Decree No. 45/2000/NĐ-CP on Representative Offices and Branches of Foreign Merchants and Foreign Tourism Enterprises in Vietnam

DECREE OF THE GOVERNMENT

Regulations on Representative Offices and Branches of Foreign Trading Enterprises and Foreign Tourism Enterprises in Vietnam

and of foreign tourism enterprises in Vietnam

 _______________________

 

THE GOVERNMENT

Pursuant to the Government Organization Law dated September 30, 1992;

Pursuant to the Law on Commerce dated May 10, 1997;

Based on the Tourism Ordinance dated February 8, 1999;

At the proposal of the Minister of Trade and the General Director of the Tourism General Department,

DECISION:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree stipulates on Representative Offices and Branches of foreign trading enterprises (as provided for in the Commercial Law) and foreign tourism enterprises (as provided for in the Tourism Ordinance) in Vietnam. Hereinafter, "Representative Office of foreign trading enterprises and foreign tourism enterprises in Vietnam" shall be referred to as "Representative Office"; "Branch of foreign trading enterprises and foreign tourism enterprises in Vietnam" shall be referred to as "Branch".

Article 2. Representative Office, Branch

1. A Representative Office is a dependent unit of a foreign trading enterprise or a foreign tourism enterprise established under Vietnamese law to seek and promote business and tourism opportunities but not directly engage in profitable business activities. A foreign trading enterprise or a foreign tourism enterprise may establish one or more Representative Offices in Vietnam; however, it is not allowed to establish a Branch of a Representative Office in Vietnam.

2. A Branch is a dependent unit of a foreign trading enterprise or a foreign tourism enterprise established under Vietnamese law to conduct business and tourism activities in Vietnam with the aim of direct profit-making. A foreign trading enterprise or a foreign tourism enterprise may establish one Branch in Vietnam to trade goods and services listed in the "Catalogue of Goods and Services that Foreign Trading Enterprise Branches and Foreign Tourism Enterprise Branches are Permitted to Operate in Vietnam" issued together with this Decree; it is not allowed to establish a Representative Office of a Branch in Vietnam.

3. The Head of the Representative Office and the Director of the Branch may be either foreigners or Vietnamese nationals.

4. The Representative Office, Branch, and persons working at the Representative Office and Branch are protected by the Vietnamese State in their lawful rights and interests and have the obligation to comply with Vietnamese law; they are not entitled to the preferential exemption regime granted to Diplomatic Missions, Consular Posts of Foreign Countries, and Representative Offices of International Intergovernmental Organizations in Vietnam.

Article 3. Responsibilities of foreign trading enterprises, foreign tourism enterprises, and Representative Offices, Branches

1. Foreign trading enterprises and foreign tourism enterprises with Representative Offices and Branches in Vietnam are responsible before Vietnamese law for all activities of their Representative Offices and Branches in Vietnam.

2. Representative Offices and Branches must comply with Vietnamese law in all their activities and directly exercise their rights and fulfill their obligations as prescribed by Vietnamese law.

Article 4. Competent Authority for Issuing Licenses

1. The Ministry of Trade is responsible for issuing, amending, supplementing, and revoking licenses for establishing Branches operating in the field of trade.

2. The Tourism General Department is responsible for issuing, amending, supplementing, and revoking licenses for establishing Representative Offices and Branches operating in the field of tourism.

3. The Ministry of Trade is responsible for issuing, amending, supplementing, and revoking licenses for establishing Branches operating in both the fields of trade and tourism, after obtaining the agreement of the Tourism General Department.

4. The People's Committee of the province or centrally governed city (hereinafter referred to as the Provincial People's Committee), where a foreign trading enterprise proposes to establish a Representative Office, is responsible for issuing, amending, supplementing, and revoking licenses for establishing Representative Offices operating in the field of trade.

5. The Provincial People's Committee, where a foreign trading enterprise or a foreign tourism enterprise proposes to establish a Representative Office operating in both the fields of trade and tourism, is responsible for issuing, amending, supplementing, and revoking licenses for establishing Representative Offices operating in both fields after obtaining the agreement of the Tourism General Department.

Chapter II

ISSUANCE, AMENDMENT, AND SUPPLEMENTATION OF LICENSES FOR ESTABLISHING REPRESENTATIVE OFFICES AND BRANCHES

Article 5. Conditions for Issuing a License to Establish a Representative Office or Branch

1. A foreign trader or foreign travel enterprise shall be granted a license to establish a representative office in Vietnam when it has a lawful business registration under the laws of its home country.

