Note on Setting up a Representative Office in Vietnam

 Setting up a representative office is considered one of the simplest forms of investment in Vietnam.

The representative office will help the foreign trader to lease office, hire people, open bank account, and promote the business activities in Vietnam market. The chief representative if being foreigner will then could apply for work permit and temporary residence card to stay in Vietnam. There is no income tax as the representative office therefore the liability to maintain a representative office is less hassle. When the purpose of setting up representative office in Vietnam has been achieved, the closing down of the business shall be not as challenging as closing down a company.

According to Vietnam laws, representative office is a dependent unit, representing the foreign entity’s interests in Vietnam. Representative office is established by foreign entities to help them liaise, implement research activities, provide information and support them in seeking new partners as well as having understanding of the new market.

The foreign entity has to meet certain conditions before setting up representative office in Vietnam. It has rights and duties in accordance with Vietnam laws.

When preparing the application for license of representative office in Vietnam, the foreign entities have to note the following.

Prepare the application forms

The application forms as issued by Ministry of Industry and Trade. The application must be signed by legal representative of the foreign entity;

Notarize, legalize and authenticate documents

The foreign entity has to prepare and provide business registration certificate, audited financial report, charter, and office lease memorandum of understanding, passport of the legal representatives of the Representative Office in Vietnam. The documents issued in foreign countries have to be notarized, legalized and authenticated (apostille procedures) in accordance with Vietnam laws to be used in Vietnam. If the business registration certificate or alternative documents have expiry date for business entity’s operation, the remaining time must be at least one year;

Who should be the chief representative?

The Chief Representative of the Representative Office in Vietnam must be different from the Director of the foreign entity.

How long does it take?

It would take around 20 business days since application until receiving the business operation registration of representative office

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How to Terminate Representative Office in Vietnam

     Foreign Traders wishing to terminate the operation of representative office in Vietnam need to complete the procedure at Tax authorities, the Provincial Department of Industry and Trade and the procedure to return the seal at the police.

Pursuant to the provisions of the Vietnam laws, the termination of operation of representative offices of foreign traders in Vietnam at the Provincial Department of Industry and Trade shall be conducted as follows:

Preparation of dossiers for termination of operation of representative offices includes:

• Notice of termination of operation of the representative office, made according to the form set by the Ministry of Industry and Trade, signed by the competent representative of the foreign trader.
• List of creditors and unpaid debts, including tax debts and social insurance premiums;
• List of employees and their respective current interests;
• Original License for establishment of representative office.
• Documents evidencing that the representative office has fulfilled all tax and financial obligations to the State of Vietnam

The order and procedures for termination of operation of representative offices at competent agencies shall be as follows:

• The foreign trader submits a dossier for termination of operation of the representative office directly or via post or online (if applicable) to the Provincial Department of Industry and Trade (or the Management Board of Industrial parks, export processing zones, economic zones and hi-tech parks) where the representative office is licensed.
• Within three working days from the date of receipt of the file, the competent authority shall examine and request the supplement if the dossier is incomplete and invalid. Requests for supplementary records are made at most once during the process of processing applications;
• Within a time-limit of five (05) working days from the date of receipt of a complete and valid file, the competent authority shall be responsible to publish on its website the termination of operation of the representative office.
• Foreign traders shall publicly post up the termination of their operation at the representative office.

Foreign traders whose representative offices have terminated of operation shall be responsible for performing contracts, paying debts, including tax debts and settling lawful interests for laborers who have worked at the representative office in accordance with the laws.

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Challenges in Preparing Documents for Representative Office Application

 The representative office (RO) is a popular foreign investment vehicle which investors utilize when wishing to enter the Vietnamese market without committing too much investment. The representative office could help the foreign entity to hire local employee to carry out market research, business promotion.

A foreign company wishes to establish a representative office in Vietnam must submit an application dossier for a license to the Provincial Department of Industry and Trade (DIT).

However, there are cases which the government agencies receiving the application would be different from department of industry and trade depending on the business lines carried out by the foreign entity.

Firstly, the trade service is bound in Vietnam’s Commitment in trade service in WTO but there are no existing specialized legislative documents:

When the trade service which the foreign entity provides does not fall under areas prescribed by specialized legislative documents in Vietnam, the licensing agency shall submit a written request for directions to the relevant ministries for opinions. The foreign entity shall wait for at least 15 working days for receiving a written notice of whether the license for establishment of the representative office is granted or rejected. This process not only extends duration of establishment of representative office but also rises risk of rejection.

