Decree No. 92/1998/ND-CP On the Practice of Legal Consultation by Foreign Law Firm Organizations in Vietnam

DECREE

REGARDING THE PRACTICE OF LEGAL CONSULTATION BY FOREIGN LAW FIRMS IN VIETNAM

abroad

____________

THE GOVERNMENT

Pursuant to the Government Organization Law dated September 30, 1992;
AT THE PROPOSAL OF THE MINISTER OF JUSTICE,

DECREE:

PART I

GENERAL PROVISIONS

Article 1. FOREIGN LAW FIRMS THAT SATISFY THE CONDITIONS SET OUT IN THIS DECREE MAY BE PERMITTED TO PRACTICE LEGAL CONSULTATION IN VIETNAM.

Article 2. THE VIETNAMESE GOVERNMENT ENSURES FAIR AND ADEQUATE TREATMENT FOR FOREIGN LAW FIRMS PRACTICING LEGAL CONSULTATION IN VIETNAM IN ACCORDANCE WITH VIETNAMESE LAW.

Article 3. THE LEGAL ASSETS OF FOREIGN LAW FIRMS PRACTICING LEGAL CONSULTATION IN VIETNAM SHALL NOT BE NATIONALIZED OR CONFISCATED THROUGH ADMINISTRATIVE MEASURES.

Article 4. FOREIGN ORGANIZATIONS AND INDIVIDUALS SHALL NOT ENGAGE IN THE PRACTICE OF LEGAL CONSULTATION IN VIETNAM IN ANY FORM WITHOUT PERMISSION FROM THE VIETNAMESE MINISTRY OF JUSTICE AS PROVIDED FOR IN THIS DECREE.

Article 5. FOREIGN LAW FIRMS AND FOREIGN ATTORNEYS PRACTICING LEGAL CONSULTATION IN VIETNAM MUST RESPECT VIETNAM'S SOVEREIGNTY AND INDEPENDENCE AND COMPLY WITH VIETNAMESE LAW.

Chapter II

REQUIREMENTS FOR PRACTICE, PRACTICE ORGANIZATION FORMS, AND LICENSE ISSUANCE PROCEDURES

Article 6. FOREIGN LAW FIRMS APPLYING FOR PERMISSION TO PRACTICE LEGAL CONSULTATION IN VIETNAM MUST SATISFY THE FOLLOWING CONDITIONS:

1. ESTABLISHED AND OPERATING LEGALLY IN THE COUNTRY OF WHICH THE FOREIGN LAW FIRM IS A NATIONAL;

2. HAVE FOREIGN CUSTOMERS ENGAGED IN INVESTMENT AND BUSINESS ACTIVITIES IN VIETNAM;

3. HAVE A GOOD REPUTATION IN LEGAL CONSULTATION PRACTICE;

4. HAVE A POSITIVE ATTITUDE TOWARDS THE VIETNAMESE STATE;

5. HAVE AN OPERATIONAL PLAN AND COMMIT TO PERFORM THEIR OBLIGATIONS AS PROVIDED FOR IN THIS DECREE AND OTHER VIETNAMESE LAWS.

6. HAVE NECESSARY MATERIAL RESOURCES FOR LEGAL CONSULTATION ACTIVITIES.

Article 7. FOREIGN LAW FIRMS SATISFYING THE CONDITIONS SET OUT IN ARTICLE 6 OF THIS DECREE MAY ESTABLISH BRANCHES IN VIETNAM.

EACH FOREIGN LAW FIRM MAY ESTABLISH UP TO TWO BRANCHES IN VIETNAM.

FOREIGN LAW FIRMS ARE RESPONSIBLE FOR THE ACTIVITIES OF THEIR BRANCHES UNDER VIETNAMESE LAW.

FOREIGN LAW FIRMS SHALL APPOINT ONE OF THEIR ATTORNEYS AS THE BRANCH MANAGER. THE BRANCH MANAGER IS THE PERSON IN CHARGE OF MANAGEMENT, OPERATION, AND RESPONSIBILITY FOR THE ORGANIZATION AND ACTIVITIES OF THE BRANCH IN VIETNAM.

