THE GOVERNMENT
——-

SOCIALIST REPUBLIC OF VIET NAM
Independence – Freedom – Happiness
———-

No. 140/2007/ND-CP

Hanoi, September 05, 2007

DECREE

PROVIDING DETAILED REGULATIONS ON THE COMMERCIAL LAW REGARDING CONDITIONS FOR ENGAGING IN LOGISTIC SERVICES BUSINESS, AND LIMITATIONS ON LIABILITY OF LOGISTIC SERVICES BUSINESS ENTITIES

THE GOVERNMENT 

Pursuant to the Law on Organization of the Government dated 25 December 2001;
Pursuant to the Commercial Law dated 14 June 2005;
Having considered the proposal of the Minister of Industry and Trade; 

DECREES: 

Chapter I

GENERAL PROVISIONS 

Article 1 Governing scope
This Decree provides detailed regulations for implementation of the Commercial Law with regard to conditions for engaging in logistic services business and the limitations on liability of business entities engaging in logistic services business.
Article 2 Applicable entities
This Decree applies to business entities engaging in logistic services business and to other organizations and individuals with activities related to logistic services.
Article 3 Interpretation of terms
In this Decree, the following terms shall be construed as follows:
1. Logistic services means the commercial activities stipulated in article 233 of the Commercial Law.
2. Business entity engaging in logistic services business means a business entity who organizes the performance of logistic services for clients by itself conducting such services or by hiring another business entity to conduct one or a number of stages of such services.
3. Foreign business entity engaging in logistic services business means a business entity from any country or territory with which Vietnam has an undertaking in an international treaty regarding opening of the logistic services business market.
4. Limitation on liability means the maximum level at which a business entity engaging in logistic services business is liable to pay compensation to a client for loss and damage arising during the process of organization of the performance of logistic services in accordance with the provisions in this Decree.
Article 4 Classification of logistic services
Logistic services as stipulated in article 233 of the Commercial Law shall be classified as follows:
1. Principal logistic services, comprising:
(a) Services of arranging pickup and loading of goods, including loading goods into containers;
(b) Goods warehousing and storage services, including the business of warehousing in containers and storage for processing raw materials and equipment;
(c) Transportation agency services, including agency activities of conducting customs procedures and preparing plans for unloading goods1;
(d) Other subsidiary services including activities of receiving, archiving and managing information about transportation and storage of goods throughout the entire logistic process; activities being reprocessing of goods returned by clients, reprocessing of goods in storage and of outof-date goods and redistribution of such goods; and activities being leasing out and hire purchase of containers.
2. Logistic services relating to transportation, comprising:
(a) Sea carriage services;
(b) Internal waterways carriage services;
(c) Aviation carriage services;
(d) Rail carriage services;
(dd) Road carriage services;
(e) Pipeline conduit services.
3. Other related logistic services, comprising:
(a) Services being technical checks and analysis;
(b) Post services;
(c) Wholesale commercial services;
(d) Retail commercial services, including activities of managing goods in storage; collecting goods from various sources, assembling and classifying the goods, and redistributing and delivering them;
(e) Other subsidiary transportation services.
Chapter II 

CONDITIONS FOR ENGAGING IN LOGISTIC SERVICES BUSINESS AND LIMITATIONS ON LIABILITY OF BUSINESS ENTITIES ENGAGING IN LOGISTIC SERVICES BUSINESS 