Secondly, the trade service is not yet bound in Vietnam’s Commitment:

Where the scope of operation of the representative office is inconsistent with Vietnam’s commitments or the foreign trader is not located in the country or territory being party to treaties to which Vietnam is a signatory, there is an extra process in registration of representative office. The representative office shall be approved by relevant ministers, heads of ministerial agencies for establishment of the representative office.

Thirdly, trade services are supplied in foreign countries, but such does not exist in Vietnam

The foreign entity has to apply codes as following to Vietnam standard industrial classification system or CPC. If the foreign entity can not define a code, it is merely impossible to register the representative office.

In most of the cases, the foreign entity should consult with law firms in Vietnam whom lawyers have expertise in WTO laws, law on investment and experience in working with Vietnam state authorities, to prepare application right at the start and be ready to challenge the authorities when required to protect best interests of the clients.

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Benefits of Representative Offices in Vietnam

 

Following the trend of international economic integration, foreigners have been attracted by the benefits of doing business in Vietnam through setting up representative offices, setting up company, acquiring shares in Vietnam enterprise through M&A activity.

At the initial stage, foreign entity would try to research market, undertake due diligence on its clients, buyers, clients, or other business partners therefore many will be interested in establishing a representative office in Vietnam.

The foundation of representative office of foreign entity in Vietnam is governed under Vietnam Commercial Law 2005 and Decree 07/2016 / ND-CP dated 25 May, 2016.

Advantages of establishment of a representative office:

Establishing a representative office is a tool to research the market. For the first time, foreign enterprises entering the Vietnam market, the primary purpose is understanding the market, undertaking research on clients, or due diligence on their business partners, distributors, monitoring the performance of buyers and being familiar with the Vietnam market. The establishment of representative office in Vietnam turns out to be the most effective option both of cost and time.

The representative office in Vietnam is an effective tool to promote commercial activity, seeking partners, and increasing opportunities to expand business market in Vietnam.

Representative office form in Vietnam has allowed foreign entity to receive benefits such as recruiting Vietnamese employees, foreign employees working in offices whom could apply for work permit in Vietnam, then temporary residence card in Vietnam, opening bank accounts in foreign currencies or Vietnam dong at commercial banks, and to be allowed to use those accounts solely for their operations.

According to the laws of Vietnam, the establishment of representative offices does not require the investor’s capital. Instead, setting up a company in Vietnam, an economic organization requires capital contribution as per business plan, ranging from USD 50 k to million USD. Sometime, if the investment fall under conditional areas, setting up company seems more challenging. This relieves the foreign trader from advancing too much to achieve the purpose of expanding the market before the business plan has been proved to materialize.

Further, the establishment of representative office follows more simple procedures for licensing in Vietnam than establishing entity in Vietnam. Accordingly, the process has been taken less time which is more favorable for foreign traders.

Challenges of the establishment of representative office in Vietnam?

Vietnam law provides that, in order to establish a representative office in Vietnam, foreign traders have to prove the fulfillment of the financial responsibility in their country. In practice, the foreign entity is expected to provide audited financial statements. In some countries, the financial audited report is not available according to laws. The Vietnam Department of Trade and Commerce, which state authority would grand representative office operation certificate would require documents showing the fulfillment of tax liabilities or financial obligations of the last fiscal year, or equivalent documents as proof of existence and operation of the foreign trader issued or certified by competent authorities where such foreign trader is established. This provision may initially be difficult. However, if the foreign trader has been established and operated legally in their country, the implementation of this provision is not a major obstacle.

As a large potential market such a Vietnam, as well as the current rapid reform in administrative procedures, Vietnam Government has been more flexible to encourage foreign traders doing business in Vietnam, hence the establishment of representative offices is an optimal method to consider for market research, trade promotion and a stepping stone to penetrate the Vietnam market successfully.

The commercial law and other business laws in Vietnam are frequently changing toward attracting more quality investment projects into Vietnam. ANT Lawyers in Hanoi, Da Nang and Ho Chi Minh City continue to follow and provide update to its clients for their smooth operation in Vietnam.