Article 8. FOREIGN ATTORNEYS APPLYING TO PRACTICE IN THE BRANCHES OF FOREIGN LAW FIRMS IN VIETNAM MUST SATISFY THE FOLLOWING CONDITIONS:

1. HAVE A LICENSE FOR LEGAL CONSULTATION PRACTICE ISSUED BY THE AUTHORIZED BODY OF THEIR HOME COUNTRY;

2. HAVE A POSITIVE ATTITUDE TOWARDS THE VIETNAMESE STATE;

3. NOT BE A PERSON WHO IS CURRENTLY BEING PROSECUTED FOR CRIMINAL RESPONSIBILITY, A PERSON WHO IS CURRENTLY SERVING A SENTENCE, OR A PERSON WHO HAS NOT YET HAD THEIR RECORD ERASED.

IN ADDITION TO THE CONDITIONS SET OUT IN SUBARTICLES 1, 2, AND 3 OF THIS ARTICLE, THE BRANCH MANAGER OF FOREIGN LAW FIRMS IN VIETNAM MUST HAVE AT LEAST FIVE YEARS OF EXPERIENCE IN LEGAL CONSULTATION PRACTICE.

Article 9. THE OPERATING PERIOD OF THE BRANCHES OF FOREIGN LAW FIRMS IN VIETNAM IS FIVE YEARS, COUNTING FROM THE DATE OF LICENSE SIGNING AND CAN BE EXTENDED. EACH EXTENSION SHALL NOT EXCEED FIVE YEARS.

Article 10. FOREIGN LAW FIRMS WISHING TO ESTABLISH BRANCHES IN VIETNAM MUST SUBMIT APPLICATIONS FOR PERMISSION. THE APPLICATION FOR BRANCH ESTABLISHMENT MUST INCLUDE THE FOLLOWING MAIN CONTENTS:

1. FULL NAME, NATIONALITY, AND HEADQUARTER ADDRESS OF THE FOREIGN LAW FIRM;

2. NAME OF THE BRANCH;

3. CONTENT OF ACTIVITIES AND FIELD OF LEGAL CONSULTATION PRACTICE;

4. OPERATING PERIOD;

5. LOCATION WHERE THE BRANCH HEADQUARTERS IS PLANNED TO BE LOCATED;

6. NAME AND SURNAME OF THE FOREIGN ATTORNEY APPOINTED BY THE FOREIGN LAW FIRM TO MANAGE THE BRANCH.

Article 11. ATTACHED TO THE APPLICATION FOR BRANCH ESTABLISHMENT MUST BE THE FOLLOWING DOCUMENTS:

1. COPIES OF THE CHARTER OR DOCUMENTS PROVING THE LEGAL ESTABLISHMENT AND OPERATION OF THE FOREIGN LAW FIRM;

2. INTRODUCTION OF THE ACTIVITIES OF THE FOREIGN LAW FIRM;

3. FINANCIAL REPORT OF THE FOREIGN LAW FIRM FOR THE TWO MOST RECENT YEARS;

4. LIST AND SUMMARIES OF PROFESSIONAL AND CRIMINAL RECORDS (IF ANY), COPIES OF PRACTICE LICENSES OF FOREIGN ATTORNEYS WORKING IN THE BRANCH;

5. DECISION APPOINTING FOREIGN ATTORNEYS AS BRANCH MANAGERS;

6. BRANCH OPERATIONAL PLAN;

7. LIST OF FOREIGN CUSTOMERS OF THE FOREIGN LAW FIRM ENGAGED IN INVESTMENT AND BUSINESS IN VIETNAM.

Article 12. THE APPLICATION FOR PERMISSION MUST BE WRITTEN IN VIETNAMESE. ATTACHED DOCUMENTS PREPARED AND CERTIFIED ABROAD MUST BE LEGALIZED BY DIPLOMATIC SERVICES; IF IN A FOREIGN LANGUAGE, THEY MUST BE TRANSLATED INTO VIETNAMESE AND THE TRANSLATION MUST BE CERTIFIED BY A VIETNAMESE NOTARY OR A VIETNAMESE DIPLOMATIC OR CONSULAR MISSION ABROAD.

