Circular No. 11/2006/TT-BTM guiding the implementation of Decree No. 72/2006/NĐ-CP dated July 25, 2006 of the Government detailing the Law on Trade regarding Representative Offices and Branches of foreign traders in Vietnam.

CIRCULAR

||| Guidelines for implementing Decree No. 72/2006/NĐ-CP dated July 25, 2006 of the Government detailing the Law on Trade regarding Representative Offices and Branches of foreign traders in Vietnam

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||| Pursuant to Decree No. 29/2004/NĐ-CP dated January 16, 2004 of the Government on the functions, tasks, powers, and organizational structure of the Ministry of Trade;

||| Pursuant to Decree No. 72/2006/NĐ-CP dated July 25, 2006 of the Government detailing the Law on Trade regarding Representative Offices and Branches of foreign traders in Vietnam (hereinafter referred to as Decree No. 72/2006/NĐ-CP);

||| The Ministry of Trade guides the dossier, procedures, and formalities for issuing, reissuing, amending, supplementing, extending the Business Registration Certificate for establishing Branches and Representative Offices, reporting activities, submitting activity reports, and terminating activities of Representative Offices and Branches of foreign traders in Vietnam as stipulated in Decree No. 72/2006/NĐ-CP as follows:

This technical regulation sets out technical requirements, testing methods, sampling procedures; management requirements; responsibilities of organizations and individuals producing, trading, and importing cigarettes.

1. Authority issuing, reissuing, amending, supplementing, extending, and revoking the Business Registration Certificate for establishing Representative Offices and Branches of foreign traders in Vietnam (hereinafter referred to as the authority issuing the Business Registration Certificate)

a) The Ministry of Trade is the authority issuing, reissuing, amending, supplementing, extending, and revoking (amending and supplementing hereinafter collectively referred to as adjusting) the Business Registration Certificate for establishing Branches of foreign traders (hereinafter referred to as Branches).

b) Provincial Departments of Trade or Tourism Departments of centrally governed cities (hereinafter collectively referred to as Departments of Trade) are the authorities issuing, reissuing, adjusting, extending, and revoking the Business Registration Certificate for establishing Representative Offices of foreign traders (hereinafter referred to as Representative Offices) within their jurisdictional areas.

2. Responsibilities of the authority issuing the Business Registration Certificate

a) Issuing, reissuing, adjusting, extending, and revoking the Business Registration Certificate for establishing Representative Offices and Branches for foreign traders according to the provisions of Decree No. 72/2006/NĐ-CP.

b) Reviewing the termination of operations of Representative Offices and Branches according to the provisions of Decree No. 72/2006/NĐ-CP and the guidelines set out in this Circular.

c) Collecting, managing, and using fees for issuing, reissuing, adjusting, and extending the Business Registration Certificate for establishing Representative Offices and Branches according to the guidance of the Ministry of Finance.

d) Implementing complete record-keeping systems for issuing, reissuing, adjusting, extending, and revoking the Business Registration Certificate for establishing Representative Offices and Branches in accordance with the relevant laws on record-keeping.

đ) Taking the lead and coordinating with competent state agencies to conduct inspections and supervision of the organization and operation of Representative Offices and Branches; identifying and handling violations of Representative Offices and Branches within their authority or referring them to competent authorities for handling according to the law.

e) The Ministry of Trade is responsible for publicly disclosing information about Representative Offices and Branches of foreign traders in Vietnam on the Ministry's website: http://www.mot.gov.vn; implementing the development and management software for Representative Offices and Branches and guiding its use and updating information about Representative Offices for Departments of Trade.

g) Departments of Trade are responsible for updating information about newly issued, reissued, amended, supplemented, extended, and revoked Business Registration Certificates for establishing Representative Offices of foreign traders in their localities once a month according to the management information software guided by the Ministry of Trade and compiling periodic reports to the Ministry of Trade as stipulated in Clause 3, Article 26 of Decree No. 72/2006/NĐ-CP.

h) Other responsibilities as prescribed by law.

3. General conditions for the dossier for issuing, reissuing, adjusting, and extending the Business Registration Certificate for establishing Representative Offices and Branches

a) Documents issued or confirmed by competent authorities abroad for the dossier of Representative Offices and Branches according to the provisions of Decree No. 72/2006/NĐ-CP and the guidelines in this Circular must be legalized according to Vietnamese law and translated into Vietnamese; translations and copies must be notarized according to Vietnamese law.

b) Copies of documents issued or confirmed by competent Vietnamese authorities for the dossier of Representative Offices and Branches according to the provisions of Decree No. 72/2006/NĐ-CP and the guidelines in this Circular must be notarized according to Vietnamese law.

