Joint Circular No. 20/2000/TTLT-BTM-TCDL guiding and implementing the Government's Decree No. 45/2000/NĐ-CP dated September 6, 2000 on Representative Offices and Branches of Foreign Businesses and Foreign Tourism Enterprises in Vietnam.

JOINT CIRCULAR

GUIDING THE IMPLEMENTATION OF DECREE NO. 45/2000/NĐ-CP OF SEPTEMBER 6, 2000 ISSUED BY THE GOVERNMENT ON REPRESENTATIVE OFFICES AND BRANCHES OF FOREIGN TRADERS AND FOREIGN TOURISM ENTERPRISES IN VIETNAM

REGARDING REPRESENTATIVE OFFICES AND BRANCHES OF FOREIGN TRADERS AND FOREIGN TOURISM ENTERPRISES IN VIETNAM

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BASED ON DECREE NO. 45/2000/NĐ-CP OF SEPTEMBER 6, 2000 ISSUED BY THE GOVERNMENT ON REPRESENTATIVE OFFICES AND BRANCHES OF FOREIGN TRADERS AND FOREIGN TOURISM ENTERPRISES IN VIETNAM, HEREINAFTER REFERRED TO AS DECREE NO. 45/2000/NĐ-CP, THE MINISTRY OF TRADE AND THE NATIONAL TOURISM ADMINISTRATION ISSUE DETAILED GUIDANCE ON THE UNIFORM IMPLEMENTATION AS FOLLOWS:

I. OBJECTS AND CONDITIONS FOR GRANTING LICENSE TO ESTABLISH REPRESENTATIVE OFFICES AND BRANCHES

1. OBJECTS ELIGIBLE FOR LICENSE

FOREIGN TRADERS AND FOREIGN TOURISM ENTERPRISES, HEREINAFTER REFERRED TO AS FOREIGN TRADERS, IF THEY REQUEST AND MEET THE REQUIREMENTS AS PROVIDED FOR IN DECREE NO. 45/2000/NĐ-CP AND THIS GUIDANCE SHALL BE CONSIDERED FOR GRANTING A LICENSE TO ESTABLISH A REPRESENTATIVE OFFICE OR BRANCH IN VIETNAM

2. CONDITIONS FOR GRANTING LICENSE

a. FOR REPRESENTATIVE OFFICES

FOREIGN TRADERS BELONGING TO THE OBJECTS MENTIONED IN SECTION 1, PART I OF THIS CIRCULAR SHALL BE GRANTED A LICENSE TO ESTABLISH A REPRESENTATIVE OFFICE IN VIETNAM WHEN THEY HAVE LEGAL BUSINESS REGISTRATION ACCORDING TO THE LAWS OF THE COUNTRY WHERE THE FOREIGN TRADER'S HEADQUARTERS IS LOCATED AND THE BUSINESS CONTENT DOES NOT FALL UNDER THE PROHIBITED BUSINESS AREAS AS PROVIDED FOR BY VIETNAMESE LAW.

b. FOR BRANCHES

FOREIGN TRADERS BELONGING TO THE OBJECTS MENTIONED IN SECTION 1, PART I OF THIS CIRCULAR SHALL BE GRANTED A LICENSE TO ESTABLISH A BRANCH IN VIETNAM WHEN THEY MEET THE FOLLOWING CONDITIONS:

- HAVE LEGAL BUSINESS REGISTRATION ACCORDING TO THE LAWS OF THE COUNTRY WHERE THE FOREIGN TRADER'S HEADQUARTERS IS LOCATED.

- HAVE BEEN OPERATING FOR AT LEAST 5 YEARS FROM THE DATE OF BUSINESS REGISTRATION.

- ENGAGE IN THE SALE OF GOODS AND SERVICES LISTED IN THE CATALOGUE OF GOODS AND SERVICES THAT FOREIGN TRADERS' BRANCHES AND FOREIGN TOURISM ENTERPRISES ARE PERMITTED TO OPERATE IN VIETNAM AS PROVIDED FOR BY VIETNAMESE LAW FOR EACH PERIOD.

