Construction Operation License Instead of Contractor’s Permits for Foreign Contractor in Vietnam

  

The foreign contractors are only permitted to carry out construction activities in Vietnam so long as being granted construction operation license by Ministry of Construction as per the Construction Law.

EPC Contractors have increasingly been interested to learn the requirements of licenses and permits to operate in Vietnam. It is advised that the construction law firms in Vietnam with lawyers specializing in construction area to assist the foreign contractors to understand the legal frameworks, and requirements of foreign contractors before and after taking on construction projects in Vietnam after bidding result.

The regulations and procedures are promulgated in Decree No. 59/2015/NĐ-CP on management of construction investment projects and Circular No.14/2016/TT-BXD guiding on licensing construction activities and management of foreign construction contractors in Vietnam.

Investment in construction activities has been growingly rapidly. In order to meet the tender conditions and take part in construction activities in Vietnam, foreign contractors shall follow the regulations in Vietnam and obtain proper license during the preparation and the execution of the construction of the project.

Prior to construction operation license, foreign constructors have experienced another form of permit named contractor’s permits for foreign contractors in Vietnam. These are two concepts however the process of registration and document requirements are not so different.

There has been an effort to harmonize and reduce differences and conflicts arisen in many fields of laws regulating the mentioned subject and the new provisions of the Law on Bidding, Construction Law and the Investment Law to be issued in 2014 which establish a stable legal framework for the implementation of foreign contractor’s bidding and construction activities in Vietnam. This changes does not differentiate which position the foreign contractors are appointed from the lead contractor, the main contractor, contractor to subcontractor consortium. Unlike domestic contractors, foreign contractors must be granted construction operation license for each awarded contract. The amendment from the contractor’s permits for foreign contractor contribute to the unity of the same concept in different legal instruments regulating the license procedure of foreign contractors operating within the territory of Vietnam, and limit the unnecessary overlaps, difficulties to law interpretation and application of legal entities.

We shouldn’t forget to mention that the amendment of the foreign contractor’s construction operation license is to increase the relevance between the name and nature of the licensed activities of foreign contractors in construction operation. One of the initial conditions to a foreign contractor to be licensed is when the contractor has won a bid or been selected to be sub-contractor of an investment project. Therefore, the terms construction operation license shall demonstrate the role of the contractor in the construction projects they have been participated in.

The new construction operation license for foreign contractor is expected to be easier to relate to when foreign contractor take part in construction project in Vietnam. This would attract more foreign contractors to undertake construction projects in Vietnam to bring in the technology equipment, as well as the management skills to Vietnam.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

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Draft and Review Contracts – A Lawyer’s View

  

In Vietnam, certain type of contracts has to follow forms requested by laws as such client is recommended to seek help from professional contract lawyers in Vietnam to help draft or review.

Contract is an agreement enforced by law. In Vietnam, contract is a civil transaction which parties enter into voluntarily, each of whom intends to create, change, or terminate one or more rights or obligations between them according to Vietnam Civil Code. Contract plays an important roles in business transaction. Written contract provide individuals and businesses a legal document reflecting agreement, expectation and mechanism to resolve potential disagreement or disputes.

The lawyers in Vietnam drafting or reviewing contracts under Vietnam laws will need to initially review the legal resources in relevant to the transactions, research related documents and the parties involved to provide legal opinions, make suggestions and propose an optimal solution to the client for negotiation and contract finalization.

Basic terms and conditions of the contracts being rights and obligations of parties to the contracts, and other terms in regard to duration, quality, payment, dispute handling procedures, applicable law and/or jurisdiction, confidentiality, force majeure, intellectual property clauses…among others have to be carefully taken into considerations.

Further, a contract should ensure the following points to be covered:

Use right legal terms or terminology;

Foresee the future scenarios;

Describe the specific matters;

Clearly mention obligations;

Obtain a balance between parties involved.

There are specific contracts in Vietnam for various transactions being:

Joint venture contract;

Share purchase contract;

Sales contract;

Business cooperation contract;

Licensing contract;

Investment contract;

Labour contract;

Lease contract;

Distribution contract;

Construction contract;

Prenuptial agreement.

