DECREE No. 87/2003/ND-CP OF JULY 22, 2003 ON PROFESSIONAL PRACTICE BY FOREIGN LAWYERS' ORGANIZATIONS AND FOREIGN LAWYERS IN VIETNAM
THE GOVERNMENT
Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the July 25, 2001 Ordinance on Lawyers;
At the proposal of the Justice Minister,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Scope of regulation
This Decree prescribes the conditions for, scope and forms of professional practice, rights and obligations of foreign lawyers' organizations and foreign lawyers practicing their profession in Vietnam, and the State management over professional practice by foreign lawyers' organizations and foreign lawyers in Vietnam.
Article 2.- The principle of non-discrimination
The Vietnamese Government ensures the non-discrimination among foreign lawyers' organizations and foreign lawyers practicing their profession in Vietnam.
Article 3.- Protection of ownership right over investment capital and other legitimate interests of foreign lawyers' organizations and foreign lawyers
The Vietnamese Government protects ownership right over investment capital and other legitimate interests of foreign lawyers' organizations and foreign lawyers practicing their profession in Vietnam according to the provisions of Vietnamese law.
Article 4.- Prohibition of illegal professional practice by lawyers
Foreign organizations and individuals shall not be allowed to practice the lawyer's profession in Vietnam in any forms if they are not granted licenses by Vietnam's Justice Ministry according to the provisions of this Decree.
Article 5.- Language to be used and consular legalization
1. Applications for licenses for professional practice in Vietnam by foreign lawyers' organizations and foreign lawyers shall be made in Vietnamese. Papers enclosed with license applications which are in foreign languages must be translated into Vietnamese and the translations must be notarized according to the provisions of Vietnamese law.
2. Papers granted by foreign agencies or organizations or notarized or authenticated abroad must be consularly legalized according to the provisions of Vietnamese law.
Article 6.- Fees
Foreign lawyers' organizations and foreign lawyers applying for establishment licenses, registering their operation and/or changes in the contents of their licenses, or applying for licenses for professional practice in Vietnam shall have to pay fees according to the law provisions on charges and fees.
Chapter II
PRACTICING CONDITIONS, PROFESSION-PRACTICING FORMS AND LICENSING PROCEDURES FOR FOREIGN LAWYERS' ORGANIZATIONS
Article 7.- Profession-practicing conditions
Foreign lawyers' organizations lawfully established and practicing the lawyer's profession in foreign countries and having goodwill toward the Vietnamese State shall be licensed to practice their profession in Vietnam according to the provisions of this Decree.
Article 8.- Profession-practicing forms
Foreign lawyers organizations shall practice their profession in Vietnam in the following forms:
1. Branches of foreign lawyers' organizations (hereinafter referred to as branches for short).
2. Foreign law firms.
3. Law partnerships between foreign lawyers' organizations and Vietnamese law partnerships (hereinafter referred to as foreign-Vietnam law partnerships for short).
Article 9.- Branches
1. Branches are dependent units of foreign lawyers' organizations, which are set up in Vietnam according to the provisions of this Decree.
2. Branches bear unlimited liability for their operations before the Vietnamese law.
3. A foreign lawyers' organization shall designate one lawyer to act as the head of its branch. The branch head shall manage and run the branch's operations in Vietnam and act as the branch's representative at law. A branch head may be a foreign lawyer or a Vietnamese lawyer.
Article 10.- Foreign law firms
1. Foreign law firms are lawyer's profession-practicing organizations established in Vietnam by one or many foreign lawyers' organizations according to the provisions of this Decree.
2. Foreign law firms shall manage by themselves and take unlimited liability for all their operations before the Vietnamese law.
3. Directors of foreign law firms are representatives at law of the firms. Directors of foreign law firms may be either foreign lawyers or Vietnamese lawyers.
Article 11.- Foreign-Vietnam law partnerships
1. Foreign-Vietnam law partnerships are lawyer's profession-practicing organizations established in Vietnam on the basis of partnership contracts between one or several foreign lawyers' organizations and one or several Vietnamese law partnerships according to the provisions of this Decree.
2. Partners to foreign-Vietnam law partnerships shall bear unlimited joint liability for all operations of the partnerships before the Vietnamese law.
3. The rights and obligations of, and relationships between, partners, the organizational structure and management of foreign-Vietnam law partnerships shall be agreed upon by partners and specified in their partnership contracts.