II. AUTHORITIES GRANTING LICENSE TO ESTABLISH REPRESENTATIVE OFFICES AND BRANCHES

1. FOR REPRESENTATIVE OFFICES

a. THE NATIONAL TOURISM ADMINISTRATION GRANTS, AMENDS, SUPPLEMENTS, AND REVOKES LICENSES TO ESTABLISH REPRESENTATIVE OFFICES OF FOREIGN TRADERS OPERATING IN THE TOURISM SECTOR.

b. THE PEOPLE'S COMMITTEE OF PROVINCES AND MUNICIPALITIES DIRECTLY UNDER THE CENTRAL GOVERNMENT (HEREINAFTER REFERRED TO AS THE PROVINCIAL PEOPLE'S COMMITTEE) GRANTS, AMENDS, SUPPLEMENTS, AND REVOKES LICENSES TO ESTABLISH REPRESENTATIVE OFFICES OF FOREIGN TRADERS:

- OPERATING IN THE COMMERCE SECTOR

- OPERATING IN BOTH THE COMMERCE AND TOURISM SECTORS AFTER RECEIVING WRITTEN AGREEMENT FROM THE NATIONAL TOURISM ADMINISTRATION REGARDING THE TOURISM SECTOR.

2. FOR BRANCHES

a. THE MINISTRY OF TRADE GRANTS, AMENDS, SUPPLEMENTS, AND REVOKES LICENSES TO ESTABLISH BRANCHES OF FOREIGN TRADERS:

- OPERATING IN THE COMMERCE SECTOR.

- OPERATING IN BOTH THE COMMERCE AND TOURISM SECTORS AFTER RECEIVING WRITTEN AGREEMENT FROM THE NATIONAL TOURISM ADMINISTRATION REGARDING THE TOURISM SECTOR.

b. THE NATIONAL TOURISM ADMINISTRATION GRANTS, AMENDS, SUPPLEMENTS, AND REVOKES LICENSES TO ESTABLISH BRANCHES OF FOREIGN TRADERS OPERATING IN THE TOURISM SECTOR.

III. DOCUMENTS AND PROCEDURES FOR GRANTING LICENSE TO ESTABLISH REPRESENTATIVE OFFICES AND BRANCHES

1. Documents

FOREIGN TRADERS APPLYING FOR A LICENSE TO ESTABLISH A REPRESENTATIVE OFFICE OR BRANCH SHALL SUBMIT ONE SET OF DOCUMENTS TO THE LICENSE GRANTING AUTHORITY:

The documents include:

a. APPLICATION FORM FOR A LICENSE TO ESTABLISH A REPRESENTATIVE OFFICE OR BRANCH OF A FOREIGN TRADER (THE APPLICATION FORM FOR A LICENSE TO ESTABLISH A REPRESENTATIVE OFFICE IS MADE ACCORDING TO MODEL 1A; THE APPLICATION FORM FOR A LICENSE TO ESTABLISH A BRANCH IS MADE ACCORDING TO MODEL 1B ISSUED ALONG WITH THIS CIRCULAR);

b. COPIES OF THE BUSINESS REGISTRATION CERTIFICATE OF THE FOREIGN TRADER, CONFIRMED BY THE COMPETENT AUTHORITY IN THE FOREIGN COUNTRY AND TRANSLATED INTO VIETNAMESE BY A VIETNAMESE NOTARY PUBLIC OR THE VIETNAMESE DIPLOMATIC MISSION OR CONSULATE IN THE FOREIGN COUNTRY.

OTHER THAN THE TWO TYPES OF DOCUMENTS ABOVE, FOREIGN TRADERS DO NOT NEED TO SUBMIT ANY OTHER DOCUMENTS.