THE FOLLOWING DOCUMENTS MUST BE CERTIFIED BY THE AUTHORIZED BODY OF THE COUNTRY OF WHICH THE FOREIGN LAW FIRM IS A NATIONAL:

1. COPIES OF THE CHARTER OR DOCUMENTS PROVING THE LEGAL ESTABLISHMENT AND OPERATION OF THE FOREIGN LAW FIRM;

2. COPIES OF FOREIGN ATTORNEYS' PRACTICE LICENSES;

3. DECISION APPOINTING FOREIGN ATTORNEYS AS BRANCH MANAGERS.

Article 13. THE APPLICATION FOR BRANCH ESTABLISHMENT OF FOREIGN LAW FIRMS AND ATTACHED DOCUMENTS MUST BE SUBMITTED TO THE MINISTRY OF JUSTICE. WITHIN SIXTY DAYS FROM THE DATE OF RECEIVING COMPLETE AND VALID APPLICATIONS AND FEES, THE MINISTRY OF JUSTICE WILL REVIEW THE APPLICATIONS, SEEK ADVICE FROM RELEVANT AUTHORITIES, AND ISSUE OR DENY THE LICENSE.

THE LICENSE SHALL BE ISSUED IN THREE COPIES: ONE COPY FOR THE FOREIGN LAW FIRM, ONE COPY SENT TO THE PEOPLE'S COMMITTEE OF THE PROVINCE OR CITY DIRECTLY UNDER THE CENTRAL GOVERNMENT WHERE THE FOREIGN LAW FIRM'S BRANCH HEADQUARTERS IS LOCATED, AND ONE COPY RETAINED BY THE MINISTRY OF JUSTICE.

The license becomes effective from the date of signature.

In case of refusal to issue the license, the Ministry of Justice must notify in writing and specify the reasons.

Article 14. WITHIN SIXTY DAYS FROM THE DATE OF LICENSE ISSUANCE, THE FOREIGN LAW FIRM'S BRANCH MUST REGISTER ITS PRACTICE WITH THE DEPARTMENT OF JUSTICE OF THE PROVINCE OR CITY DIRECTLY UNDER THE CENTRAL GOVERNMENT WHERE THE BRANCH HEADQUARTERS IS LOCATED. IF THE BRANCH FAILS TO REGISTER WITHIN SIXTY DAYS, THE LICENSE WILL BE INVALID, EXCEPT IN CASES OF GENUINE REASONS APPROVED BY THE VIETNAMESE MINISTRY OF JUSTICE.

WHEN REGISTERING FOR PRACTICE, THE FOREIGN LAW FIRM'S BRANCH MUST PRESENT THE BRANCH ESTABLISHMENT LICENSE AND CONFIRMATION OF THE BRANCH HEADQUARTERS.

WITHIN FIFTEEN DAYS FROM THE DATE OF RECEIVING COMPLETE AND VALID APPLICATIONS, THE DEPARTMENT OF JUSTICE MUST ISSUE A PRACTICE REGISTRATION LICENSE FOR THE FOREIGN LAW FIRM'S BRANCH. THE FOREIGN LAW FIRM'S BRANCH SHALL ONLY BE ALLOWED TO OPERATE FROM THE DATE IT RECEIVES THE PRACTICE REGISTRATION LICENSE.

Article 15. WITHIN FIFTEEN DAYS FROM THE DATE OF RECEIVING THE PRACTICE REGISTRATION LICENSE, THE FOREIGN LAW FIRM'S BRANCH MUST ANNOUNCE ITS BRANCH ESTABLISHMENT IN LOCAL OR NATIONAL NEWSPAPERS IN VIETNAM FOR FIVE CONSECUTIVE ISSUES.

Article 16. A branch of a foreign law firm that wishes to change any of the following contents of the License: the name of the Branch, the office address, the Branch Manager, the list of lawyers, the scope of legal advisory services must submit an application to the Ministry of Justice and can only make changes upon receiving approval from the Ministry of Justice.