Article 5 Conditions for engaging in logistic services business applicable to principal logistic services Business entities engaging in the principal logistic services stipulated in article 4.1 of this Decree must satisfy all the following conditions:
1. The enterprise must have lawful business registration in accordance with the law of Vietnam.
2. There must be adequate facilities, equipment and working facilities which ensure technical [standards] and safety criteria, and there must be a team of staff who satisfy the requirements.
3. Foreign business entities, in addition to satisfying the conditions stipulated in clause 2 of this article, shall only be permitted to engage in logistic services business when they also satisfy the following specific conditions:
(a) In the case of business in unloading goods, a foreign business entity shall only be permitted to establish a joint venture company in which the capital contribution ratio of the foreign investor does not exceed 50%;
(b) In the case of business in warehousing services, the foreign business entity shall be permitted to establish a joint venture company in which the capital contribution ratio of the foreign investor does not exceed 51%; this restriction shall terminate in year 2014;
(c) In the case of business in transportation agency services, the foreign entity shall be permitted to establish a joint venture company in which the capital contribution ratio of the foreign investor does not exceed 51%, and as from year 2014 the establishment of a joint venture company shall not be restricted in terms of the capital contribution ratio of the foreign investor;
(d) In the case of business in other subsidiary services, the foreign business entity shall be permitted to establish a joint venture company in which the capital contribution ratio of the foreign investor does not exceed 49%; this restriction shall be 51% as from year 2010 and [this restriction] shall terminate in year 2014.
Article 6 Business conditions applicable to entities engaging in logistic services relating to transportation
Any business entity engaging in logistic services relating to transportation as stipulated in article 4.2 of this Decree must satisfy the following conditions:
1. The enterprise must have lawful business registration in accordance with the law of Vietnam.
2. Compliance with the conditions applicable to transportation business as stipulated by the law of Vietnam.
3. Foreign business entities engaging in logistic services business, in addition to satisfying the conditions stipulated in clause 2 of this article, shall only be permitted to engage in logistic services business when they also satisfy the following specific conditions:
(a) In the case of business in maritime transportation services, a foreign business entity shall only be permitted to establish a fleet operating joint venture company as from year 2009 in which the capital contribution ratio of the foreign investor does not exceed 49%; and shall be permitted to establish an international sea transportation services joint venture in which the capital contribution ratio of the foreign investor does not exceed 51%, and this restriction shall terminate in year 2012;
(b) In the case of business in internal waterway transportation services, a foreign business entity shall only be permitted to establish a joint venture company in which the capital contribution ratio of the foreign investor does not exceed 49%;
(c) Aviation transport business services shall be implemented in accordance with the Law on Civil Aviation of Vietnam;
(d) In the case of rail transportation business services, a foreign business entity shall only be permitted to establish a joint venture company in which the capital contribution ratio of the foreign investor may not exceed 49%;
(dd) In the case of business in road transportation services, a foreign business entity shall be permitted to establish a joint venture company in which the capital contribution ratio of the foreign investor does not exceed 49%; and this restriction shall be 51% as from year 2010;
(e) It shall not be permitted to provide pipeline conduit services, except where an international treaty of which the Socialist Republic of Vietnam is a member contains some other provision.
Article 7 Business conditions applicable to entities engaging in other relevant logistic services
Any business entity engaging in the other logistic services stipulated in article 4.3 of this Decree must satisfy all the following conditions:
1. The enterprise must have lawful business registration in accordance with the law of Vietnam.
2. Foreign business entities engaging in logistic services business shall only be permitted to conduct business in [other] logistic services when they satisfy the following specific conditions:
(a) In the case of business in services of technical checks and analysis:
In the case of services provided in order to exercise authority of the Government, they may only be provided in the form of a joint venture after three years or in other forms after five years, as from the date on which the private enterprise is permitted to conduct business in such services.
It shall not be permitted to conduct business in services of acceptance testing of, and issuance of certificates for transportation facilities.
The provision of services of technical checks and analysis shall be restricted [not permitted] in geographical locations as determined by the competent body for reasons of national defence and security.
(b) Business in services being posts, wholesale commercial services and retail commercial services shall be subject to discrete regulations of the Government.
(c) It shall not be permitted to provide other subsidiary transportation services, unless an international treaty of which the Socialist Republic of Vietnam is a member contains some other provision.
Article 8 Limitations on liability
1. The limitations on the liability of any business entity engaging in logistic services business relating to transportation shall be as stipulated by the relevant law on limitations on liability in the transportation sector.
2. The limitation on liability of any business entity engaging in logistic services business not within the scope of clause 1 of this article shall be as agreed by the parties. If the parties do not have any agreement, then the issue shall be regulated as follows:
(a) In a case where a client does not provide prior notice about the value of the goods, then the maximum liability shall be 500 (five hundred) million dong applicable to each claim for compensation;
(b) In a case where a client provided prior notice of the value of the goods and this was verified by the business entity engaging in the logistic services business, then the limitation on liability shall be the entire value of such goods.
3. In a case where a business entity organizes a number of work stages which stipulate different limitations on liability, then the limitation on liability of a work stage shall be the highest limitation of any one work stage.
Chapter III 

STATE ADMINISTRATION OF LOGISTIC SERVICES BUSINESS ACTIVITIES

Article 9 State administration
1. The Ministry of Industry and Trade shall be responsible before the Government for the exercise of State administration of logistic services business activities.
2. The Ministry of Transport, the Ministry of Industry and Trade, and the Ministry of Information and Communication shall, within the scope of their respective duties and powers, be responsible to check and supervise logistic services business activities, including checking and supervising compliance with business conditions and compliance by business entities concerned with the law on logistic services business in the sectors in which administration is delegated to such ministries.
3. The Ministry of Planning and Investment shall be responsible to guide business registration for logistic services in accordance with current regulations.
4. Other ministries, ministerial equivalent bodies and Government bodies shall be responsible to coordinate with the ministries stipulated in clauses 1, 2 and 3 above during the work of State administration of logistic services business activities.
Article 10 Dealing with breaches
Any business entity engaging in logistic services business activities, or any other organization or individual concerned who breaches the provisions of this Decree shall, depending on the nature and seriousness of the breach, be subject to a disciplinary penalty or an administrative penalty or shall be subject to criminal prosecution; and if the offender causes loss and damage, then the offender must pay compensation in accordance with law.
Chapter IV 

IMPLEMENTING PROVISIONS 

Article 11 Transitional provision
Any business entity engaging in logistic services business which received permission from the competent State body to provide such services before the effective date of this Decree shall be permitted to continue such business and shall not be required to re-register.
Article 12 Effectiveness
1. This Decree shall be of full force and effect fifteen (15) days from the date of its publication in the Official Gazette.
2. Ministers, heads of ministerial equivalent bodies and Government bodies and chairmen of people’s committees of provinces and cities under central authority shall be responsible for the implementation of this Decree.
 