4. Directors of foreign-Vietnam law partnerships are representatives at law of the partnerships. Directors of foreign-Vietnam law partnerships may be either foreign lawyers or Vietnamese lawyers.
Article 12.- Dossiers of application for setting up branches
A dossier of application for setting up a branch comprises the following papers:
1. An application for setting up a branch;
2. Copies of papers evidencing the lawful establishment of the foreign lawyers' organization, issued by foreign competent agencies or organizations;
3. Written introduction of the operation of the foreign lawyers' organization;
4. The list of foreign lawyers expected to work at the branch, enclosed with their dossiers of application for licenses for professional practice in Vietnam;
5. The decision on designation of a lawyer to act as the branch head.
Article 13.- Contents of applications for setting up branches
An application for setting up a branch must have the following principal contents:
1. The full name, nationality and address of the head office of the foreign lawyers' organization;
2. The name of the branch;
3. The domains of the branch's professional practice;
4. The operation duration of the branch;
5. The location of the branch's office;
6. The full name of the lawyer appointed to be the branch head by the foreign lawyers' organization.
Article 14.- Dossiers of application for establishment of foreign law firms
A dossier of application for establishment of a foreign law firm comprises:
1. An application for establishment of a foreign law firm;
2. Copies of papers evidencing the lawful establishment of the foreign lawyers' organization, issued by foreign competent agencies or organizations;
3. Written introduction of the operation of the foreign lawyers' organization;
4. The list of foreign lawyers expected to work at the firm, enclosed with their dossiers of application for licenses for professional practice in Vietnam;
5. The charter of the foreign law firm.
Article 15.- Contents of applications for establishment of foreign law firms
An application for establishment of a foreign law firm must have the following principal contents:
1. The full name, nationality and address of the head office of the foreign lawyers' organization;
2. The name of the foreign law firm;
3. The domains of the foreign law firm's professional practice;
4. The operation duration of the foreign law firm;
5. The location of the foreign law firm's office;
6. The full name of the lawyer designated to be the director of the foreign law firm.
Article 16.- Contents of charters of foreign law firms
The charter of a foreign law firm must have the following principal contents:
1. The names and addresses of the head office and branches (if any); the full name and address of the competent representative of the foreign lawyers' organization;
2. The domain of the foreign law firm's professional practice;
3. Rights, obligations and responsibilities of, and relationships between, member lawyers of the foreign law firm;
4. The organizational structure and management of the foreign law firm;
5. The representative at law of the foreign law firm;
6. Operation duration and conditions for termination of operation of the foreign law firm;
7. Mode of amending and supplementing the charter of the foreign law firm.
Article 17.- Dossiers of application for establishment of foreign-Vietnam law partnerships
A dossier of application for establishment of a foreign-Vietnam law partnership comprises the following papers:
1. An application for establishment of a foreign-Vietnam law partnership;
2. Copies of papers evidencing the lawful establishment of the foreign lawyers' organization, copy of the written operation registration of the Vietnamese law partnership;
3. Written introduction of the operations of the foreign lawyers' organization and the Vietnamese law partnership;
4. The list of foreign lawyers expected to work at the foreign-Vietnam law partnership, enclosed with their dossiers of application for licenses for professional practice in Vietnam; the list of Vietnamese lawyers expected to work at the foreign-Vietnam law partnership, enclosed with copies of their profession-practicing certificates and their lawyer's cards;
5. The partnership contract.
Article 18.- Contents of applications for establishment of foreign-Vietnam law partnerships
An application for establishment of a foreign-Vietnam law partnership must have the following principal contents:
1. The name, nationality and the address of the head office of the foreign lawyers' organization; the name and the address of the head office of the Vietnamese law partnership;
2. The name of the foreign-Vietnam law partnership;
3. The domains of the foreign-Vietnam law partnership's professional practice;
4. The operation duration of the foreign-Vietnam law partnership's office;
5. The location of the foreign-Vietnam law partnership's office;
6. The full names of the lawyers being the director and deputy-directors of the foreign-Vietnam law partnership.
Article 19.- Contents of partnership contracts
A partnership contract must have the following principal contents:
1. The names, addresses and competent representatives of the partners; the name and address of the foreign-Vietnam law partnership;
2. The domains of the foreign-Vietnam law partnership's professional practice;
3. Rights and obligations of, and relationships between, the partners; rights and obligations of lawyers being members to the foreign-Vietnam law partnership;
4. The organizational structure and management of the foreign-Vietnam law partnership;
5. The representative at law of the foreign-Vietnam law partnership;
6. The operation duration of the foreign-Vietnam law partnership;
7. Mode of amending and terminating the contract, the conditions for terminating the operation of the foreign-Vietnam law partnership.