2. A foreign trader or foreign travel enterprise shall be granted a license to establish a branch in Vietnam when it meets the following conditions:

a) It has a lawful business registration under the laws of its home country;

b) It has been operating for at least five years since the date of business registration;

c) It engages in goods and services listed in the "Catalogue of Goods and Services that Foreign Trader Branches and Foreign Travel Enterprises are Permitted to Operate in Vietnam," issued together with this Decree and reviewed and supplemented periodically.

Article 6. Documents for Requesting a License to Establish a Representative Office or Branch

The documents for requesting a license to establish a representative office or branch include:

1. An application from a foreign trader or foreign travel enterprise requesting a license to establish a representative office or branch (in accordance with the form prescribed by the Ministry of Commerce in coordination with the General Administration of Tourism).

2. A certified copy of the business registration certificate of the foreign trader or foreign travel enterprise, confirmed by the competent authority abroad, and a Vietnamese translation of the business registration certificate of the foreign trader or foreign travel enterprise, certified by a notary public in Vietnam or a diplomatic mission or consular post of Vietnam abroad.

Article 7. Issuance of a License to Establish a Representative Office or Branch

1. A foreign trader or foreign travel enterprise shall submit the application documents for a license to establish a representative office or branch to the licensing authority as stipulated in Article 4 of this Decree.

2. Within fifteen days from the date of receipt of complete and valid documents, the licensing authority shall issue a license to establish a representative office or branch to the foreign trader and send a copy of the license to relevant agencies as follows:

a) In cases where the Ministry of Commerce issues the license, a copy of the license shall be sent to the Department of Commerce or the Department of Commerce and Tourism, tax authorities, and provincial statistical offices where the branch is located; if the license is for a branch operating in the fields of commerce and tourism, a copy of the license shall also be sent to the General Administration of Tourism.

b) In cases where the General Administration of Tourism issues the license, a copy of the license shall be sent to the Department of Tourism or the Department of Commerce and Tourism, tax authorities, and provincial statistical offices where the representative office or branch is located.

c) In cases where the People's Committee of a province issues the license, a copy of the license shall be sent to the Ministry of Commerce, tax authorities, and provincial statistical offices where the representative office is located; if the license is for a representative office operating in the fields of commerce and tourism, a copy of the license shall also be sent to the General Administration of Tourism.

3. In cases where the submitted documents are incomplete or invalid, within three working days from the date of receipt of the documents, the licensing authority must notify the foreign trader or foreign travel enterprise in writing to supplement and complete the documents.

4. The activities of the representative office or branch shall be specifically recorded in the license.

Article 8. Notification of Representative Office and Branch Activities

Within forty-five days from the date of issuance of the License, the Representative Office and Branch must commence operations officially and submit a written notification to the Licensing Authority regarding the location of the office, the number of Vietnamese employees, and the number of foreign employees working at the Representative Office and Branch.

Article 9. Modification of License Content

When there is a need to modify one, several, or all of the following contents in the License for establishing a Representative Office and Branch, the foreign trader or foreign travel enterprise must submit a written request to the Licensing Authority to amend and supplement the License:

1. Changing the name, nationality of the foreign trader or foreign travel enterprise, or the name of the Representative Office and Branch;

2. Increasing the number of foreign employees working at the Representative Office and Branch;

3. Modifying the scope of activities of the Representative Office and Branch.

4. Changing the location of the Representative Office and Branch's headquarters. Within ten days from the date of receipt of the request from the foreign trader or foreign travel enterprise, the Licensing Authority shall be responsible for issuing a new amended and supplemented License to the foreign trader or foreign travel enterprise and sending a copy of this License to the agencies receiving copies of the License for establishing the Representative Office and Branch as stipulated in Clause 2, Article 7 of this Decree. In the case of changing the location of the Representative Office operating in the trade or trade and tourism sector from one centrally-administered province or municipality to another, the foreign trader must follow the procedures for obtaining a new License for establishing a Representative Office as prescribed in Articles 6 and 7 of this Decree.

Article 10. Fees for Issuance, Amendment, and Supplement of Licenses

1. The foreign trader or foreign travel enterprise must pay fees for the issuance, amendment, and supplementation of Licenses.

2. The Ministry of Finance shall take the lead and coordinate with the Ministry of Trade and the General Administration of Tourism to specify the fee levels, management, and utilization of the fees prescribed in Clause 1 of this Article.

Article 11. Termination of Representative Office and Branch Operations

1. The Representative Office and Branch shall cease operations in the following cases:

a) At the request of the foreign trader or foreign travel enterprise;

b) When the foreign trader or foreign travel enterprise ceases operations;

c) When there is a decision by competent state authorities to revoke or cancel the License according to Vietnamese law.