II. Dossier for Requesting Issuance, Reissuance, Adjustment, and Extension of the Business Registration Certificate for Establishing Representative Offices and Branches

1. Dossier for requesting issuance of the Business Registration Certificate for establishing Representative Offices and Branches

The dossier for requesting issuance of the Business Registration Certificate for establishing Representative Offices and Branches includes the documents specified in Article 5 of Decree No. 72/2006/NĐ-CP, including:

a) The application form for issuing the Business Registration Certificate for establishing Representative Offices and Branches shall be implemented according to Model MD-1 in Appendix I attached to this Circular;

b) Other documents of equivalent value as specified in point c, Clause 1 and point d, Clause 2 of Article 5 of Decree No. 72/2006/NĐ-CP include: confirmation documents on tax or financial obligations in the most recent fiscal year issued by the competent authority where the foreign trader was established or other documents issued or confirmed by independent organizations with authority proving the existence and actual operation of the foreign trader in the most recent fiscal year.

2. Dossier for requesting adjustment of the Business Registration Certificate for establishing Representative Offices and Branches

The dossier for requesting adjustment of the Business Registration Certificate for establishing Representative Offices and Branches includes the documents specified in Clause 2 of Article 10 of Decree No. 72/2006/NĐ-CP, including the application form for adjusting the Business Registration Certificate according to Model MD-2 in Appendix I attached to this Circular.

3. Dossier for requesting reissuance of the Business Registration Certificate for establishing Representative Offices and Branches as stipulated in Article 11 of Decree No. 72/2006/NĐ-CP

||| The dossier for requesting reissuance of the Business Registration Certificate for establishing Representative Offices and Branches in cases stipulated in Article 11 of Decree No. 72/2006/NĐ-CP includes the documents specified in Article 12 of Decree No. 72/2006/NĐ-CP, including the application form for reissuing the Business Registration Certificate according to Model MD-3 in Appendix I attached to this Circular.

4. Dossier for requesting reissuance of the Business Registration Certificate for establishing Representative Offices and Branches as stipulated in Article 31 of Decree No. 72/2006/NĐ-CP

a) The application dossier for reissuing the License to establish a Representative Office or Branch, in cases where the reissuance of the License to establish a Representative Office or Branch is requested according to Article 31 of Decree No. 72/2006/ND-CP, includes the documents specified in Clause 2 of Article 12 of Decree No. 72/2006/ND-CP, among which the request for reissuing the License shall be carried out according to Model MD-3 in Appendix I attached hereto.

b) The content of activities recorded on the reissued License remains unchanged from the content of activities recorded on the previously issued License, except in the case guided at point d of this clause.

c) The validity period of the reissued License for a Representative Office or Branch shall be implemented according to the provisions of Clause 3 of Article 4 of Decree No. 72/2006/ND-CP.

d) In the case where the Representative Office or Branch operates in the fields of trade and tourism according to the License to establish a Representative Office or Branch issued under Decree No. 45/2000/ND-CP dated September 6, 2000 of the Government regarding Representative Offices and Branches of foreign traders and foreign travel enterprises in Vietnam, the issuing authority shall only issue a new License to establish a Representative Office in accordance with the provisions of Article 16 of Decree No. 72/2006/ND-CP and a new License to establish a Branch in accordance with the provisions of Clause 2 of Article 2 and Article 17 of Decree No. 72/2006/ND-CP, following the guidance provided in Clause 1 of Section I of this Circular.

The contents of activities in the field of tourism stipulated in the License issued according to Decree No. 45/2000/ND-CP remain valid; in cases where new regulatory legal documents provide for Representative Offices and Branches operating in the field of tourism, they shall be implemented according to such legal documents.

5. Application dossier for extending the License to establish a Representative Office or Branch

The application dossier for extending the License to establish a Representative Office or Branch includes the documents specified in Clause 2 of Article 14 of Decree No. 72/2006/ND-CP, including:

a) The request for extending the License carried out according to Model MD-4 in Appendix I attached hereto;

b) Other documents having equivalent value as specified in point b of Clause 2 of Article 14 of Decree No. 72/2006/ND-CP, including: confirmation documents on tax or financial obligations in the most recent fiscal year issued by the competent authority where the foreign trader was established, or other documents certified by independent organizations with authority to confirm the existence and actual operation of the foreign trader in the most recent fiscal year.

6. Application dossier for extending and amending the License to establish a Representative Office or Branch

In cases where a foreign trader requests both extension and amendment of the License to establish a Representative Office or Branch in Vietnam, the application dossier for extension and amendment shall be carried out as in the case of extension. The request for extending and amending the License shall be carried out according to Model MD-5 in Appendix I attached hereto.