Article 20.- Procedures for granting licenses for establishment of branches, foreign law firms or foreign-Vietnam law partnerships
Dossiers of application for establishment of branches, foreign law firms or foreign-Vietnam law partnerships (hereinafter referred collectively to as Vietnam-based foreign lawyer's profession-practicing organizations) shall be sent to the Justice Ministry. Within 60 days after receiving complete and valid dossiers and fee, the Justice Ministry shall examine dossiers and grant or refuse to grant licenses.
A license shall be made in three (3) copies: One copy shall be granted to the foreign lawyers' organization in Vietnam, one copy sent to the People's Committee of the province or centrally-run city where the office of the Vietnam-based foreign lawyer's profession-practicing organization is located, and another kept at the Justice Ministry.
Licenses shall be valid as from the date of their signing.
In case of refusal to grant licenses, the Justice Ministry must notify such in writing and clearly state the reason(s) therefor.
Article 21.- Registration of operation of Vietnam-based foreign lawyer's profession-practicing organizations
1. Within 60 days as from the date they are granted licenses, Vietnam-based foreign lawyer's profession-practicing organizations shall have to register their operation with the Justice Services of the provinces or centrally-run cities where their offices are located.
2. A dossier for operation registration comprises the following papers:
a/ Copy of the license for establishment of the Vietnam-based foreign lawyer's profession-practicing organization;
b/ Paper(s) evidencing the location of the Vietnam-based foreign lawyer's profession-practicing organization's office.
3. Within 15 days after the date of receiving complete and valid dossiers, the provincial/municipal Justice Services shall have to grant written operation registrations to the Vietnam-based foreign lawyer's profession-practicing organizations.
Vietnam-based foreign lawyer's profession-practicing organizations may operate only as from the date they are granted written operation registrations.
Article 22.- Publication on newspapers and notification of the establishment of Vietnam-based foreign lawyer's profession-practicing organizations
Within 15 days after being granted written operation registrations, Vietnam-based foreign lawyer's profession-practicing organizations shall have to publish their establishment on a local or central newspaper for three consecutive issues; and notify in writing the bar associations and tax offices of the localities where their offices are located of the following principal contents:
1. The names and addresses of their offices;
2. The profession-practicing domains;
3. The full names of branch heads, directors of foreign law firms or directors of foreign-Vietnam law partnerships.
Article 23.- Changes in contents of licenses for establishment of Vietnam-based foreign lawyer's profession-practicing organizations
1. When a Vietnam-based foreign lawyer's profession-practicing organization changes one of the following contents of its establishment license, it shall have to file an application for permission of the Justice Ministry and may make change(s) only after it obtains the Justice Ministry's written approval:
a/ Its name.
b/ Its office, which is relocated from one province or centrally-run city to another.
c/ The branch head, director of the foreign law firm or director of the foreign-Vietnam law partnership.
d/ Its profession-practicing domain.
2. Within 30 days after the written approval of the change in the license content takes effect, the Vietnam-based foreign lawyer's profession-practicing organization shall have to register such change at the Justice Service of the locality where its office is located.
When making changes in the contents of their licenses, Vietnam-based foreign lawyer's profession-practicing organizations shall have to publish on newspapers or notify contents of such changes according to the provisions in Article 22 of this Decree.
Article 24.- Branches of foreign law firms or foreign-Vietnam law partnerships
1. Foreign law firms and foreign-Vietnam law partnerships are entitled to set up their branches outside the provinces or centrally-run cities where their head offices are located.
2. Branches are dependent units of foreign law firms or foreign-Vietnam law partnerships and are allowed to perform tasks under authorization of their foreign law firms or foreign-Vietnam law partnerships in line with the profession-practicing domains inscribed in the licenses of the foreign law firms or foreign-Vietnam law partnerships.
3. Foreign law firms and foreign-Vietnam law partnerships shall be responsible for their branches' operations .
4. A dossier of application for a permit to set up a branch comprises the following papers:
a/ An application for a permit to set up a branch;
b/ Copy of the establishment license of the foreign law firm or the foreign-Vietnam law partnership;
c/ Mandate for a lawyer to act as the branch head;
d/ Copy of the practice license of the lawyer mandated to act as the branch head;
e/ Papers evidencing the branch's office location.
