Circular No. 28/2012/TT-BCT detailing the registration of export rights and import rights for foreign traders without a presence in Vietnam

CIRCULAR

Detailed regulations on the registration of export rights and import rights for foreign traders without presence in Vietnam

Foreign traders without presence in Vietnam

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Pursuant to Decree No. 189/2007/NĐ-CP dated December 27, 2007 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Industry and Trade, and Decree No. 44/2011/NĐ-CP dated June 14, 2011 of the Government amending and supplementing Article 3 of Decree No. 189/2007/NĐ-CP;

Pursuant to Decree No. 90/2007/NĐ-CP dated May 31, 2007 of the Government stipulating export rights, import rights of foreign traders without presence in Vietnam;

Pursuant to Decree No. 23/2007/NĐ-CP dated February 12, 2007 of the Government detailing the Law on Trade regarding trading activities and related activities directly connected with trading activities of enterprises with foreign investment capital in Vietnam;

Pursuant to Decree No. 12/2006/NĐ-CP dated January 23, 2006 of the Government detailing the implementation of the Law on Trade regarding international trading activities and agency buying, selling, processing, and transiting activities with foreign goods.

The Minister of Industry and Trade issues this Circular to provide guidance on Detailed regulations on the registration of export rights and import rights for foreign traders without presence in Vietnam are as follows:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation and Applicability

Article 1. This Circular stipulates the issuance, reissuance, amendment, supplementation, extension, and revocation of the Certificate of Registration of Export Rights and Import Rights for foreign traders without presence in Vietnam.

Article 2. This Circular applies to foreign traders from countries and territories that are members of the World Trade Organization (WTO) and countries and territories that have bilateral agreements with Vietnam on export rights and import rights, and other organizations and individuals related to the export and import activities of foreign traders without presence in Vietnam.

Article 3. This Circular does not regulate trading activities at border markets, customs clearance markets, and markets within border economic zones of traders from neighboring countries.

Article 2. Implementation of Export Rights

Clause 1. Foreign traders without presence in Vietnam (hereinafter referred to as non-present traders) who have been issued a Certificate of Registration of Export Rights and Import Rights shall implement their export rights as follows:

Point a) They are allowed to export goods not included in the list of prohibited export goods, the list of temporarily suspended export goods, and the list of goods not permitted to be exported under international commitments. For goods subject to conditions for export, they must meet the conditions stipulated by law;

Point b) For goods listed in the schedule of goods to be exported under international commitments, they must follow the commitment schedule;

Point c) They may directly handle export procedures at customs offices based on purchase contracts signed with Vietnamese traders according to the provisions of law;

Point d) The exported goods must be consistent with the contents of the Certificate of Registration of Export Rights and Import Rights.

Clause 2. Non-present traders are only allowed to directly purchase goods from Vietnamese traders registered for business or having export rights or distribution rights for such goods for export purposes; they are not allowed to organize networks to collect goods in Vietnam for export, including setting up locations to collect export goods, except where otherwise provided by Vietnamese law or international treaties to which the Socialist Republic of Vietnam is a party.

Article 3. Implementation of Import Rights

1. A non-resident trader who has been granted an Export and Import Registration Certificate shall implement import rights as follows:

a) They may import goods not included in the list of prohibited imports, the list of temporarily suspended imports, or the list of imports not permitted under international commitments. For conditional imported goods, they must meet the conditions stipulated by law;

b) For goods listed in the import schedule under international commitments, implementation shall be carried out according to the commitment schedule;

c) They may directly handle import procedures at customs authorities based on sales contracts signed with Vietnamese traders in accordance with the provisions of the law;

d) Imported goods must be consistent with the contents of the Export and Import Registration Certificate.

2. Non-resident traders may only directly sell imported goods to Vietnamese traders registered for business or having the right to distribute such goods, and shall not organize or participate in distribution systems in Vietnam, except where otherwise provided by Vietnamese law or international treaties to which the Socialist Republic of Vietnam is a party.

Chapter II

DOCUMENTS AND PROCEDURES FOR ISSUANCE, REISSUE, AMENDMENT, SUPPLEMENTATION, EXTENSION, AND REVOCATION OF THE EXPORT AND IMPORT REGISTRATION CERTIFICATE

Article 4. Procedures for Issuance, Reissue, Amendment, Supplementation, Extension

1. Non-resident traders shall submit one set of documents to the Ministry of Industry and Trade (Department of Import and Export) to be considered for issuance, reissuance, amendment, supplementation, or extension of the Export and Import Registration Certificate.