Within thirty days from the date the document approving the change in the License becomes effective, the branch of the foreign law firm must register the change with the Department of Justice of the province or centrally governed city where the Branch's office is located.

Article 17. If a branch of a foreign law firm wishes to extend its operation, it must submit an extension request to the Ministry of Justice at least sixty days before the expiration of the current operation period.

Trong thời hạn 30 ngày, kể từ ngày nhận được đơn xin gia hạn, Bộ Tư pháp quyết định việc gia hạn; nếu không đồng ý gia hạn Bộ Tư pháp phải trả lời bằng văn bản và nêu rõ lý do.

Trong thời hạn 30 ngày, kể từ ngày có quyết định gia hạn hoạt động, chi nhánh của tổ chức luật sư nước ngoài phải đăng ký việc gia hạn tại Sở Tư pháp tỉnh, thành phố trực thuộc Trung ương, nơi đặt trụ sở của Chi nhánh và đăng báo theo quy định tại Điều 15 của Nghị định này.

Article 18. Khi nộp đơn xin phép đặt chi nhánh, xin gia hạn hoạt động, thay đổi nội dung Giấy phép, tổ chức luật sư nước ngoài phải nộp một khoản lệ phí do Bộ Tài chính cùng Bộ Tư pháp quy định.

Chapter III

SCOPE OF ACTIVITY, RIGHTS AND OBLIGATIONS OF THE BRANCH OF FOREIGN LAW FIRMS, FOREIGN LAWYERS

Article 19. The branch of a foreign law firm (hereinafter referred to as the branch) may only practice according to the content and field specified in the License.

Article 20. Foreign lawyers of the Branch may provide advice on foreign laws and international laws in the fields of business, investment, and trade; they may not provide advice on Vietnamese laws; they may not participate in litigation as defense counsel or representatives for clients before Vietnamese courts.

Article 21. The Branch may enter into a cooperation agreement for legal advice with a Vietnamese legal service organization to receive opinions on Vietnamese laws and provide opinions on foreign laws and international laws to the Vietnamese legal service organization.

The cooperation agreement for legal advice is a document signed between the Branch and a Vietnamese legal service organization.

The cooperation agreement for legal advice must include the following main contents: methods of cooperation, method of calculating remuneration, rights, obligations, and responsibilities of each party; relationships between the parties and their clients.

The Branch shall send a copy of the cooperation agreement for legal advice to the Ministry of Justice and the Department of Justice of the province or centrally governed city where the Branch's office is located.

Article 22. The Branch may receive remuneration based on agreements with clients depending on the complexity of the case, time, and reasonable expenses for providing legal advice.

The receipt of remuneration from legal advisory activities of the Branch must be carried out in Vietnam.

Article 23. The Branch must comply with accounting and statistical regulations under Vietnamese law regarding accounting and statistics; open accounts in foreign currency and Vietnamese currency at Vietnamese banks, joint venture banks, or branches of foreign banks permitted to operate in Vietnam, and conduct all receipts and payments through these accounts.

Article 24. The Branch may enter into employment contracts with Vietnamese employees; may hire foreigners who are not lawyers to work for the Branch in accordance with Vietnamese labor law.

The rights and obligations of Vietnamese employees and foreign employees working under contracts in the Branch are specifically recorded in the contract in accordance with Vietnamese labor law.

The Branch may not hire Vietnamese lawyers to work at the Branch.

Article 25. The Branch is permitted to import necessary equipment for the Branch's operations in Vietnam in accordance with Vietnamese law.

Article 26. The Branch and foreign lawyers of the Branch may transfer income from legal advisory activities abroad in accordance with Vietnamese law.

Article 27. The Branch and foreign lawyers of the Branch must strictly comply with Vietnam's foreign exchange management regulations.

Article 28. The Branch must have at least one foreign lawyer working regularly at the Branch in Vietnam.

Article 29. The Branch may accept Vietnamese citizens with a bachelor's degree in law to intern in legal advisory services at the Branch.

Interns in legal advisory services at the Branch may not advise clients.