III. PROCEDURES FOR ISSUING, REISSUING, AMENDING, AND EXTENDING THE LICENSE TO ESTABLISH A REPRESENTATIVE OFFICE OR BRANCH

1. Receiving applications

a) Foreign traders submit the application dossier for issuing, reissuing, amending, or extending the License to establish a Representative Office or Branch according to detailed guidance in Section II of this Circular to the issuing authority specified in Clause 1 of Section I.

b) The issuing authority receives the application dossier of the foreign trader and issues a receipt. The receipt is made in three copies according to the model provided in Appendix VI attached hereto: one copy is handed over to the foreign trader or their legally authorized representative, one copy is kept in the archive department receiving the dossier, and one copy is handed over to the department directly processing the dossier along with the dossier of the foreign trader.

c) In cases where the dossier is not compliant, within three working days from the date of receiving the dossier, the issuing authority must notify in writing for the foreign trader to supplement and complete the dossier.

d) The submission, receipt, and processing of dossiers through electronic information networks shall be carried out according to the regulations of the issuing authority but must ensure the deadlines set forth in Decree No. 72/2006/ND-CP.

2. Examination of the Dossier

a) The issuing authority conducts the examination of the dossier according to the specific deadline stipulated in Decree No. 72/2006/ND-CP based on the received dossier and relevant laws. The examination period starts from the date when the issuing authority receives a compliant dossier according to Decree No. 72/2006/ND-CP and the guidance provided in Clause 1 of this Section.

b) The result of the examination of the dossier content of the foreign trader serves as the basis for the issuing authority to decide whether to approve or disapprove the issuance, reissuance, amendment, or extension of the License.

3. Sample and Number of the License to Establish a Representative Office or Branch

a) The License to establish a Representative Office is carried out according to Model GP-1 in Appendix II, and the License to establish a Branch is carried out according to Model GP-2 in Appendix II attached hereto. The detailed content recording on the License is carried out according to the guidance provided in Appendix VIII attached hereto.

b) The number of the License to establish a Representative Office includes the province code and the serial number of the Representative Office. The codes are separated by a hyphen, wherein:

- The province code consists of two characters (as guided in Appendix VII attached hereto);

- The serial number of the Representative Office consists of six characters, ranging from 000001 to 999999.

Example: The number of the License issued for the tenth Representative Office in Hanoi is recorded as follows: 01-000010

c) The number of the License to establish a Branch includes the serial number of the Branch: six characters, ranging from 000001 to 999999.

d) The number of the License recorded on the amended, reissued, and extended License to establish a Representative Office or Branch is the number recorded on the previously issued License.

4. Issuing the License to Establish a Representative Office or Branch

a) The representative office establishment permit or branch establishment permit must be directly handed over to the head of the representative office or branch or the legally authorized representative of the foreign trader by the issuing authority, and the recipient must sign for receipt in the registration book according to the regulations of the issuing authority.

b) In cases of amendment, reissue (except for reissue due to destruction or loss of the permit as stipulated in Clause 2, Article 11 of Decree No. 72/2006/NĐ-CP), the issuing authority shall reclaim the previously issued permit. The cover of the permit remains unchanged, only the inner pages of the permit are reclaimed and replaced.

c) The issuing authority collects fees for issuance, reissuance, amendment, and extension of permits before issuing the permit to the foreign trader, following the guidance of the Ministry of Finance.

IV. ANNOUNCEMENT OF OPERATIONS AND REGULAR REPORTING SYSTEM FOR REPRESENTATIVE OFFICES AND BRANCHES

1. Notification of operations of representative offices and branches to the issuing authority

a) Notifications of operations of representative offices and branches to the issuing authority, as prescribed in Clause 2 and Clause 3, Article 8 of Decree No. 72/2006/NĐ-CP, shall be made using the Model (in Appendix III) issued together with this Circular.

b) The issuing authority shall accept notifications from foreign traders according to the guidance provided in point a of this clause and issue a receipt. The receipt shall be prepared in three copies according to the Model (in Appendix VI) issued together with this Circular: one copy given to the foreign trader or their legally authorized representative, one copy kept at the document section, and one copy given to the department directly handling the file along with the trader's file.

c) After receiving the notification as directed in point b of this clause, the issuing authority shall verify the validity of the notification and accompanying documents within three working days and notify in writing to the representative office or branch requesting corrections or supplements if the notification or accompanying documents are not valid.

d) After completing the procedures for reissuing the operation permit of the representative office as prescribed in point a, Clause 1, Article 11 of Decree No. 72/2006/NĐ-CP, the representative office must follow the guidelines in points a, b, and c of this clause to complete the notification procedures.