2. The time limit for issuance, reissuance, amendment, supplementation, or extension of the Export and Import Registration Certificate shall be implemented in accordance with Articles 9, 12, and 13 of Decree No. 90/2007/ND-CP dated May 31, 2007 of the Government on the export and import rights of foreign traders without presence in Vietnam (hereinafter referred to as Decree No. 90/2007/ND-CP).

3. The validity period of the Export and Import Registration Certificate is five years.

Article 5. Documents for Issuance of the Export and Import Registration Certificate

1. The application documents for issuance of the Export and Import Registration Certificate include:

a) An application form for issuance of the Export and Import Registration Certificate in accordance with Model MD-1 attached as Appendix I to this Circular;

b) The original confirmation letter from the competent authority of the country where the trader is registered regarding the fact that the non-resident trader has not had their trading rights revoked or is not subject to penalties related to trading activities as stipulated by the laws of the country where the foreign trader is established;

c) The original confirmation letter from the competent authority of the country where the trader is registered regarding the fact that the non-resident trader has no criminal record, is not restricted or deprived of civil capacity if the non-resident trader is an individual or the legal representative of the non-resident trader if it is an economic organization;

d) Certified copies of the business registration certificate or equivalent documents for economic organizations; certified copies of identity cards, passports, or other legally recognized personal identification documents for individuals;

đ) Certified copies of audited financial reports or documents confirming tax obligations or financial obligations in the most recent fiscal year issued by the competent authority of the country where the foreign trader is established, or other documents issued or confirmed by the competent authority regarding the existence and actual operation of the foreign trader in the most recent fiscal year in accordance with the laws of that country;

e) The original confirmation document of the operating capital and bank account number of the foreign trader;

g) An agreement between the representative of the foreign trader in Vietnam and the non-resident trader specifying the name, contact address, and telephone number;

h) Certified copies of the business registration certificate of the economic organization representing the non-resident trader in Vietnam or certified copies of identity cards, passports, or other legally recognized personal identification documents for individual representatives.

3. The documents specified in points b, c, d, đ, e of Clause 2 of this Article must be translated into Vietnamese and legalized in accordance with Vietnamese law. In case the document specified in point g of Clause 2 of this Article is in a foreign language, it must be translated into Vietnamese and notarized or legalized.

Article 6. Documents for Amending, Supplementing, Reissuing Export and Import Right Registration Certificate

1. When amending or supplementing any content recorded in the Export and Import Right Registration Certificate, the non-resident trader must notify the issuing authority and simultaneously complete the procedures to amend or supplement the Export and Import Right Registration Certificate.

2. The documents for requesting amendment, supplementation, or reissuance of the Export and Import Right Registration Certificate include:

a) Application form for amending, supplementing, or reissuing the Export and Import Right Registration Certificate, implemented according to Model MD-2, MD-3 in Appendix I issued together with this Circular;

b) Original Export and Import Right Registration Certificate that has been issued. In case the original is lost, burned, or destroyed, the non-resident trader must present a certified copy or confirmation from the competent authority;

c) Original certificate from the Vietnamese tax authority confirming that the non-resident trader has fulfilled all tax and financial obligations to the Vietnamese State up to the time of requesting to amend or supplement the Export and Import Right Registration Certificate;

d) Certified copies of the business registration certificate or equivalent documents for economic organizations; certified copies of identity cards, passports, or other legally recognized personal identification documents for individuals;

d) Certified copy of legal documents proving changes in the content of the Export and Import Right Registration Certificate.

3. The documents specified in points d and đ of Clause 2 of this Article must be translated into Vietnamese and legalized according to Vietnamese law.

Article 7. Documents for Extending the Export and Import Right Registration Certificate

1. The documents for requesting extension of the Export and Import Right Registration Certificate include:

a) Application form for extending the Export and Import Right Registration Certificate, implemented according to Model MD-4 in Appendix I issued together with this Circular;

b) Original Export and Import Right Registration Certificate that has been issued or a certified copy in case the original is lost, burned, or destroyed;

c) Certified copy of audited financial report or document confirming the fulfillment of tax or financial obligations in the most recent fiscal year issued by the competent authority where the foreign trader is 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 according to the laws of that country;

d) Report on export and import activities from the date of issuance of the Export and Import Right Registration Certificate to the date of requesting extension, based on annual activity reports compiled according to Clause 1 of Article 12 of this Circular;

đ) Original certificate from the Vietnamese tax authority confirming that the non-resident trader has fulfilled all tax and financial obligations to the Vietnamese State up to the time of requesting to extend the Export and Import Right Registration Certificate.

