according to the law.

Article 23. Handling Violations

1. Foreign trade promotion organizations and Representative Offices that violate the provisions of this Decree or commit specific violations listed below shall be subject to legal administrative violation handling measures depending on the nature and degree of the violation:

a) Falsely, inaccurately, or untimely declaring contents or changes in applications for issuance, reissuance, amendment, supplementation, and extension of Representative Office Establishment Permits;

b) Engaging in profit-making activities directly in Vietnam;

c) Not operating within the time limit specified in Clause 2, Article 8 of this Decree after obtaining the Representative Office Establishment Permit;

d) Not notifying the issuing authority; Provincial People's Committees, Municipalities, Departments of Industry and Trade as prescribed in Clause 2, Article 8 of this Decree;

đ) Not complying with the State Bank of Vietnam’s regulations on opening, using, and closing Representative Office accounts;

e) Not having a registered office for the Representative Office or leasing it out or representing another trade promotion organization;

g) Not submitting periodic reports on Representative Office activities to the issuing authority as required;

h) Not providing reports, documents, or explanations regarding issues related to Representative Office activities upon request from competent authorities as stipulated in Article 3 of this Decree;

i) Not processing amendments, supplements, or reissuances of the Permit as prescribed in this Decree;

k) Altering or tampering with contents in issued Permits;

l) Operating outside the scope of activities recorded in the Permit;

m) Not implementing or improperly implementing procedures to terminate operations as prescribed in this Decree;

n) Violating the obligations of Representative Offices and their heads as prescribed in this Decree;

o) Continuing operations after the foreign trade promotion organization has ceased operations;

p) Continuing operations after the issuing authority has revoked the Representative Office Establishment Permit;

q) Not publishing announcements as prescribed in Clause 1, Article 8 of this Decree.

2. In addition to administrative violation handling, in certain cases, the issuing authority may consider revoking the Representative Office Establishment Permit based on the nature and degree of the violation committed by the Representative Office. The revocation of the Representative Office Establishment Permit shall be carried out according to the provisions of Clauses 3, 4, and 5, Article 12 of this Decree. Situations where the Representative Office may be considered for permit revocation include:

a) Not officially commencing operations within six months from the date of issuance of the Representative Office Establishment Permit;

b) Ceasing operations continuously for six months without notifying the authority issuing the Permit to establish a Representative Office;

c) Not submitting annual reports on Representative Office activities;

d) Not submitting reports requested by competent authorities as stipulated in Article 3 of this Decree within sixty days from the date of the written request;

đ) Operating outside the functions of Representative Offices as prescribed by Vietnamese laws and relevant international conventions to which Vietnam is a member;

e) Employees working at Representative Offices violating Vietnamese labor laws.

3. The head of a Representative Office who violates the provisions of this Decree shall be subject to administrative penalties or criminal prosecution according to the law depending on the nature and degree of the violation.

4. Foreign trade promotion organizations conducting activities in Vietnam under the form of Representative Offices without a Representative Office Establishment Permit shall have their operations terminated in Vietnam and be subject to legal penalties for violations according to Vietnamese laws.

Article 24. Complaints and Accusations

Foreign trade promotion organizations have the right to complain and accuse regarding the issuance or refusal to issue the Representative Office Establishment Permit, decisions and actions contrary to the law, causing difficulties and inconvenience by civil servants and state agencies. The complaints and accusations and their resolution shall be carried out in accordance with the provisions of the law on complaints and accusations.

Chapter V

IMPLEMENTING PROVISIONS

Article 25. Effective Date

1. This Decree takes effect from December 15, 2011.

2. Representative offices established before this Decree takes effect shall continue to operate and must reapply for the Representative Office Establishment Permit in accordance with this Decree within six months from the date this Decree takes effect.

Article 26. Implementation

1. The Minister of Industry and Trade shall provide detailed implementation regulations for this Decree and provide detailed regulations on the issuance, reissuance, amendment, supplementation, and extension of the Representative Office Establishment Permit as stipulated in this Decree.

2. Ministers, Heads of Ministries equivalent to ministries, Heads of government agencies, Chairmen of People's Committees of provinces and centrally governed cities shall be responsible for implementing this Decision./.