5. Dossiers of application for permits to set up branches shall be sent to the Justice Ministry. Within 30 days after receiving complete and valid dossiers and fee, the Justice Ministry shall examine them and decide to permit or refuse to permit the setting up of branches.
In case of refusal to permit the setting up of branches, the Justice Ministry shall have to notify such in writing and clearly state the reasons therefor.
6. Within 15 days after receiving decisions permitting them to set up branches, foreign law firms or foreign-Vietnam law partnerships shall have to register the operation of their branches with the provincial/municipal Justice Services of localities where the branch offices are located.
7. The procedures for publishing on newspapers and notify the setting up of branches of foreign law firms or foreign-Vietnam law partnerships shall comply with the provisions in Article 22 of this Decree.
Article 25.- Amalgamation of foreign law firms
Two or more foreign law firms may agree to amalgamate themselves into one foreign law firm.
Procedures for amalgamation are prescribed as follows:
1. The concerned foreign law firms prepare contracts on amalgamation and contracts on establishment of new foreign law firms.
The amalgamation contracts must contain provisions on procedures and conditions for amalgamation, labor use plans; duration, procedures and conditions for asset transfer; time limit for effecting the amalgamation.
Contracts on establishment of new foreign law firms have the same contents as partnership contracts prescribed in Article 19 of this Decree.
Within 10 days after receiving the amalgamation applications and valid dossiers, the Justice Ministry shall issue decisions approving the amalgamation in form of granting licenses for establishment of foreign law firms. In case of refusal, the reasons therefor must be notified in writing.
2. Procedures for registering operation, publishing on newspapers and notifying the establishment of new foreign law firms shall comply with the provisions in Articles 21 and 22 of this Decree.
After the new foreign law firms are granted written operation registrations, the old foreign law firms shall terminate their existence. The new foreign law firms shall enjoy the rights and legitimate interests, be liable to unpaid debts, legal service contracts currently being performed, labor contracts already signed with lawyers, staff members and other property obligations of the foreign law firms.
Article 26.- Merger of foreign law firms
One or several foreign law firms may be merged into another foreign law firm
Procedures for merging foreign law firms are prescribed as follows:
1. The concerned foreign law firms prepare merger contracts. Merger contracts must contain provisions on labor use plans; duration, procedures and conditions for property transfer; procedures and time limit for effecting the merger.
2. Merging foreign law firms shall not have to make operation registration but shall only carry out the procedures for changing the contents of their establishment licenses according to the provisions in Article 23 of this Decree.
Merging foreign law firms shall enjoy the rights and legitimate interests, bear liability for unpaid debts, legal service contracts being currently performed and labor contracts already signed with lawyers, staff members, and other property obligations of the merged foreign law firms.
Article 27.- Temporary suspension of operation
1. Vietnam-based foreign lawyer's profession-practicing organizations shall temporarily suspend their operation in the following cases:
a/ They decide at their own will on temporary operation suspension.
b/ They are administratively sanctioned in the form of suspending operation for a definite time.
2. In cases where Vietnam-based foreign lawyer's profession-practicing organizations temporarily suspend their operation according to the provisions at Point a, Clause 1 of this Article, they shall have to notify such in writing to the Justice Ministry at least 30 days before the planned date of temporary operation suspension.
Vietnam-based foreign lawyer's profession-practicing organizations shall be allowed to temporarily suspend operation as from the date they obtain written approval of the Justice Ministry.
3. Within 15 days at most after obtaining the Justice Ministry's written approval or decisions on operation suspension for a definite time, Vietnam-based foreign lawyer's profession-practicing organizations shall have to notify in writing the operation suspension to the provincial/municipal Justice Services, bar associations and tax offices of the localities where their offices are located.
4. During the temporary operation suspension, Vietnam-based foreign lawyer's profession-practicing organizations shall have to fully pay their tax arrears; be liable to pay other debts and bear responsibility for legal consultancy contracts already signed with their clients and labor contracts already signed with lawyers and staff members, except otherwise agreed upon by the concerned parties.
5. At least 30 days before the planned date of operation resumption, Vietnam-based foreign lawyer's profession-practicing organizations shall have to report in writing to the Justice Ministry, the provincial/municipal Justice Services, bar associations and tax offices of the localities where they are headquartered on the operation resumption.