2. The documents specified in points c and d of Clause 1 of this Article must be translated into Vietnamese and legalized according to Vietnamese law.

3. After the expiration of the extended Export and Import Right Registration Certificate, if the non-resident trader still wishes to register for export and import rights, they must follow the procedures for initial extension as stipulated above regarding the documents and procedures.

Article 8. Extension and Amendment of Export and Import Right Registration Certificate

In cases where non-resident traders simultaneously request extension and amendment of the Export and Import Right Registration Certificate, the procedures for requesting extension and amendment shall be carried out according to Articles 6 and 7 of this Circular, wherein the Application for Extension and Adjustment of the Export and Import Right Registration Certificate shall be made in accordance with Form MD-5 in Appendix I attached to this Circular.

Article 9. Termination of Export and Import Rights in Vietnam

1. The termination of export and import rights in Vietnam of non-resident traders shall be implemented in accordance with Article 14 of Decree No. 90/2007/NĐ-CP.

2. Non-resident traders terminating their export and import rights in accordance with points a and b of Clause 1, Article 14 of Decree No. 90/2007/NĐ-CP must submit a notification letter to the Ministry of Industry and Trade regarding the planned cessation of activities of non-resident traders using Form TB in Appendix I attached to this Circular.

Article 10. Revocation of Export and Import Right Registration Certificate

Non-resident traders whose Export and Import Right Registration Certificate is revoked shall comply with Clause 2, Article 15 of Decree No. 90/2007/NĐ-CP.

Chapter III

DUTIES OF NOTIFICATION AND REPORTING OF ACTIVITIES OF FOREIGN NON-PRESENT TRADERS IN VIETNAM

Article 11. Notification of Activities

1. After being issued, amended, supplemented, or extended, non-resident traders must publicly announce the contents recorded in their Export and Import Right Registration Certificate on mass media platforms as stipulated in Clause 3, Article 9, Clause 4, Article 12, and Clause 6, Article 13 of Decree No. 90/2007/NĐ-CP.

2. Mass media platforms include national television, radio, online news, and print publications distributed throughout Vietnam.

Article 12. Periodic and Ad-hoc Reporting of Activities

2. Non-resident traders have the responsibility to provide information and reports as required by the Ministry of Industry and Trade when necessary for state management purposes. Information and reports must be sent to the Ministry of Industry and Trade within five working days from the date of receipt of the Ministry's request letter.

3. Other financial reporting systems and statistical reporting systems of non-resident traders shall be implemented in accordance with Vietnamese laws.

Chapter IV

IMPLEMENTING PROVISIONS

1. The Department of Import-Export is responsible for assisting the Minister of Industry and Trade in issuing, reissuing, amending, supplementing, extending, and revoking the Export and Import Right Registration Certificate for non-resident traders in accordance with Clause 1, Article 6 of Decree No. 90/2007/NĐ-CP and the guidance provided in this Circular.

2. The Export and Import Right Registration Certificate issued to non-resident traders will be made in three copies: one copy for the non-resident trader; one copy retained by the Ministry of Industry and Trade; and one copy sent to the General Department of Customs for coordination in management.

3. The E-commerce and Information Technology Department of the Ministry of Industry and Trade is responsible for implementing the construction and operation of software for managing information about non-resident traders and coordinating with the Department of Import-Export to update and publish on the Ministry of Industry and Trade’s website at http://www.moit.gov.vn statistical data and related information during the implementation of state management functions over non-resident traders.

4. The collection rate, collection system, payment, management, and utilization of fees for issuing the Export and Import Right Registration Certificate applicable to foreign non-present traders in Vietnam shall be implemented in accordance with Decision No. 108/2007/QĐ-BTC dated December 26, 2007, of the Minister of Finance concerning the determination of collection rates, collection systems, payments, management, and utilization of fees for issuing export and import right certificates applicable to foreign non-present traders in Vietnam.

Article 14. Effective Date

This Circular takes effect from November 15, 2012.