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Decree: Amending certain decrees on investment and business requirements, and administrative procedures in the information and communications sector

Amendments to and abrogation of certain articles of the Government’s Decree No. 195/2013/ND-CP dated November 21, 2013 on elaboration and implementation of the Law on publishing

1. Clause 1 Article 7 is amended as follows:

a) Point a Clause 1 is amended as follows:

“a) The application for the license for establishment of representative office shall be made in Vietnamese (if a foreign language document is submitted, it must be translated into Vietnamese and legally notarized) and submitted to the Ministry of Information and Communications. The application includes: The application form for the license; the written certification granted by a foreign competent authority certifying that the publishing house or the publication distribution company (the applicant) lawfully operates in the country where its head office is located; the certified copies or the copies presented with their originals for verification purpose of bachelor’s degree or academic qualifications of higher level, the criminal record and the family register or documents proving the lawful residence in Vietnam of the head of the representative office, issued by competent authorities of Vietnam;"

b) Point b Clause 1 is amended as follows:

“b) Within 20 business days from the receipt of a complete application, the Ministry of Information and Communications shall issue the license for establishment of the representative office to the applicant; in case of refusal, a written response in which reasons for such refusal are indicated must be given to the applicant.

If an application submitted through the Internet or postal service is incomplete or contains incorrect forms of documents, within 03 business days from the receipt of the application, the Ministry of Information and Communications (the Agency of Publication, Print and Release) shall inform and instruct the applicant to modify the application either by telephone, email or fax.

A license for establishment of representative office is valid for 05 years from the date of issue and may be extended provided that each extension shall not exceed 05 years.”

2. Point c Clause 2 Article 7 is amended as follows:

“c) Within 07 business days from the receipt of a complete application, the Ministry of Information and Communications shall re-issue or extend the license for establishment of the representative office; in case of refusal to re-issue or extend the license, a written response in which reasons for such refusal are indicated must be given to the applicant.”

3. Point a Clause 1 Article 8 is amended as follows:

“a) It must have a head office of adequate area meeting relevant regulations on standards of working offices;”

4. Clause 1 Article 9 is amended as follows:

a) Point a Clause 1 is amended as follows:

“a) Before appointing the general director (or director) or the editor-in-chief of a publishing house, the agency in charge of managing such publishing house must submit an application for approval from the Ministry of Information and Communications. The application includes: The application form for approval of the personnel appointment; the resume of the to-be-appointed person; the certified copy or the copy presented with its original for verification purpose of the bachelor’s degree or higher of the to-be-appointed person;”

b) Point c Clause 1 is amended as follows:

“c) Within 15 business days from the receipt of a complete application, the Ministry of Information and Communications shall give or refuse to give a written approval for the appointment, dismissal or discharge of the general director (or director) or the editor-in-chief of a publishing house.”

5. Point b Clause 2 Article 13 is amended as follows:

“b) With respect to documents proving production space: The certified copy or the copy presented with its original for verification purpose of the certificate of land use rights or the contract or any documents proving the land allocation or lease of land, premises or workshop."

6. Clause 2 and Clause 3 Article 14 are amended as follows:

a) Point b Clause 2 is amended as follows:

“b) Within 20 business days from the receipt of a complete application, the Ministry of Information and Communications shall issue the license to import publications to the applicant; in case of refusal, a written response in which reasons for such refusal are indicated must be given to the applicant.”

b) Point b Clause 3 is amended as follows:

“b) Within 07 business days from the receipt of a complete application, the Ministry of Information and Communications shall re-issue the license to import publications to the applicant; in case of refusal to re-issue the license, a written response in which reasons for such refusal are indicated must be given to the applicant.”

7. Article 17 is amended as follows:

a) Point a Clause 1 is amended as follows:

“a) It must have a server located in Vietnam;”

b) Clause 2 is amended as follows:

“2. Requirements regarding technicians in charge of operating and managing the publishing and distribution of e-publications are laid down in Point a Clause 1 and Point a Clause 2 Article 45 of the Law on publishing. To be specific:

They must complete training courses in Information Technology.”

c) Point b Clause 3 is amended as follows:

“b) Technical measures must be adopted to prevent unauthorized access via the Internet;”

8. Point b Clause 2 Article 18 is amended as follows:

“b) Within 15 business days from the receipt of the documentation of registration of e-publication publishing or distribution, the Ministry of Information and Communications shall examine the implementation of the Scheme and give a written certification of registration of e-publication publishing or distribution to the applicant; in case of refusal, a written response in which reasons for refusal are indicated must be given to the applicant;”

9. The following regulations of the Government’s Decree No. 195/2013/ND-CP dated November 21, 2013 on elaboration and implementation of the Law on publishing shall be abrogated:

a) Point c Clause 1 Article 6;

b) Clause 3 Article 8;

c) Points b, c, e Clause 1 Article 17;

d) Point a Clause 3 Article 17;

dd) Clause 5 Article 17.

Source: Thuvienphapluatvn

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