Each business transaction is different as such a contract is not a compilation of standard terms and conditions. Professional contract lawyers in Vietnam would consider the purpose of the contract, transaction type, significance of the deal, industry, Vietnam legal requirements and expectation of the client to prepare a legally enforceable contract for the client, to avoid misunderstanding and protect the client against legal disputes.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Law firm in Hanoi, Law firm in Ho Chi Minh and Law firm in Danang.

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How Foreigners Could Apply for Residence Permits to Stay in Vietnam from 2022?

In the current process of industrialization and international integration, it is common for foreigners to reside and work in Vietnam permanently or temporarily. In order to legally reside in Vietnam, a foreigner must be eligible to be granted a permanent residence card or a temporary residence card in accordance with Vietnam immigration law.

Temporary residence card is a document issued by an immigration management agency or a competent agency of the Ministry of Foreign Affairs to a foreigner who is allowed to reside in Vietnam for a definite time and has a valid temporary residence card visa replacement. Subjects granted temporary residence cards in Vietnam include: (i) Foreigners who are members of diplomatic missions, consular offices, representative offices of international organizations of the United Nations, inter-governmental organizations the government in Vietnam and their spouses, children under 18 years of age, and domestic servants who accompany them for their respective terms; (ii) Foreigners enter with visas with symbols LV1, LV2, LS, DT1, DT2, DT3, NN1, NN2, DH, PV1, LD1, LD2, TT. Depending on each person who is granted a temporary residence card in Vietnam, the duration of the temporary residence card is different.

Foreigners who are eligible to be granted temporary residence cards in Vietnam according to the two subjects mentioned above must be sponsored and applied for residence card in Vietnam by the agencies, organizations, individuals at the Immigration Department or the Immigration Department Police Department of the province, centrally run city where the agency or organization sponsoring is headquartered or where the sponsored party resides.

It is very challenging to apply for the permanent residence card in Vietnam. The permanent residence is issued by the immigration authority to foreigners who are allowed to reside indefinitely in Vietnam and is valid in lieu of a visa. Foreigners who are considered for permanent residence in Vietnam include: (i) Foreigners who have made meritorious, contributions to the cause of construction and defense of the Vietnamese fatherland are awarded medals or titles by the Vietnamese government state honor; (ii) Foreigners who are scientists, experts temporarily residing in Vietnam; (iii) The foreigner is guaranteed by father, mother, wife, husband, child who are Vietnamese citizens who are permanently residing in Vietnam; (iv) Stateless people who have temporarily resided continuously in Vietnam from 2000 or earlier. At the same time, the following conditions must be met: (i) Having a lawful place of residence and a stable income to ensure life in Vietnam; (ii) If a scientist, expert is temporarily residing in Vietnam, must be requested by a Minister, Deputy Minister of a ministerial-level agency, a government-attached agency in charge of state management in that professional field, (iii) If sponsored by father, mother, wife, husband, child who is a Vietnamese citizens who are permanently residing in Vietnam, the duration of temporary residence in Vietnam for a foreigner applying for permanent residence shall be determined as follows: Foreigners who have temporarily resided in Vietnam for 03 consecutive years or more are determined on the basis of the entry verification stamp, the exit verification stamp issued at the border gate with a total temporary stay in Vietnam from 03 years or more in the last 4 years from the date of applying for permanent residence.

To save time and hassles, it is suggested to consult with lawyers in Hanoi, or Da Nang or Ho Chi Minh City on immigration matters.

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Change of Headquarter of Da Nang Immigration Department

  

As of August 2018, according to the project for rearranging the administrative function of the Government and the Ministry of Public Security, Immigration Department of Da Nang has been merged into Immigration Department of Hanoi. Therefore, the procedures related to entry, exit of Vietnamese citizens and foreigners such as issuing visa, exempting visa, temporary residence card, permanent residence in Da Nang shall be implemented in Immigration Department of Hanoi.