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MINISTRIES OF COMMERCE – FINANCE 
——–

THE SOCIALIST REPUBLIC OF VIETNAM
Independence– Freedom – Happiness
—————-

No.: 07/2007/TTLT-BTM-BTC

Hanoi, July 06, 2007

JOINT CIRCULAR

GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES ON SALES PROMOTION AND FAIRS, EXHIBITIONS PROVIDED FOR IN DECREE NO.37/2006/ND-CP DATED APRIL 04, 2006 OF THE GOVERNMENT DETAILING THE COMMERCIAL LAW ON ACTIVITIES OF TRADE PROMOTION

Pursuant to Decree No.29/2004/ND-CP dated January 16, 2004 of the Government regulating functions, tasks, powers and organizational structure of the Ministry of Commerce;
Pursuant to Decree No.77/2003/ND-CP dated July 01, 2003 of the Government regulating functions, tasks, powers and organizational structure of the Ministry of Finance;
Pursuant to Decree No.37/2006/ND-CP dated April 04, 2006 of the government detailing the Commercial Law on activities of trade promotion (hereinafter referred to as Decree No.37/2006/ND-CP);
Ministries Of Commerce – Finance guide the implementation of a number of Articles on activities of sales promotion and fairs, exhibitions provided for in Decree No.37/2006/ND-CP as follows:
I. STATE MANAGEMENT AGENCIES ON TRADE FOR THE ACTIVITIES OF PROMOTION AND FAIRS AND TRADE EXHIBITIONS
1. State management agencies on trade that are competent for the activities of promotion and fairs, trade exhibitions (hereinafter referred to as the state management agencies), include:
a) Ministry of Commerce shall be responsible for handling the registration for sales promotion, registration for organizing fairs and trade exhibitions under its jurisdiction according to provisions of the Commercial Law, Decree No.37/2006/ND-CP and guidance in this Circular;
b) Department of Commerce shall be responsible for handling the notification and registration for sales promotion, registration for organizing fairs and trade exhibitions under its jurisdiction according to provisions of the Commercial Law, Decree No.37/2006/ND-CP and guidance in this Circular.
2. Responsibilities of the state management agencies
a) To publicize the conditions, time, order and procedures of notification and registration for sales promotion, registration for organizing fairs and trade exhibitions;
b) To receive and settle the notification and registration for sales promotion, organizing fairs, and trade exhibitions under its jurisdiction according to provisions of the Commercial Law, Decree No.37/2006/ND-CP and guidance in this Circular;
c) To inspect and monitor the activities of sales promotion, fairs and trade exhibitions under its jurisdiction according to provisions;
d) Other responsibilities as prescribed by law.
II. SALES PROMOTIONS
1. The forms of sales promotion required to notify in writing to the Department of Commerce where the sales promotion is organized include:
a) Giving samples of goods or providing services as samples to customers for trying to use without making payment;
b) Giving goods or providing services to customers free of charge with or without the purchase and sale of goods or services provision;
c) Selling goods or providing services at prices lower than the previous sales price, service provision;
d) Selling goods or providing services together with coupons of goods purchase, service use;
đ) Selling goods or providing services together with slips participating in contest for customers to select the prize winners according to the rules and prizes already announced;
e) Organizing the programs of frequent customers;
g) Organizing for customers to participate in the programs of culture, arts, entertainment, and other events for promotional purposes.
2. Notice of sales promotion
No later than 07 (seven) working days before the sales promotion, traders conducting the forms of sale promotion referred to in clause 1 of this Section shall send written notices (according to Form KM-1 in the Appendix attached to this Circular) to the Department of Commerce where the sale promotions are made. Upon receiving the notification dossiers on the sales promotion, the Department of Commerce records the receipts of dossiers. Receipts of dossiers are made into 02 copies (according to Form KM-4 in the Appendix attached to this Circular), 01 copy is given to trader, 01 copy is archived in the Department of Commerce (not applicable to case that dossier is sent by mail);
3. The forms of sales promotion must be registered with the Department of Commerce (if they are implemented in an area of province or city under central authority), Ministry of Commerce (if they are implemented in the area of from two provinces and cities directly under the Central or more), including:
a) Selling goods or providing services together with the participation in the promotion program of chance;
b) The other forms of promotion as prescribed in Article 17 of Decree No.37/2006/ND-CP.
4. A dossier of registration for sales promotion includes:
a) A written registration for sales promotion (Form K-M2 in Appendix attached to this Circular);
b) Rule of promotion program (Form K-M3 in the Appendix attached to this Circular);
c) Form of lottery ticket for the promotion program with issuance of lottery tickets;
d) Images of promotional goods and goods used for sales promotion;
đ) Form of evidence determining the winning (if any);
e) A copy of the certificate of quality of goods and services promoted and goods and services used for sales promotion in accordance with the law provisions (if any).
In addition to the documents mentioned in points a, b, c, d, đ and e of this clause, trader does not need to present any other additional documents.
5. Receipt of registration dossiers for sales promotion
a) Upon receipt of registration dossiers for sales promotion, the state management agencies record receipt of dossiers. Receipt of dossiers is made in 02 copies (according to Form KM-4 in the Appendix attached to this Circular), 01 copy is given to trader, 01 copy is archived in the state management agency (not applicable to case that dossier is sent by mail);
b) Within 03 (three) working days after receiving the dossier, for the dossier which is incomplete or invalid, the state management agency notifies in writing (according to Form KM-5 in the Appendix attached to this Circular) to trader for complementing and completing dossier. The time limit for handling dossier is taken into account from the time that the State management agency receives full and valid dossier;
c) Traders registering sales promotion may request the State management agencies to explain the requirements of complementing and completing dossier. State management agencies are responsible for replying to the request of traders.
6. Certification, non-certification of the registration for sales promotion