Article 28.- Termination of operation
1. Vietnam-based foreign lawyer's profession-practicing organizations shall terminate their operation in the following cases:
a/ They terminate their operation at their own will.
b/ Their licenses are withdrawn.
2. In cases where Vietnam-based foreign lawyer's profession-practicing organizations terminate operation at their own will, they shall, at least 30 days before the planned time of operation termination, have to notify in writing the operation termination to the Justice Ministry and the Justice Services of the provinces and centrally-run cities where they register their operation and the concerned competent State agencies.
Within 15 days after receiving notices on operation termination of Vietnam-based foreign lawyer's profession-practicing organizations, the Justice Ministry shall issue decisions on operation termination of such Vietnam-based foreign lawyer's profession-practicing organizations.
Before the time of operation termination, Vietnam-based foreign lawyer's profession-practicing organizations shall have to pay fully tax arrears and other debts, complete procedures for terminating labor contracts already signed with lawyers and staff members, and liquidate legal consultancy contracts signed with their clients, except otherwise agreed upon.
3. In case of withdrawal of establishment licenses, Vietnam-based foreign lawyer's profession-practicing organizations shall, within 60 days after the issuance of the Justice Ministry's decisions on operation termination or decisions on sanctioning administrative violations by mode of license withdrawal, have to pay fully tax arrears and other debts, complete procedures for terminating labor contracts already signed with lawyers and staff members, and liquidate legal consultancy contracts signed with their clients, except otherwise agreed upon.
Vietnam-based foreign lawyer's profession-practicing organizations shall have to report in writing to the Justice Ministry, provincial/municipal Justice Services, bar associations and tax offices of the localities where they are headquartered on the completion of the said procedures; return their licenses to the Justice Ministry, their operation registrations to the Justice Services and their seals to the agencies competent to grant and register the use thereof.
Chapter III
SCOPE OF PROFESSIONAL PRACTICE, RIGHTS AND OBLIGATIONS OF VIETNAM-BASED FOREIGN LAWYER'S PROFESSION-PRACTICING ORGANIZATIONS
Article 29.- Scope of professional practice of Vietnam-based foreign lawyer's profession-practicing organizations
1. Vietnam-based foreign lawyer's profession-practicing organizations are allowed to provide legal consultancy and other legal services; must not designate their lawyers to participate in legal proceedings as defense counsels or representatives of their clients before the Vietnamese courts.
2. Vietnam-based foreign lawyer's profession-practicing organizations are allowed to provide legal consultancy on Vietnamese laws in the following cases:
a/ They employ Vietnamese lawyers to practice their profession for them.
b/ Foreign lawyers practicing their profession at Vietnam-based foreign lawyer's profession-practicing organizations have Vietnam's law university diplomas and fully satisfy the requirements as for Vietnamese lawyers.
Article 30.- Cooperation in legal consultancy with Vietnamese lawyers' organizations
Vietnam-based foreign lawyer's profession-practicing organizations are entitled to enter into long-term or case-by-case contracts on legal consultancy cooperation with Vietnamese lawyers' offices or Vietnamese law partnerships, in order provide consultancy on Vietnamese laws, foreign laws or international laws to their clients.
Article 31.- Hiring of foreign lawyers
1. Vietnam-based foreign lawyer's profession-practicing organizations may hire foreign lawyers who have licenses for professional practice in Vietnam to work for them.
2. Rights and obligations of foreign lawyers working for Vietnam-based foreign lawyer's profession-practicing organizations shall be agreed upon by such Vietnam-based foreign lawyer's profession-practicing organizations and foreign lawyers in contracts in compliance with the labor legislation and this Decree.
Article 32.- Hiring of Vietnamese lawyers
1. Vietnam-based foreign lawyer's profession-practicing organizations are entitled to hire Vietnamese lawyers to work for them.
2. Vietnamese lawyers practicing their profession at Vietnam-based foreign lawyer's profession-practicing organizations are entitled to provide legal consultancy and other legal services; must not participate in legal proceedings as defense counsels or representatives of their clients before the Vietnamese courts.
3. Rights and obligations of Vietnamese lawyers practicing their profession at Vietnam-based foreign lawyer's profession-practicing organizations shall be agreed upon in labor contracts in compliance with the provisions of the Lawyer Ordinance, this Decree and the labor legislation.