Relating to the dossier and procedures carried out at the Immigration Department of Da Nang such as issuing passport, temporary residence card, permanent residence, the application shall be submitted to Immigration Department of Da Nang. Thereafter, this agency shall transfer such dossier to Immigration Department of Hanoi for approval. Finally, the results shall be returned to Da Nang.

For most of immigration procedures which used to be implemented in Immigration Department of Da Nang, such as issuing visa, the applicant shall submit dossier directly to Immigration Department of Hanoi. The change could possibly add up processing time, and inconvenience if there is requirement for re-submission, amendment and supplement.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

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Trading Conditions on Medical Device in Viet Nam

 

Medical device includes device related to human health, therefore, the business of medical device in the conditional business line in accordance with the law of Vietnam. Medical device is defined as kinds of device, tools, materials for implanting activities, reagents and in vitro calibration solutions, software which are used separately or in association with each other according to the instruction of their owners for human use for the purpose of diagnostic, prevention, supervision, treatment and elimination the illness or to making up for pains.

For medical device trading purpose in Vietnam, first of all, the enterprise should classify medical device. Medical device circulated in Vietnam will be classified based on the level of potential risks associated with the technical design and manufacture of such medical device.

Pursuant to Decree No.36/2016/ND-CP on medical device management, medical device shall be classified into the following 2 groups which are divided into 4 types as follows:

– Type 1 comprises Type A medical device which is medical device with low level of risks.

– Type 2 comprises Type B, C and D medical device, where

+ Type B medical device is medical device with lower average level of risks;

+ Type C medical device is medical device with upper average level of risks;

+ Type D medical device is medical device with high level of risks.

In case medical device can be classified into two or more levels of risk, the classification by the highest risk level of such medical device shall be applied. The classification of medical device must be conducted by qualified organizations as provided by law. In addition, the law of Vietnam recognizes the results of classification of medical device made by competent regulatory body in other countries such as Korea, Japan, … on the basis of international treaties or international arrangements to which Vietnam is a party or of a country which adopts a medical device classification system similar to that adopted by Vietnam.

After classifying medical device, the enterprise shall declare applicable standards for Type A medical device or issue certificate of free-sale registration for Type B, C, D medical device. This procedure makes sure that medical device which the enterprise has trading requirements, is allowed to be distributed in Vietnam.

Finally, with the exception of medical device of type A, in order to directly sell medical device to consumers, the enterprise needs to ensure the staffing requirements as well as the material facility requirements in accordance with the law, for instance:

Trading premise must have technically qualified staffs to perform the installation and use instructions suitable to the medical device which the establishment buys and sells, including at least one qualified technical staff specialized in technical or medical or pharmaceutical medical or technical colleges of medical device or higher or college or higher degree, whose specialized training is appropriate to the type of medical device that the establishment purchase.

Trading premise needs to prepare the warehouse which has area in accordance with the type and the quantity of the medical device to be stored. The warehouse should be airy, dry, clean, separated from sources of pollution and satisfied with other storing requirement device according to its manual. In addition, trading premise shall have suitable transportation vehicles for delivering of medical devices from trading premise to received place. In case there are no storage facilities or transport means, a contract with an establishment satisfying requirements for storage facilities and transport of medical device shall be concluded

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Law firm in Hanoi, law firm in Ho Chi Minh and Law firm in Danang.

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Enterprise establishment service in Vietnam

 

ANT Lawyers provides enterprise establishment consulting service for domestic and foreign customers as the following services:

To consult to establish Joint Stock Company;

To consult to establish One member Limited liability company;

To consult to establish Limited liability Company with Two or more members;

To consult to establish Partnership company;

To consult to establish Private enterprises;

To consult to establish Sole trader;

To consult to establish foreign invested company;

To consult to establish the parent company, corporations.