2. In the case of termination of operations as provided in points a and b of Clause 1 of this Article, the foreign trader or foreign travel enterprise must submit a written notice of the cessation of operations of the Representative Office and Branch to the Licensing Authority within thirty days before the cessation of operations of the Representative Office and Branch and return the License to the Licensing Authority. Within seven days, the Licensing Authority shall be responsible for notifying the cessation of operations of the Representative Office and Branch to the agencies receiving copies of the License for establishing the Representative Office and Branch as stipulated in Clause 2, Article 7 of this Decree.

3. In the case of termination of operations as provided in point c of Clause 1 of this Article, the Licensing Authority shall be responsible for sending the decision on revocation or cancellation of the License for establishing the Representative Office and Branch to the foreign trader or foreign travel enterprise at least thirty days before the Representative Office and Branch is required to cease operations and send a copy of this decision to the agencies receiving copies of the License for establishing the Representative Office and Branch as stipulated in Clause 2, Article 7 of this Decree.

Article 12. Obligations of foreign traders, foreign travel enterprises, and Representative Offices and Branches terminating operations

Prior to the termination of operations of Representative Offices and Branches in Vietnam, foreign traders, foreign travel enterprises, and Representative Offices and Branches shall settle all debts and other obligations with the State, organizations, and individuals related in Vietnam. The People's Committee at the provincial level shall be responsible for monitoring, supervising, and urging the implementation of this provision for Representative Offices and Branches in their locality.

Chapter III

CONTENT OF ACTIVITIES, RIGHTS AND OBLIGATIONS OF REPRESENTATIVE OFFICES AND BRANCHES

Article 13. Content of activities of Representative Offices and Branches

1. Content of activities of Representative Offices.

a) Promoting the establishment of economic, trade, and tourism cooperation projects in Vietnam;

b) Seeking and promoting opportunities for buying and selling goods and providing commercial and tourism services in Vietnam;

c) Monitoring and urging the implementation of contracts signed by foreign traders and foreign travel enterprises that they represent.

2. Content of activities of Branches. The content of activities of Branches is specifically defined in the License for Establishing Branches in accordance with the content of activities of foreign traders and foreign travel enterprises within the scope of the "List of Goods and Services Foreign Trader Branches and Foreign Travel Enterprise Branches are Permitted to Operate in Vietnam" issued together with this Decree.

Article 14. Rights and obligations of Representative Offices and persons working at Representative Offices

Representative Offices and persons working at Representative Offices shall implement the rights and obligations stipulated in the Commercial Law, Tourism Ordinance, and the following specific provisions:

1. Representative Offices may operate according to the specific contents recorded in the License for Establishment.

3. Persons working at Representative Offices must pay taxes in accordance with Vietnamese laws.

4. Representative Offices must report annually once about their activities in the previous year to the issuing authority before the last working day of January of the following year. In cases where necessary, upon written request from competent authorities in accordance with Vietnamese laws, Representative Offices have the obligation to report, provide documents, or explain issues related to their activities.

Article 15. Rights and obligations of Branches and persons working at Branches.

Branches and persons working at Branches shall implement the rights and obligations stipulated in the Commercial Law, Tourism Ordinance, and the following specific provisions:

1. Branches may operate according to the contents recorded in the License.

2. Persons working at Branches must pay taxes in accordance with Vietnamese laws.

3. Branches must comply with accounting regulations as prescribed by Vietnamese laws and may only apply other generally accepted accounting principles with the approval of the Ministry of Finance. The financial year of Branches runs from January 1st and ends on December 31st each year.

4. Annually, before the last working day of March of the following year, Branches must submit reports on their activities in the previous year and audited financial statements confirmed by Vietnamese auditing agencies or independent auditing agencies permitted to operate in Vietnam to the issuing authority. In cases where necessary, upon written request from competent authorities in accordance with Vietnamese laws, Branches have the obligation to report, provide documents, or explain issues related to their activities.

Chapter IV

RESPONSIBILITIES OF STATE MANAGEMENT AUTHORITIES FOR THE OPERATIONS OF REPRESENTATIVE OFFICES AND BRANCHES

Article 16. Responsibilities of the Ministry of Commerce

1. To take the lead and coordinate with the General Department of Tourism in drafting and submitting to competent authorities for issuance or issuing within their jurisdiction normative legal documents on Representative Offices and Branches;

2. To issue, amend, supplement, or revoke Licenses for Establishing Branches in accordance with Clause 1 and Clause 3 of Article 4 of this Decree.

3. To inspect and supervise state management work concerning the operations of Representative Offices and Branches operating in the field of commerce nationwide.

4. To take the lead and coordinate with relevant ministries, sectors, and localities to inspect and supervise Representative Offices and Branches operating in the field of commerce when deemed necessary or upon the proposal of ministries, sectors, and localities.