a) Within 07 (seven) working days after receipt of full and valid registration dossier of sales promotion, the state management agency shall consider and certify or not certify in writing (according to Form KM-6 or KM-7 in Appendix attached to this Circular), in case of non-certification, it must state clearly the reason;
b) Where the Ministry of Commerce is the agency certifying the registration for sales promotion, no later than 07 (seven) working days before the promotion, trader shall send written notification to the Department of Commerce where the promotion is implemented together with written certification of the Ministry of Commerce.
7. Amendment and supplementation of the contents of promotion
a). Traders who wish to amend and supplement the contents of the promotional program, they must send written notice or register for amendment and supplementation of the contents of promotional program (according to the Form KM-8 in Appendix attached to this Circular) to state management agency where the notice or registration for sales promotion is implemented;
b). The order and procedures of registration for amendments and supplementation of the contents of promotional program of form required to notify comply with the instructions in clause 2, Section II of this Circular. The order and procedures of registration for amendments and supplementation of the contents of promotional program of form required to register comply with the instructions in clause 5 and 6 of Section II of this Circular;
c). The amendment and supplementation of the contents of promotional program must be ensured compliance with regulations on sales promotion in the Commercial Law and Decree No.37/2006/ND-CP.
8. For the form of promotion with chance nature, when putting evidence to determine the winning into the goods or opening prize promotions with prizes worth 100 million dong or more, the traders must inform the Department of Commerce where the above activities are carried on before 07 (seven) working days for inspection and supervision of the implementation.
9. Termination of promotional programs
In case of termination of the implementation of promotional programs specified in clause 1 of Article 19 of Decree No.37/2006/ND-CP the traders are obliged to publicize to their customers and the state management agencies.
10. Suspension of the implementation of promotional programs
State management agencies suspend the implementation of the whole or part of the promotional program of trader if it is detected committing violation of provisions in Article 20 of Decree No.37/2006/ND-CP (according to Form KM-9 in Appendix attached to this Circular).
11. Handling of the prize without winners of the promotional program with chance nature
a) Within 8 (eight) working days after expiration of award, the trader is responsible for reporting in detail to the State management agency on the prize without winners (according to the Form KM -10 in the Appendix attached to this Circular);
b) Within 7 (seven) working days from receipt of trader’s report, the State management agency inspects, certifies and makes the decision to collect 50% of the value of the award announced without the winners of the promotional program (according to the Form KM-11 in the Appendix together with this Circular);
c) Within 15 (fifteen) working days after receiving the decision to collect of the state management agency, trader shall pay the amount 50% of the value of the award announced without the winners of the promotional program into account of the state management agency that have confirmed registration for sales promotion at the State Treasury;
d) Based on decisions of collection, State Treasury accounts, regulates the revenue as assigned, including the revenue paid by the decision of the Ministry of Trade, shall be the regulated 100% into the central budget, the revenue paid by the decision of the Department of Commerce, shall be the regulated 100% into the local budget and accounted into Chapter 160, type 10, clause 10, Section 062, Sub-section 99 of the State Budget Index;
đ) Accounting and settlement inspection
Trader accounts the paid amount 50% of the value of the award announced without the winners of the promotional program into the price cost of the enterprise. Ending the budget year, the State Treasury informs the agency made decision on the proceeds into the Treasury and regulated the remittance into budget. On that basis, the state management agency of trade synthesizes and settles with the financial management agency at the same level of the amount according to the decision to collect and the proceeds to the state budget.
12. Report of the results of sales promotion implementation
a) Ending the promotional programs, traders must report the results of sales promotion at locality to the state management agencies (according to Form KM-12 in Appendix issued together with this Circular);
b) Where the Ministry of Commerce is the agency certifying the registration for sales promotion, apart from having to report the results of sales promotion implementation at locality to the Ministry of Commerce, traders are responsible for reporting to the local Department of Trade the results of sales promotion implementation in the localities where traders conduct sale promotion.
III. FAIRS AND TRADE EXHIBITIONS
1. Registration for organizing fairs and trade exhibitions
a) The organization of fairs and trade exhibitions in Vietnam or organization to participate in the fairs, trade exhibitions in foreign countries (hereinafter referred to as organizations of fairs and trade exhibitions) must be registered with the state management agencies before October 01 of the year preceding the year of the organization.
b) In case of registration after the deadline under the guidance at point a of this clause, traders, organizations operating related to trade must register before the opening date of fairs, trade exhibitions at least 30 (three twenty) days for fairs and trade exhibitions in Vietnam or the 45 (forty five) days for fairs and trade exhibitions in foreign countries.
2. Dossiers of registration for organization of fairs, trade exhibitions
Dossier of registration for organization of fair, trade exhibition shall comply with the provisions of Article 38 of Decree No.37/2006/ND-CP of which has a written registration for organization of fair, trade exhibition (according to Form HCTL-1 in Appendix attached to this Circular).
3. Receipt of registration dossiers for organization of fairs and trade exhibitions
a) Within 03 (three) working days after receipt of dossier, for the dossier which is incomplete or invalid, the state management agency notifies in writing (form HCTL-2, Appendix attached herewith) trader, organization organizing related to trade for supplementing and completing dossier;
b) Traders and organizations operating related to trade may request the State management agency to explain clearly the contents required to supplement and complete dossier. State management agency is responsible for replying to the request of traders and organizations operating related to trade.