The rights, obligations, and internship period of interns in legal advisory services at the Branch are agreed upon by the Branch and the intern and recorded in the employment contract in accordance with Vietnamese labor law and this Decree.

The Branch must notify the list of interns in legal advisory services at the Branch to the Department of Justice of the province or centrally governed city where the Branch's office is located.

Article 30. The Branch must bear responsibility for compensating material losses caused by the fault of the Branch's lawyers to clients.

Article 31. The Branch has the obligation to purchase professional liability insurance for its lawyers practicing in Vietnam.

Article 32. Lawyers of the Branch must provide legal advice in a truthful and objective manner.

Article 33. The Branch and foreign lawyers of the Branch have the obligation to pay taxes to the Vietnamese State in accordance with Vietnamese law.

Article 34. The Branch must report to the Ministry of Justice, the Department of Justice of the province or centrally governed city where the Branch's office is located, in writing every six months and annually on the organization and activities of the Branch; in cases of necessity, reports must be made according to the requirements of the Ministry of Justice and relevant authorities as stipulated by law.

Article 35.

1. Expiration of the operation period specified in the License without renewal or renewal denial;

2. Voluntary cessation of operations;

3. Revocation of the right to use the License.

4. The foreign law firm authorized to establish the Branch has ceased operations in the country where the foreign law firm holds nationality.

In the case of voluntarily ceasing operations, the branch must report in writing to the Ministry of Justice, the Department of Justice of the province or centrally governed municipality where the branch's headquarters is located, sixty days prior to the expected cessation date.

Within ninety days from the cessation date, the branch must return the leased premises and working equipment, settle all outstanding debts with organizations and individuals, resolve all issues related to the cessation of operations, and submit a written report to the Ministry of Justice and relevant state agencies authorized to do so.

Chapter IV

MANAGEMENT OF FOREIGN LAW FIRMS' LEGAL CONSULTATION PRACTICE IN VIETNAM

Article 36. The Ministry of Justice manages the practice of foreign law firms' legal consultation in Vietnam and has the following tasks and powers:

1. Drafting and submitting to competent authorities for issuance, or issuing within its authority, legal normative documents on the practice of foreign law firms' legal consultation in Vietnam;

2. Guiding foreign law firms to complete procedures for permission to establish branches in Vietnam;

3. Issuing, extending, and changing the content of branch establishment permits;

4. Providing guidance, inspection, and supervision regarding the organization and activities of branches and foreign lawyers;

5. Taking the lead in resolving issues related to the practice of foreign law firms' legal consultation in Vietnam;

6. Handling violations according to Article 42 of this Decree.

Article 37. The People's Committee of the province or centrally governed municipality where the branch's headquarters is located manages the practice of foreign law firms' legal consultation in Vietnam and has the following tasks and powers:

1. Inspecting the organization and activities of the branch;

2. Handling violations according to Article 43 of this Decree;

3. Proposing relevant state authorities to examine and resolve issues concerning the organization and activities of the branch.

Article 38. The Department of Justice of the province or centrally governed municipality where the branch's headquarters is located has the following tasks and powers:

1. Implementing registration for practice, changes to permit content, extension of activity, monitoring the acceptance of probationary legal consultants, Vietnamese staff, and foreign staff of the branch;

2. Monitoring the probationary practice of legal consultants at the branch;

3. Carrying out other management activities related to the branch's legal consultation practice according to the guidance and direction of the Ministry of Justice and the People's Committee of the province or centrally governed municipality where the branch's headquarters is located;

4. Reporting periodically every six months and annually to the Ministry of Justice and the People's Committee of the province or centrally governed municipality about the organizational and operational situation of the branch within the assigned scope of management.