5. To handle violations within their jurisdiction.

Article 17. Responsibilities of the Tourism General Department

1. Coordinate with the Ministry of Commerce to draft and submit to competent authorities for issuance, or issue within its authority, legal normative documents on Representative Offices and Branches.

2. Issue, amend, supplement, and revoke Licenses in accordance with Clause 2, Article 4 of this Decree.

3. Inspect and supervise the State management work concerning the activities of Representative Offices and Branches operating in the tourism sector nationwide.

4. Take the lead and coordinate with relevant Ministries, sectors, and localities to inspect and supervise Representative Offices and Branches operating in the tourism sector when deemed necessary or upon request from Ministries, sectors, and localities.

5. Coordinate with the Ministry of Commerce to inspect and supervise Branches operating in both the trade and tourism sectors.

6. Handle violations within its authority.

Article 18. Responsibilities of Ministries, agencies at the ministerial level, and government agencies

1. Coordinate with the Ministry of Commerce, the Tourism General Department, and the provincial People's Committee where the Representative Office or Branch is located to resolve issues related to the activities of Representative Offices and Branches under their respective management.

2. Participate with the Ministry of Commerce, the Tourism General Department, and the provincial People's Committee in inspecting and supervising the activities of Representative Offices and Branches under their respective management.

Article 19. Responsibilities of Provincial People's Committees

1. Implement State management over the activities of Representative Offices and Branches within their jurisdiction according to their authority.

2. Issue, amend, supplement, and revoke Licenses for the establishment of Representative Offices operating in the trade and trade-tourism sectors in accordance with Clauses 4 and 5, Article 4 of this Decree within their jurisdiction.

3. Organize inspections and supervision of the activities of Representative Offices and Branches within their jurisdiction according to their authority.

4. Coordinate with the Ministry of Commerce and the Tourism General Department to inspect and supervise the activities of Representative Offices and Branches within their jurisdiction.

5. To handle violations within their jurisdiction.

Chapter V

HANDLING VIOLATIONS

Article 20. Handling Violations by Representative Offices and Branches, and Persons Working Therein

1. If Representative Offices and Branches violate provisions of this Decree, they shall be subject to administrative penalties in accordance with Vietnamese law.

2. If persons working in Representative Offices and Branches violate provisions of this Decree, depending on the nature and severity of the violation, they may be subject to administrative penalties or criminal prosecution in accordance with Vietnamese law.

Article 21. Handling Violations by Civil Servants

When civil servants perform their duties and violate provisions of this Decree, depending on the nature and severity of the violation, they may be subject to disciplinary action or criminal prosecution in accordance with Vietnamese law.

Chapter VI IMPLEMENTATION PROVISIONS

Article 22. Implementation Provisions

1. This Decree takes effect from October 1, 2000, and replaces Decision No. 82-CP dated August 2, 1994, promulgating the Regulations on Establishment and Operation of Representative Offices of Foreign Economic Organizations in Vietnam.

2. Representative Offices established before the effective date of this Decree continue to operate in accordance with this Decree. Within thirty days from the effective date of this Decree, Representative Offices established before the effective date of this Decree must send a notification letter to the issuing authority specified in Article 4 of this Decree regarding the name of the Trader, the name of the Representative Office, the location of the office, and the main business activities of the Representative Office.

3. The Prime Minister will consider and decide on the continuation of operations for foreign traders' Branches established before the effective date of this Decree that engage in goods and services not included in the "List of Goods and Services Permitted for Foreign Traders to Operate in Vietnam" issued together with this Decree.

4. The Ministry of Commerce leads and coordinates with the Tourism General Department to guide the implementation of this Decree.

5. Ministers, heads of agencies at the ministerial level, heads of government agencies, and Chairmen of provincial People's Committees directly responsible for implementing this Decree.

 

LIST OF GOODS AND SERVICES

FOREIGN TRADERS' BRANCHES PERMITTED TO OPERATE IN VIETNAM

(Issued together with Decision No. 45/2000/NĐ-CP dated September 6, 2000 of the Government)

 

I. Goods purchased in Vietnam for export:

1.Handicrafts;

2.Processed agricultural products and agricultural products (excluding rice and coffee);

3.Vegetables and processed vegetables;

4.Consumer goods;

5.Beef, poultry meat, and processed food.

II. Goods imported for sale in the Vietnamese market.

When foreign traders' Branches have foreign currency earned from exporting goods listed in Section I of this List, they may import the following goods for sale in the Vietnamese market provided they obtain permission from the Ministry of Commerce and the import value does not exceed the export value:

1.Machinery and equipment for mining, processing agricultural products, and seafood;

2.Raw materials for producing human medicines and veterinary drugs;

3.Raw materials for producing fertilizers and pesticides.