4. Certification, non-certification of the registration for organizing fairs, trade exhibitions
a) Where the registration for organizing fairs, trade exhibitions as guided in point a, clause 1 of this Section, upon receiving complete and valid dossier of registration for organizing fairs, trade exhibitions, the State management agency is responsible for reviewing, certifying or not certifying in writing (according to the Form HCTL-3 or HCTL-4 in the Appendix attached to this Circular) before November 11 of the year preceding the year of the organization, in case of not certifying, it must state clearly the reason;
b) Where the registration for organizing fairs, trade exhibitions as guided in point b, clause 1 of this Section, within 10 (ten) working days after receiving complete and valid dossier of registration, the State management agency shall consider and verify or not verify in writing (according to the Form HCTL-3, HCTL-4 above).
5. Where there are two traders, organizations operating related to trade or more registering for the organization of fairs, trade exhibitions that are the same name, subject, time, and location:
a) Where the registration under the guidance in point a, clause 1 of this Section, the State management agency holds the negotiation to select trader, organization operating related to trade to be held such fair, trade exhibition. Where the negotiation is not reached result, the state management agency shall make certification decision for 01 (a) trader or organization operating related to trade to be held based on grounds specified in clause 4 of Article 34 and clause 4 of Article 36 of Decree No.37/2006/ND-CP;
b) Where the registration under the guidance at point b, clause 1 of this Section, the state management agency shall make certification decision for trader or organization operating related to trade that registered in advance.
6. Change or supplementation of contents of the registration for organizing fairs and trade exhibitions
a). Traders and organizations operating related to trade may change, or supplement contents of the registration for organizing fairs and trade exhibitions which have been certified. Written requests for change, supplementation of contents of the registration for organizing fairs and trade exhibitions (according to the form HCTL-5 in the Appendix attached to this Circular) must be sent to the State management agency before the opening date of the fairs, trade exhibitions at least 30 (thirty) days for fairs and trade exhibitions in Vietnam or the 45 (forty five) days for fairs and exhibitions in foreign countries;
b). The order and procedures for the change or supplementation of contents of the registration for organizing fairs and trade exhibitions comply with the guidance in clause 3, clause 4 of this Section.
c). Within 10 (ten) working days after receiving complete and valid dossier of registration, state management agency shall consider and certify or not certify in writing (according to the Form HCTL-3 or HCTL-4 in the Appendix attached to this Circular), in case of not certifying, it must state clearly the reason.
8. Report of the results of organizing fairs, trade exhibitions
Within 30 (thirty) days after the end of the fair, trade exhibition, trader, organization operating related to trade must send a written report of the organization result to the State management agency (according to the Form HCTL-6 in the Appendix attached to this Circular).
9. Showing of counterfeit goods and goods infringing intellectual property rights to compare with the genuine one
a) Before organizations and individuals display the counterfeit goods, goods infringing intellectual property rights for comparison with genuine goods at fairs and trade exhibitions, they must submit written registration (according to the Form HCTL-7 in Appendix attached to this Circular) to the Department of Commerce (in the case of participating in fairs, trade exhibitions in Vietnam) or the Ministry of Commerce (in the case of participating in fairs, trade exhibitions in the foreign countries);
b) Within 03 (three) working days after receipt of dossier, for the dossier which is incomplete or invalid, the state management agency shall notify in writing (according to the Form HCTL-8 in Appendix attached to this Circular) to organization, individual for supplementing the documents;
c) Within 07 (seven) working days after receiving complete and valid dossier, the state management agency must approve or disapprove the registration (according to the Form HCTL-9 or HCTL-10 in Appendix attached to this Circular), in case of not certifying, it must state clearly the reason;
10. Temporary import for re-export, temporary export for re-import of goods for participation in fairs and trade exhibitions
The temporary import for re-export, temporary export for re-import of goods for participation in fairs and trade exhibitions shall comply with the provisions of the Commercial Law, Decree No.12/2006/ND-CP of January 23, 2006 of the Government detailing the implementation of the Commercial Law regarding to international buying and selling activities of goods and activities ofagent, purchasing, processing and transiting goods with foreign countries and Circular No.04/2006/TT-BTM dated April 06, 2006 guiding a number of contents provided for in Decree No.12/2006/ND-CP and other provisions of concerned law.
IV. IMPLEMENTATION
1. Ministry of Commerce:
a) Department of Trade Promotion receives and processes the registration for sales promotion, registration for organizing fairs and trade exhibitions under the jurisdiction of the Ministry of Commerce and coordinate with functional agency to inspect and monitor the implementation of the provisions of the law of traders, organize the activities related to trade;
b) Department of Market Management shall coordinate with the Trade Promotion Department and related agencies to inspect and supervise the implementation of the traders, organize the activities related to trade and administrative sanctions as prescribed by law for the violations of the law of traders, organizations operating related to trade.
2. Department of Trade receives and settles the notification and registration for sales promotion, registration for organizing fairs and trade exhibitions under the jurisdiction according to provisions of law and inspects, supervises, and handles violations in activities of sales promotion and fairs, trade exhibitions. Department of Commerce shall report on activities of sales promotion and fairs, trade exhibitions in the area as required by the Department of Trade Promotion.
3. This Circular takes effect 15 days after its publication in the Official Gazette. During the implementation, if any difficulties, problems arise, concerned organizations and individuals promptly report to the Ministry of Commerce, the Ministry of Finance for study, amendment and supplement./.
 