Chapter V

HANDLING VIOLATIONS

Article 39. If a branch of a foreign law firm violates the provisions of this Decree, it will be subject to the following penalties depending on the severity of the violation:

1. Warning or a fine of between five million and twenty million Vietnamese dong for one of the following acts:

a) Not having professional liability insurance for lawyers practicing legal consultation in Vietnam;

b) Using workers in the branch contrary to the provisions of this Decree and Vietnamese labor laws;

c) Not reporting or reporting inaccurately on the organization and activities of the branch as required;

d) Not implementing registration and publication as prescribed in Articles 15, 16, and 17 of this Decree;

đ) Delaying payment, returning leased premises, and returning leased working equipment upon cessation of operations;

e) Altering, defacing the branch establishment permit;

g) Renting or lending the permit;

h) Not having a headquarters, not having a signboard, or using a signboard contrary to legal regulations.

2. A fine of between twenty million and sixty million Vietnamese dong for one of the following acts:

a) Changing the location of the headquarters from one province/city directly under the central government to another without approval;

b) Changing the name of the branch without approval;

c) Changing the Branch Manager or lawyer list without approval;

d) Creating difficulties or hindrances when authorized state agencies conduct inspections or audits;

đ) Temporarily suspending or terminating contracts without notice;

e) Violating accounting and statistical regulations;

g) Opening and using accounts contrary to regulations.

3. A fine of over sixty million to one hundred million Vietnamese dong for one of the following acts:

a) Practicing legal consultation when the branch establishment permit in Vietnam has expired without renewal or approval;

b) Practicing legal consultation while the right to use the branch establishment permit in Vietnam has been suspended;

c) Using foreign lawyers in the branch without permission;

d) Practicing legal consultation outside the scope and fields specified in the permit.

For branches that violate the provisions of Clause 1 and Clause 2 of this Article with aggravating circumstances, they will be fined at the highest level within the range and may also have their right to use the branch establishment permit in Vietnam suspended.

For branches that violate the provisions of Clause 3 of this Article with aggravating circumstances, they will be fined one hundred million Vietnamese dong and may also have their right to use the branch establishment permit in Vietnam suspended.

Article 40. Foreign organizations or individuals practicing legal consultation in Vietnam in any form without permission as stipulated in this Decree shall be ordered to cease practice, fined one hundred million Vietnamese dong, and have profits from providing legal consultation confiscated.

Article 41. Foreign lawyers who violate the provisions of this Decree shall be subject to warnings, suspension of practice for a period, prohibition from practicing legal consultation in Vietnam, or criminal prosecution according to Vietnamese law, depending on the severity of the violation.

Article 42. The Ministry of Justice may apply the measures of suspending practice for a period, prohibiting practice of legal consultation in Vietnam, and revoking the right to use the branch establishment permit of foreign law firms based on the proposal of the People's Committee of the province or centrally governed municipality.

Article 43. The People's Committee of the province or centrally governed city where the Branch is located has the authority to issue a warning or impose a fine of up to 100,000,000 VND for violations committed by organizations or individuals as stipulated in this Decree.

In addition to the forms of handling violations prescribed in Clause 1 of this Article, the People's Committee of the province or centrally governed city may also propose the Ministry of Justice to revoke the Branch Establishment License for a limited or unlimited period.

Article 44. Vietnamese civil servants who violate the provisions of this Decree while performing their duties shall be subject to disciplinary action or criminal prosecution depending on the severity of the violation.

Vietnamese citizens who commit violations of the provisions of this Decree shall be subject to administrative penalties or criminal prosecution according to the law based on the severity of the violation.

Article 45. Individuals subject to administrative penalties or disciplinary actions have the right to appeal such decisions to competent state agencies as provided by law.

Chapter VI

IMPLEMENTING PROVISIONS

Article 46. This Decree also applies to the practice of Legal Consultation in Vietnam by Vietnamese lawyers residing abroad and law firms established by them outside Vietnam.

Article 47. This Decree takes effect fifteen days from the date of signature and replaces Decree No. 42/CP dated July 8, 1995 issued by the Government regarding the regulations on the practice of legal consultation by foreign law firms in Vietnam.

Previous regulations concerning the practice of legal consultation by foreign law firms in Vietnam that conflict with this Decree are hereby abolished.

Article 48. Ministers, Heads of ministerial-level agencies, and Chairpersons of provincial and centrally-administered city People's Committees are responsible for enforcing this Decree.