LEGAL UPDATE ON FEBRUARY, 2016 ja

BRIEF OF SOME NEW TERMS

1.        COMMERCIAL

a.      Limited the number of Representative Offices (“R.O”) and Branches of a foreign trader:

–    A foreign trader is not allowed to establish more than one R.O or Branch having the same name within the scope of the province or the centrally-run city.

b.      Conditions on issuance of License for establishment of R.O, Branches of foreign traders in Vietnam:

–    Foreign traders are allowed to establish, register their business operation according to the provisions of countries or territories taking part in international treaties to which the Socialist Republic of Vietnam is a contracting party or be recognized as legal business by such countries or territories;

–    Foreign traders have operated for no less than 01 year (05 years if setting up a Branch) since legal establishment or valid business registration;

–    If Business Registration Certificate or the other certificates having equal value of foreign traders determines operation time, the operation time is still at least 01 year from the submission date of dossiers;

–   Operation contents of R.O must be in compliance with commitments of Vietnam in international treaties to which the Socialist Republic of Vietnam is a contracting party (and in compliance with business lines of foreign traders if setting up a Branch);

–    In case the operation contents of R.O are not in compliance with commitment of Vietnam or foreign traders do not belong to countries or territories taking part in international treaties to which the Socialist Republic of Vietnam is a contracting party, it required to obtain the approval of the Minister of specialized managing ministry before setting up a R.O and/or Branch.

c.       Time limit of License for establishment of R.O or Branches:

–    License for establishment of R.O, Branches expire in five (05) years but no more than expiration date of Business Registration or equal  documents of foreign traders in case foreign legislation establishes such a date;

–    The time limited of re-issued License for establishment of R.O or Branches shall be equal with the time limit of the previous License.

–    R.O or Branches which are set up before March 10, 2016 are continuous to operate until the expiration of issued License for establishment of  R.O/Braches.

2.        LABOUR

a.      Determining which careers using foreign workers:

–    The employer ((except for contractors) shall determine the demand for foreign workers for every position in which Vietnamese workers are not competent and report to the Presidents of the People’s Committees of the province where the foreign workers intend to work. The employer shall send a report to the President of the People’s Committee of the province if the demand for foreign workers is changed during the implementation;

–    In case of foreign workers as specified in Clause 4, 5 and 8 Article 172 of Labour Law and Point e and h Clause 2 Article 7 of Decree No. 11/2016/ND-CP, the employer is not required to determine the demand for foreign workers. 

b.      Conditions of work permits to foreign citizens working in Vietnam:

–    The worker is capable of civil acts as prescribed by law;

–    The worker’s health is suitable for his or her job;

–    The worker is a manager, executive officer, expert, or technician;

–    The worker is not a criminal or liable to criminal prosecution according to Vietnam’s law and the foreign country’s law;

–    The employment of the foreign worker is approved in writing by a competent authority;

And other conditions depend on type of work and time staying in Vietnam under the Law.

c.       The foreign worker is exempt from applying for the work permit:

–    Foreign workers in Vietnam or foreign citizens who enter Vietnam to work at positions as experts, managers, executive officers, or technicians under 30 days and not exceeding 90 accumulated days within one year are exempt from work permit;

–    In addition, other cases of exempting from work permit includes: The workers that are reassigned within the enterprises engaged in within 11 service industries in the commitment on services between Vietnam and WTO (including: business, communication, construction, distribution, education, environment, finance, health, tourism, entertainment, and transportation); Those who are studying in the school and/or  training establishments in foreign countries agreed for internship in the agencies, organizations and enterprises in Vietnam; Foreign citizens using official passport working at Government department, Political organization, Political- Social organization, etc.,;

–    Foreign workers must be certified by the Service of Labour, War Invalids and Social Affairs where the foreign workers intend to work at least 7 working days; the maximum time of certification are 02 years. On the other cases, foreign workers that work in Vietnam without the work permit will be expelled from Vietnam within 15 working days from the date of discovery.