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DECREE

DETAILING THE COMMERCIAL LAW REGARDING GOODS PURCHASE AND SALE ACTIVITIES OR GOODS PURCHASE AND SALE RELATED ACTIVITIES OF FOREIGN-INVESTED ENTERPRISES IN VIETNAM

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the June 14, 2005 Commercial Law;
At the proposal of the Minister of Trade,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Governing scope
This Decree details the Commercial Law regarding goods purchase and sale activities or goods purchase and sale related activities of foreign-invested enterprises in Vietnam.
Article 2.- Subjects of application
This Decree applies to foreign-invested enterprises, and organizations and individuals involved in the management of goods purchase and sale activities or goods purchase and sale related activities of foreign-invested enterprises in Vietnam.
Article 3.- Interpretation of terms
In this Decree, the terms below are construed as follows:
1. Goods purchase and sale activities or goods purchase and sale related activities means import, export, distribution and other activities specified in Chapters IV, V and VI of the Commercial Law.
2. Import and export means activities specified in Article 28 of the Commercial Law.
3. Right to export means the right to purchase goods in Vietnam for export, including the right to have one’s name written in the exports declaration in order to carry out, and take responsibility for, export-related procedures. The right to export excludes the right to establish a network for purchasing goods in Vietnam for export, unless otherwise provided for by Vietnamese law or treaties to which the Socialist Republic of Vietnam is a contracting party.
4. Right to import means the right to import goods from foreign countries into Vietnam for sale to traders that have the right to distribute those goods in Vietnam; the right to import includes the right to have one’s name written in the imports declaration in order to carry out, and take responsibility for, import-related procedures. The right to import excludes the right to establish, or participate in, a goods distribution system in Vietnam, unless otherwise provided for by Vietnamese law or treaties to which the Socialist Republic of Vietnam is a contracting party.
5. Distribution means activities of goods whole-sale, retail, purchase and sale agency, and commercial franchise as provided for by Vietnamese law.
6. Right to distribution means the right to directly conduct distribution activities.
7. Wholesale means the sale of goods to traders or other organizations, excluding the sale of goods directly to the end consumer.
8. Retail means the sale of goods directly to the end consumer.
9. Retail establishment means an enterprise-owned unit that retails goods.
Article 4.- Conditions for a foreign-invested enterprise to be granted a permit for dealing in goods purchase and sale activities or goods purchase and sale related activities in Vietnam
1. Conditions for a foreign-invested enterprise to be granted a permit for dealing in goods purchase and sale activities or goods purchase and sale related activities in Vietnam include:
a/ Being an investor from a country or territory which has acceded to a treaty to which the Socialist Republic of Vietnam is a contracting party and under which Vietnam has committed to open its market for goods purchase and sale activities or goods purchase and sale related activities;
b/ Making investment in a form conformable with the roadmap already committed in treaties to which the Socialist Republic of Vietnam is a contracting party and compliant with Vietnamese law;
c/ Dealing in goods or services in accordance with Vietnam’s market-opening commitments and Vietnamese law;
d/ Operating within a scope compliant with Vietnam’s market-opening commitments and Vietnamese law;
e/ Obtaining approval from a competent state agency defined in Article 5 of this Decree.
2. The Minister of Trade shall announce the roadmap already committed in treaties to which the Socialist Republic of Vietnam is a contracting party and the conditions specified in Clause 1 of this Article.
3. For foreign investors not defined at Point a, Clause 1 of this Article, before a competent agency grants a business permit, the Minister of Trade shall, on a case-by-case basis, consider and approve goods purchase and sale activities or goods purchase and sale related activities.
Article 5.- Competence to grant a permit for dealing in goods purchase and sale activities or goods purchase and sale related activities and a permit for setting up a retail establishment
1. Provincial-level People’s Committees shall grant permits for dealing in goods purchase and sale activities or goods purchase and sale related activities (below referred to as business permits for short) to foreign-invested enterprises already granted investment certificates or investment licenses (collectively referred to as investment certificates) after obtaining the Trade Ministry’s written approval.
2. A foreign investor that invests in goods purchase and sale activities or goods purchase and sale related activities in Vietnam for the first time shall submit the dossier for carrying out investment procedures to the investment-managing state agency. This agency shall consult the Ministry of Trade and grant investment certificates for goods purchase and sale activities or goods purchase and sale related activities only after obtaining the Trade Ministry’s written approval. In this case, the investment certificate is as valid as the business permit. Investment procedures shall be carried out in accordance with the Investment Law.
3. When a foreign investor invests in import or export activities only or when a foreign-invested enterprise applies for additional import or export activities only but not for goods distribution or goods purchase and sale activities or goods purchase and sale related activities, the investment-managing state agency shall, based on the market-opening roadmap committed in treaties to which the Socialist Republic of Vietnam is a contracting party, grant or supplement the investment certificate without having to obtain the Trade Ministry’s approval.
4. A foreign-invested enterprise which already has the right to distribution may set up the first retail establishment without having to carry out the procedures for application for a permit up for setting up a retail establishment according to the provisions of this Decree. The provincial-level People’s Committee shall, under the Trade Ministry’s guidance, decide on the setting up of other retail establishments, in addition to the first one, according to the order and procedures specified in this Decree.
Article 6.- Observance of relevant provisions of law
1. Apart from the rights and obligations defined in this Decree, foreign-invested enterprises shall also observe the provisions of the Enterprise Law, the Investment Law and relevant laws.
2. When activities specified in Chapters IV, V and VI of the Commercial Law are governed by another Decree, the provisions of that Decree prevail.
3. When carrying out the procedures for grant, re-grant or modification of business permits or permits for setting up retail establishments, foreign-invested enterprises shall pay fees according to the Finance Ministry’s regulations.
4. When necessary, foreign-invested enterprises are obliged to report or supply documents on, or explain issues related to their activities at the request of competent state management agencies according to Vietnamese law.
Chapter II