Article 33.- Hiring of Vietnamese laborers and/or foreign laborers who are not lawyers
1. Vietnam-based foreign lawyer's profession-practicing organizations are entitled to sign labor contracts with Vietnamese citizens and/or foreigners, who are not lawyers, according to the provisions of the labor legislation.
2. Rights and obligations of Vietnamese laborers, foreign laborers who are not lawyers and working for Vietnam-based foreign lawyer's profession-practicing organizations are specified in their contracts in compliance with the labor legislation.
Article 34.- Admission of Vietnamese probationary lawyers
1. Vietnam-based foreign lawyer's profession-practicing organizations may admit probationary lawyers of Vietnamese bar associations to apprentice the lawyer's profession practice thereat.
2. The profession apprentice by Vietnamese probationary lawyers at Vietnam-based foreign lawyer's profession-practicing organizations shall comply with the provisions of the Vietnamese law on the lawyer profession apprentice regime.
Vietnamese probationary lawyers on professional apprentice at Vietnam-based foreign lawyer's profession-practicing organizations must not participate in legal proceedings as defense counsels or representatives of clients before the Vietnamese courts.
3. Rights and obligations of Vietnamese probationary lawyers shall be agreed upon by the Vietnam-based foreign lawyer's profession-practicing organizations and such Vietnamese probationary lawyers in compliance with the provisions of law.
4. Bar associations of localities where the offices of Vietnam-based foreign lawyer's profession-practicing organizations are located shall recommend probationary lawyers with such Vietnam-based foreign lawyer's profession-practicing organizations; supervise and appraise the probation results of the probationary lawyers at Vietnam-based foreign lawyer's profession-practicing organizations.
Article 35.- The accounting and statistical regime and financial obligations
1. Vietnam-based foreign lawyer's profession-practicing organizations must implement the accounting and statistical regime according to the provisions of Vietnamese law; open accounts in foreign currencies and Vietnam dong at Vietnamese banks, joint-venture banks or foreign banks licensed to operate in Vietnam, and effect all revenues and expenditures via such accounts.
2. Vietnam-based foreign lawyer's profession-practicing organizations are obliged to pay taxes according to the provisions of law.
3. Vietnam-based foreign lawyer's profession-practicing organizations must strictly observe the law provisions on foreign exchange management.
Article 36.- Import of means necessary for operation
Vietnam-based foreign lawyer's profession-practicing organizations are allowed to import assorted means necessary for their operation in Vietnam according to the provisions of law.
Article 37.- Overseas transfer of incomes
Branches, foreign law firms, foreign partners to foreign-Vietnam law partnerships are entitled to transfer overseas incomes earned from their professional practice activities according to the provisions of law.
Article 38.- Damage compensation liability
Vietnam-based foreign lawyer's profession-practicing organizations are liable to pay compensations for material damage caused to their clients by their lawyers who are at fault.
Article 39.- Professional liability insurance
Vietnam-based foreign lawyer's profession-practicing organizations are obliged to buy professional liability insurance for their lawyers practicing the lawyer's profession in Vietnam according to the provisions of the insurance legislation.
Article 40.- The regime of notification of and reporting on organization and operation
1. Vietnam-based foreign lawyer's profession-practicing organizations shall have to notify in writing the provincial/municipal Justice Services of the localities where they are headquartered of the following contents:
a/ The lists or changes in the lists of foreign lawyers, Vietnamese lawyers, Vietnamese laborers, foreign laborers, Vietnamese probationary lawyers on professional probation at Vietnam-based foreign lawyer's profession-practicing organizations;
b/ Relocation of their offices within the provinces or centrally-run cities where they are allowed to be set up.
2. Vietnam-based foreign lawyer's profession-practicing organizations shall have to report in writing biannually and annually on their organization and operation to the Justice Ministry and the provincial/municipal Justice Services of the localities where their offices are located. In case of necessity, they shall have to report at requests of the Justice Ministry and the concerned agencies according to the provisions of law.