2. PROCEDURE

a. WITHIN 15 DAYS FROM THE DATE OF RECEIVING COMPLETE AND LEGAL DOCUMENTS, THE LICENSE GRANTING AUTHORITY SHALL ISSUE A LICENSE TO ESTABLISH A REPRESENTATIVE OFFICE OR BRANCH IN VIETNAM TO THE FOREIGN TRADER (THE LICENSE TO ESTABLISH A REPRESENTATIVE OFFICE IS ACCORDING TO MODEL 2A; THE LICENSE TO ESTABLISH A BRANCH IS ACCORDING TO MODEL 2B ISSUED ALONG WITH THIS CIRCULAR).

FOR THE GRANTING OF LICENSES TO ESTABLISH REPRESENTATIVE OFFICES AND BRANCHES OPERATING IN BOTH THE COMMERCE AND TOURISM SECTORS, THE LICENSE GRANTING AUTHORITY SHALL SEND A LETTER TO THE NATIONAL TOURISM ADMINISTRATION TO SEEK THEIR OPINION BEFORE DECIDING TO ISSUE THE LICENSE TO THE FOREIGN TRADER. WITHIN 5 WORKING DAYS FROM THE DATE OF RECEIVING THE LETTER FROM THE LICENSE GRANTING AUTHORITY, THE NATIONAL TOURISM ADMINISTRATION SHALL PROVIDE THEIR WRITTEN OPINION AGREEING OR DISAGREEING (WITH CLEAR REASONS) TO ALLOW THE LICENSE GRANTING AUTHORITY TO DECIDE WHETHER TO ISSUE THE LICENSE TO THE FOREIGN TRADER IN THE TOURISM SECTOR.

b. THE ORIGINAL LICENSE ISSUED TO THE FOREIGN TRADER AND COPIES OF THE LICENSE FROM THE LICENSE GRANTING AUTHORITY SHALL BE SENT TO THE RELATED AUTHORITIES AS PROVIDED FOR IN POINTS a, b, c OF CLAUSE 2, ARTICLE 7 OF DECREE NO. 45/2000/NĐ-CP AND RETAINED AT THE LICENSE GRANTING AUTHORITY.

c. IN CASE THE DOCUMENTS ARE INCOMPLETE OR ILLEGAL, WITHIN 3 WORKING DAYS FROM THE DATE OF RECEIVING THE DOCUMENTS, THE LICENSE GRANTING AUTHORITY MUST ISSUE A WRITTEN NOTICE TO THE FOREIGN TRADER TO SUPPLEMENT AND COMPLETE THE DOCUMENTS.

IV. BUSINESS CONTENT OF REPRESENTATIVE OFFICES AND BRANCHES

1. FOR REPRESENTATIVE OFFICES

THE BUSINESS CONTENT OF REPRESENTATIVE OFFICES IS SPECIFIED IN THE LICENSE ACCORDING TO CLAUSE 1, ARTICLE 13 OF DECREE NO. 45/2000/NĐ-CP.

2. FOR BRANCHES

a. BRANCHES OPERATING IN THE COMMERCE SECTOR

THE BUSINESS CONTENT IS SPECIFIED IN THE LICENSE TO ESTABLISH A BRANCH, INCLUDING:

- PERMITTED TO PURCHASE GOODS AS LISTED IN SECTION II OF THE CATALOGUE OF GOODS AND SERVICES THAT FOREIGN TRADERS' BRANCHES ARE PERMITTED TO OPERATE IN VIETNAM TO SELL IN THE VIETNAMESE MARKET THROUGH AGENTS OR DIRECT SALES STORES TO INTRODUCE AND SELL SUCH GOODS WHEN THERE IS FOREIGN CURRENCY EARNED FROM EXPORTING THE GOODS LISTED IN SECTION I OF THE CATALOGUE WITH THE CONDITION OF HAVING PERMISSION FROM THE MINISTRY OF TRADE AND THE IMPORT VALUE NOT EXCEEDING THE EXPORT VALUE;

- NOT PERMITTED TO PURCHASE GOODS IN VIETNAM FOR SALE IN VIETNAM.

b. BRANCHES OPERATING IN THE TOURISM SECTOR

The content of the activities will be specifically guided according to the Catalogue of Goods and Services for Foreign Business Branches permitted to operate in Vietnam for each period.