PROCEDURES FOR GRANT OF A BUSINESS PERMIT

Article 7.- Dossier of application for a business permit
1. A written application for a business permit, made according to a form set by the Trade Ministry.
2. A written explanation about the satisfaction of conditions set at Points a, b, c and d, Clause 1, Article 4 of this Decree.
3. Planned goods purchase and sale activities and goods purchase and sale related activities of the enterprise.
4. A copy of the investment certificate.
Article 8.- Process of granting a business permit
1. An enterprise shall submit 03 sets of dossier, including 01 original, to the People’s Committee of the province or centrally run city where the enterprise is headquartered.
2. Within 03 working days after receiving the dossier, the dossier-receiving agency shall verify the validity of the dossier and send that dossier to the Trade Ministry for comments. If the dossier is invalid, the dossier-receiving agency shall notify in writing the investor of such invalidity for modification of the dossier.
3. Within 15 working days after receiving the dossier, the Trade Ministry shall send its written comments on issues falling within its management competence.
4. Within 15 working days after receiving the Trade Ministry’s comments, the provincial-level People’s Committee shall decide to grant a business permit.
If refusing to grant a business permit, the dossier-receiving agency shall notify in writing the enterprise of such refusal and clearly state the reasons therefor.
5. Within 07 working days after granting a business permit, the dossier-receiving agency shall send copies of that permit to the Trade Ministry and the People’s Committee of the province or centrally run city where the enterprise is headquartered.
Article 9.- Contents and valid duration of a business permit
1. Contents of a business permit cover:
a/ Name and address of the head office of the enterprise;
b/ Goods purchase and sale activities or goods purchase and sale related activities as stipulated in Article 12 of this Decree;
c/ Validity duration of the business permit.
2. For cases defined in Article 5 of this Decree, the validity duration of the business permit shall be the same as the investment project’s operation duration written in the investment certificate.
Article 10.- Modification of a business permit
1. A foreign-invested enterprise shall carry out the procedures for modification of the business permit at the business permit-granting agency if wishing to modify one of the contents specified at Point or b, Clause 1, Article 9 of this Decree.
2. A dossier of application for the modification of a business permit comprises:
a/ A written application for modification of the business permit, made according to a form set by the Trade Ministry;
b/ A copy of the granted business permit.
3. Within 10 working days after receiving the enterprise’s complete and valid dossier as stipulated in Clause 2 of this Article, the business permit-granting agency shall modify the business permit if such application for modification complies with Vietnamese law and treaties to which the Socialist Republic of Vietnam is a contracting party. If refusing to modify the business permit, the business permit-granting agency shall notify in writing the enterprise of such refusal and clearly state the reasons therefor.
4. When receiving the modified business permit, the enterprise shall turn in the original of the old business permit to the business permit-granting agency.
Article 11.- Re-grant of a permit for dealing in goods purchase and sale activities or goods purchase and sale related activities
1. A business permit shall be re-granted when it is lost, torn, damaged, burnt, or otherwise destroyed.
2. When a business permit is lost, the enterprise shall report such loss to the Public Security agency of the locality where the permit is lost and to the business permit-granting agency and announce the loss on the mass media for three consecutive times. After 30 days from the date of the first-time announcement, the enterprise shall send an official letter requesting the business permit-granting agency to re-grant the permit.
3. A dossier of application for the re-grant of a business permit comprises:
a/ A written application for re-grant of the business permit, made according to a form set by the Trade Ministry;
b/ The Public Security agency’s certification of the declaration of the loss of the business permit; a written explanation about the reasons why the permit is torn, damaged, burnt, or otherwise destroyed.
4. Within 07 working days after receiving the complete and valid dossier, the business permit-granting agency shall re-grant the business permit.
Article 12.- Goods purchase and sale activities or goods purchase and sale related activities
1. Goods purchase and sale activities or goods purchase and sale related activities of a foreign-invested enterprise must be specified in the business permit, specifically:
a/ Goods purchase and sale activities or goods purchase and sale related activities permitted to be carried out;
b/ Types of goods banned from trading with regard to each activity specified at Point a, Clause 1 of this Article;
c/ Goods purchase and sale related services permitted to be provided.
2. A foreign-invested enterprise may carry out only activities indicated in its business permit.
3. An enterprise may deal in goods or services which are by law subject to conditional business only when it fully meets the conditions provided for by Vietnamese law.
Chapter III