Customers procedures established in the ANT Lawyers will enjoy some preferential services such as:

1. Contents of enterprise establishment consulting service:

To consult legal regulation related to the establishment, operation and management of enterprises;

To consult to set up personnel structure of the company;

To consult to select types of enterprises;

To consult to choose the name of company (lookup and select the appropriate name as the request of customers);

To consult about the head office of the enterprise;

To consult on capital, legal capital, investment capital;

To consult on business lines (lines requires legal capital , professional certification or other conditions);

To draft legal dossiers for setting up the company (Request for business registration, charter, founders list and other documents as prescribed by law);

To consult for business on tax issues, financial obligations after the enterprise have been established and the process of production and business activities;

2. Our tasks in the enterprise establishment services:

ANTLawyers will on behalf of clients to perform the following tasks:

Drafting and preparation the enterprise establishment dossier as regulations;

To apply the dossier for business and tax codes registration in the Department of Planning and Investment;

To monitor progress and inform regularly results to clients;

To obtain the Investment Certificate from the DPI;

Filing and registration the seal for Company at the Police Department;

To obtain the seal and the certificate of the seal for the Company at the Police Department;

To guide the customers to follow procedures in the relevant state authority (as needed);

3. Documents required to provide by clients:

Information requested form of business;

A copy of ID / passport of members / founding shareholder who is individual (notarized);

A copy of business registration / establishment decisions of members / founding shareholders who is organization.

4. Client’s benefits after establishment:

To be consulted and offered free the activating annual tax dossier, records and procedures for billing the enterprise;

To consult the necessary tasks of the new enterprise;

To consult human resources management , provide free labor contracts and the forms of management personnel;

To consult the procedures for salary scale registration, the social insurance registration of company;

To consult on tax matters, tax refund, tax credit;

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Renewal of License for the Establishment of Branches Office in Vietnam

 

How to extend branch license in Vietnam?

The extension of the license for the establishment of a foreign trader’s branch in Vietnam shall be following the regulation of the commercial law and the relevant guiding decrees and circulars under Vietnam laws.

Preparation of dossiers for extension of license for the establishment of branches includes:

Application for extension of license for the establishment of branches, made according to the form set by the Ministry of Industry and Trade, signed by a competent representative of the foreign trader;

A copy of the business registration certificate or equivalent paper of the foreign trader that is translated into Vietnamese and certified by a Vietnamese diplomatic mission or consulate abroad consular legalization in accordance with the law of Vietnam;

Copies of audited financial statements or documents certifying the fulfillment of tax or financial obligations in the latest fiscal year or papers of equivalent value issued by competent agencies or organizations (where the foreign trader established) to prove the existence and operation of the foreign trader in the latest financial year, it must be translated into Vietnamese and authenticated in accordance with the provisions of Vietnamese law;

A copy of the license for the establishment of the branch.

The order and procedures for extension of the license for the establishment of the branch at a competent agency shall be as follows:

A dossier for extension of the license for the establishment of the branch must be submitted within 30 days at the latest before the license expires;

Foreign traders submit applications directly or via post or online (if applicable) to the Ministry of Industry and Trade;

Within 03 working days from the date of receipt of the dossier, the Ministry of Industry and Trade shall check 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 05 working days from the date of receipt of the complete and valid dossier, the Ministry of Industry and Trade shall renew the branch establishment permit. In case of non-renewal, the reasons therefor must be clearly stated in writing;

In case the extension of the license for the establishment of the branch is not governed in specialized legal documents, the Ministry of Industry and Trade shall send a written request for comment to the specialized management ministry within 03 working days from the date of receipt of a complete and valid file. Within 5 working days from the date of receiving the Ministry of Industry and Trade’s written request, the specialized managing ministries shall clearly state whether they agree or disagree with the license extension. Within 5 working days after receiving the opinions of the specialized management ministry, the Ministry of Industry and Trade shall extend or not extend the branch establishment permit to the foreign trader. In case of non-renewal, the reasons therefor must be clearly stated in writing;

Within 15 days from the date of extension of the license for the establishment of the branch, the Ministry of Industry and Trade shall publish on the website of the Ministry.

Our lawyers in Vietnam constantly follow up with changes of law to provide the client with update for better decision making process.

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