V. On Amending the Content of the License

1. When there is a need to amend the content of the License for Establishing a Representative Office, Branch, foreign traders must submit a request to the issuing authority along with documentation proving that the amendment is in compliance with the laws of the country where the foreign trader's headquarters is located and Vietnamese law.

2. The procedure for issuing a new License to amend, supplement, or replace an issued License shall be carried out in accordance with the guidance provided in Section 2, Part III of this Circular.

3. When changing the location of the headquarters of the Representative Office, Branch within the same province (city) or changing the head, the Representative Office, Branch does not need to go through the procedure to amend or supplement the License but must notify the issuing authority about the change within a period not exceeding ten days from the date of the change.

VI. Rights and Obligations of the Representative Office and Persons Working at the Representative Office

1. The Representative Office operates according to the contents recorded in the License;

2. The Representative Office may only lease one location for its headquarters; it may lease or purchase necessary equipment for its operations;

3. The Representative Office may hire Vietnamese and foreign nationals to work at the Representative Office in accordance with Vietnamese law;

4. The Representative Office opens a dedicated foreign currency account and a dedicated Vietnamese dong account with a foreign currency base at a bank permitted to operate in Vietnam and may only use these accounts for the Representative Office’s operations;

5. The Representative Office may import necessary equipment for its operations in accordance with Vietnamese law;

6. The Representative Office has its own seal in accordance with Vietnamese law;

7. The Representative Office must implement regular reporting on its activities as stipulated in Clause 4, Article 14 of Decree No. 45/2000/NĐ-CP;

8. The Representative Office may not engage in business, may not sublease its premises, and may not perform representative functions for other traders in Vietnam;

9. The Head of the Representative Office may sign contracts for the sale of goods and provision of services (excluding travel agency contracts and tourist transportation contracts) with Vietnamese traders when authorized by the foreign trader for each contract;

10. Persons working at the Representative Office exercise their rights and fulfill their obligations in accordance with Vietnamese law.

VII. Rights and Obligations of the Branch and Persons Working at the Branch

1. The Branch operates according to the contents recorded in the License;

2. The Branch may only lease one location for its headquarters; it may lease or purchase necessary equipment for its operations;

3. The Branch may hire Vietnamese and foreign nationals to work at the Branch in accordance with Vietnamese law;

4. The Branch may open foreign currency and Vietnamese dong accounts at banks permitted to operate in Vietnam to serve its operations;

5. The Branch may import necessary equipment for its operations in accordance with Vietnamese law;

6. The Branch has its own seal in accordance with Vietnamese law;

7. The Branch may repatriate profits in accordance with Vietnamese law;

8. The Branch must register, declare, and pay taxes in accordance with Vietnamese law;

9. The Branch must implement accounting systems and regular reporting as stipulated in Clause 4, Article 15 of Decree No. 45/2000/NĐ-CP;

10. The Branch Manager has the right to sign contracts consistent with the Branch's operational content;

11. Persons working at the Branch exercise their rights and fulfill their obligations in accordance with Vietnamese law.

To implement this action program, the following departments and units have the task of developing specific implementation plans for their units to carry out assigned tasks. These plans need to be completed and submitted for approval by the Governor before February 28, 2003.

1. Licenses for establishing Representative Offices that expired from October 1, 2000 onwards remain valid for implementation; foreign traders do not need to apply for new licenses but must submit a notification to the issuing authority between November 2, 2000 and December 1, 2000 regarding the name of the foreign trader, the name of the Representative Office, the location of the headquarters, and the operational content of the Representative Office, accompanied by a copy of the issued License.

2. This Circular takes effect from November 1, 2000./.