PROCEDURES FOR GRANT OF A PERMIT FOR SETTING UP A RETAIL ESTABLISHMENT

Article 13.- Dossier of application for setting up a retail establishment
1. A written application for setting up a retail establishment in Vietnam, made according to a form set by the Trade Ministry, indicating:
a/ Name and address of the head office of the enterprise;
b/ Name(s) and address(es) of the retail establishment(s) already set up;
c/ Name and address of the retail establishment to be set up;
d/ Activities of the retail establishment;
e/ Full name, place of residence, identity card or passport number, or other lawful personal identification papers of the head of retail establishment;
f/ Full name and signature of the representative at law of the enterprise.
2. A copy of the business permit.
Article 14.- Process of granting a permit for setting up a retail establishment
1. An enterprise shall submit 03 sets of dossier, including 01 original, to the People’s Committee of the province or centrally run city where the retail establishment is planned to be located.
2. Within 03 working days after receiving the dossier, the dossier-receiving agency shall verify the validity of the dossier and send that dossier to the Trade Ministry for comments. If the dossier is invalid, the dossier-receiving agency shall notify in writing the investor of such invalidity for modification of the dossier.
3. Within 15 working days after receiving the dossier, the Trade Ministry shall send its written comments on issues falling within its management competence.
4. Within 15 working days after receiving the Trade Ministry’s comments, the provincial-level People’s Committee shall decide to grant the permit for setting up a retail establishment, When necessary, this time limit may be extended for no more than 30 days.
If refusing to grant a permit for setting up a retail establishment, the dossier-receiving agency shall notify in writing enterprise of such refusal and clearly state the reasons therefor.
5. Within 07 working days after granting a permit for setting up a retail establishment, the dossier-receiving agency shall send copies of such permit to the Trade Ministry and the People’s Committee of the province or centrally run city where the enterprise is headquartered.
Article 15.- Contents and validity duration of a permit for setting up a retail establishment
1. Contents of a permit for setting up a retail establishment cover:
a/ Name and address of the head office of the enterprise;
b/ Name and address of the retail establishment;
c/ Activities of the retail establishment;
d/ Full name, place of residence, identity card or passport number, or other lawful personal identification papers of the head of the retail establishment;
e/ Validity duration of the permit.
2. For the case defined in Clause 4, Article 5 of this Decree, the validity duration of a permit for setting up a retail establishment shall be the same as that of the business permit.
Article 16.- Modification of a permit for setting up a retail establishment
1. Within 10 days after deciding to change any of the contents specified at Point a, b, c or d, Clause 1 of Article 15, a foreign-invested enterprise shall carry out the procedures for modification of a permit for setting up a retail establishment.
2. A dossier of application for the modification of a permit for setting up a retail establishment comprises:
a/ A written application for the modification of a permit for setting up a retail establishment, made according to a form set by the Trade Ministry, clearly indicating the to be-modified contents;
b/ A copy of the granted permit.
3. Within 10 working days after receiving the complete and valid dossier as stipulated in Clause 2 of this Article, the agency granting a permit for setting up a retail establishment shall modify that permit.
4. When receiving the modified permit, the foreign-invested enterprise shall turn in the original of the old permit to the permit-granting agency.
Article 17.- Re-grant of a permit for setting up a retail establishment
1. A foreign-invested enterprise shall be re-granted a permit for setting up a retail establishment when that permit is lost, torn, damaged, burnt, or otherwise destroyed.
2. The dossier and procedures for re-grant of a permit for setting up a retail establishment shall be the same as those for re-grant of a business permit as specified in Article 11 of this Decree.
Chapter IV

IMPLEMENTATION PROVISIONS

Article 18.- Handling of violations
1. Depending on the nature and severity of their violations, foreign-invested enterprises shall be administratively handled according to the law on handling of administrative violations. If committing serious violations, they shall have their business permits or permits for setting up retail establishments revoked.
2. When there are enough criminal elements in an act of violation, the violator shall be examined for penal liability according to law.
Article 19.- Implementation effect
This Decree takes effect 15 days after its publication in “CONG BAO.”
Article 20.- Organization of implementation
1. The Ministry of Trade shall guide the implementation of this Decree.
2. The Ministry of Finance shall specify the levels and management of fees for grant, re-grant or modification of business permits or permits for setting up retail establishments.
3. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and presidents of provincial/municipal People’s Committees shall implement this Decree.
 

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