2. Reporting system for operations of representative offices and branches

a) Annual operational reports of representative offices shall be conducted according to Model BC-1 in Appendix IV, while branches shall conduct them according to Model BC-2 in Appendix IV, both issued together with this Circular. Reports must be completed fully, accurately, and truthfully, and submitted on time as prescribed in Clause 1, Article 19 of Decree No. 72/2006/NĐ-CP.

b) During operations in Vietnam, if there are changes in personnel hired to work at the representative office or branch, within ten days from the date of change, the representative office or branch must submit a report along with copies of relevant documents to the issuing authority.

V. TERMINATION OF OPERATIONS OF REPRESENTATIVE OFFICES AND BRANCHES

1. Termination of operations of representative offices and branches as prescribed in points a, b, and c, Clause 1, Article 22 of Decree No. 72/2006/NĐ-CP

a) Notifications of planned termination of operations of representative offices and branches, as prescribed in Clause 2, Article 22 of Decree No. 72/2006/NĐ-CP, shall be conducted according to Model TB-1 in Appendix V, issued together with this Circular. The issuing authority shall confirm in writing the planned termination of operations for the representative office or branch to serve as a basis for the representative office or branch to fulfill related obligations.

b) After fulfilling the obligations prescribed in Clause 3, Article 23 of Decree No. 72/2006/NĐ-CP, the representative office or branch shall notify the issuing authority according to Model TB-2 in Appendix V, issued together with this Circular.

c) The issuing authority shall accept the notification from the foreign trader according to the guidance provided in point b of this clause and issue a receipt. The receipt shall be prepared in three copies according to the Model (in Appendix VI) issued together with this Circular: one copy given to the foreign trader or their legally authorized representative, one copy kept at the document section, and one copy given to the department directly handling the file along with the trader's file.

d) After receiving the notification as directed in point b of this clause, the issuing authority shall verify the validity of the notification and accompanying documents within three working days and notify in writing to the representative office or branch requesting corrections or supplements if the notification or accompanying documents are not valid. Within ten working days from the date of receipt of the valid notification and documents, the issuing authority shall review the completion of the obligations of the representative office or branch and process the removal of the representative office or branch from the registration book according to Clause 4, Article 22 of Decree No. 72/2006/NĐ-CP.

2. Termination of operations of representative offices and branches as prescribed in points d and đ, Clause 1, Article 22 of Decree No. 72/2006/NĐ-CP

a) The decision not to extend or revoke the establishment permit of the representative office or branch simultaneously serves as the decision to terminate operations, specifying the reasons for non-extension, revocation, and the date of termination.

b) The issuing authority shall announce the termination of operations of the representative office or branch according to Clause 3, Article 22 of Decree No. 72/2006/NĐ-CP.

c) After fulfilling the obligations prescribed in Clause 4, Article 23 of Decree No. 72/2006/NĐ-CP, the representative office or branch shall notify the issuing authority according to Model TB-2 in Appendix V, issued together with this Circular.

d) The issuing authority shall accept the notification from the foreign trader as guided in point b of this clause and issue a receipt. The receipt shall be prepared in three copies according to the Model (in Appendix VI) issued together with this Circular: one copy given to the foreign trader or their legally authorized representative, one copy kept at the document section, and one copy given to the department directly handling the file along with the trader's file.

VI. IMPLEMENTATION

1. The Department of Planning and Investment, under the Ministry of Trade, shall be responsible for issuing, reissuing, amending, supplementing, extending, and revoking the License for Establishing a Branch in accordance with Clause 1 of Article 3 of Decree No. 72/2006/NĐ-CP and the guidance provided in this Circular.

2. The Department of E-commerce, under the Ministry of Trade, shall be responsible for developing and implementing software to manage information on Representative Offices and Branches, and coordinating with the Department of Planning and Investment in updating and publicly disclosing statistical data and related information during the implementation of state management functions over Representative Offices and Branches on the Ministry of Trade's website: http://www.mot.gov.vn; establishing communication channels and providing guidance on using the management software to update information on Representative Offices for Provincial Departments of Trade.

3. Provincial Departments of Trade shall perform the tasks assigned within their respective functions as stipulated in Clause 2 of Article 3 and Article 26 of Decree No. 72/2006/NĐ-CP and the guidance provided in this Circular.

4. This Circular shall take effect fifteen days from the date of publication in the Official Gazette and shall replace the relevant provisions concerning Representative Offices and Branches of foreign traders (excluding foreign travel enterprises) in Joint Circular No. 20/2000/TTLT-BTM-TCDL dated October 20, 2000 issued by the Ministry of Trade and the General Administration of Tourism.

5. During the implementation of this Circular, if any difficulties arise, organizations and individuals concerned shall promptly report them to the Ministry of Trade for timely resolution./.