Chapter IV
PROFESSION-PRACTICING CONDITIONS, FORMS AND SCOPE, PROCEDURES FOR GRANTING LICENSES, RIGHTS AND OBLIGATIONS OF FOREIGN LAWYERS
Article 41.- Profession-practice conditions
Foreign lawyers who fully meet the following conditions shall be granted licenses for professional practice in Vietnam according to the provisions of this Decree:
1. Having lawyer's profession-practicing certificates granted by the foreign competent agencies or organizations which are still valid;
2. Having goodwill toward the Vietnamese State;
3. Being designated by a foreign lawyers' organization to practice their profession in Vietnam or being recruited by a Vietnam-based foreign lawyer's profession-practicing organization or a Vietnamese lawyer practice organization to work at such organization.
Article 42.- Profession-practicing forms
Foreign lawyers shall practice their profession in Vietnam in the following forms:
1. Working as members or employees of Vietnam-based foreign lawyer's profession-practicing organizations.
2. Working as employees of Vietnamese lawyers offices or Vietnamese law partnerships.
Article 43.- Scope of professional practice by foreign lawyers
Foreign lawyers shall practice their profession in Vietnam within the following scope:
1. To provide consultancy on foreign laws and international laws.
2. Not to provide consultancy on Vietnamese laws, except for cases where they have Vietnamese law university degrees and fully satisfy the requirements as for Vietnamese lawyers.
3. Not to participate in legal proceedings as defense counsels or representatives of clients before the Vietnamese courts.
Article 44.- Foreign lawyers' dossiers of application for profession-practicing licenses
A foreign lawyer's dossier of application for a profession-practicing license comprises the following papers:
1. An application for a license for professional practice in Vietnam;
2. Paper(s) certifying that he/she is a lawyer of a foreign lawyers organization designated to practice profession in Vietnam or paper certifying the recruitment by a Vietnam-based foreign lawyer's profession-practicing organization, Vietnamese lawyers office or Vietnamese law partnership where such foreign lawyer is expected to work;
3. Copy of the lawyer's profession-practicing certificate of the foreign lawyer, a summary of professional backgrounds, written judicial record or other papers of substitute value.
Article 45.- Procedures for granting licenses for professional practice in Vietnam to foreign lawyers
1. Foreign lawyers who wish to practice their profession in Vietnam in any form according to the provisions in Article 42 of this Decree shall have to send their dossiers of application for licenses for professional practice in Vietnam to the Justice Ministry. Within 30 days after receiving complete and valid dossiers and fee, the Justice Ministry shall examine such dossiers and grant or refuse to grant licenses to foreign lawyers. In case of refusal to grant licenses, the reasons therefor must be notified in writing.
2. A license for professional practice in Vietnam shall be valid for 5 years and may be extended. Each extension must not exceed 5 years.
3. Licenses for professional practice in Vietnam granted to foreign lawyers shall replace work permits according to the Vietnamese law provisions on granting of work permits to foreigners working in Vietnam.
Article 46.- Rights and obligations of foreign lawyers
1. Foreign lawyers are entitled to choose form of professional practice in Vietnam according to the provisions in Article 42 of this Decree.
2. Foreign lawyers are entitled to transfer abroad incomes earned from their profession-practicing activities according to the provisions of law.
3. Foreign lawyers are obliged to pay personal income tax according to the provisions of law.
4. Foreign lawyers practicing their profession in Vietnam shall have to comply with the lawyer profession-practicing principles prescribed in Article 2 of the Ordinance on Lawyers, the prohibitions for lawyers prescribed in Article 16 of the Ordinance on Lawyers, and the model rules on professional ethics of lawyers promulgated by the Justice Ministry.
5. Foreign lawyers practicing their profession in Vietnam must be permanently present in Vietnam.
Chapter V
MANAGEMENT OF PROFESSIONAL PRACTICE BY FOREIGN LAWYERS ORGANIZATIONS AND FOREIGN LAWYERS IN VIETNAM
Article 47.- Tasks and powers of the Justice Ministry
The Justice Ministry manages the professional practice by foreign lawyers' organizations and foreign lawyers in Vietnam, having the following tasks and powers:
1. To elaborate and submit to the competent agencies for promulgation legal documents on professional practice by foreign lawyers' organizations and foreign lawyers in Vietnam; to guide the implementation of such legal documents;
2. To grant, change contents of licenses for establishment of Vietnam-based foreign lawyer's profession-practicing organizations; to permit the setting up of branches of foreign law firms or foreign-Vietnam law partnerships; to grant licenses for foreign lawyers to practice their profession in Vietnam;
3. To examine and inspect the organization and activities of Vietnam-based foreign lawyer's profession-practicing organizations and foreign lawyers in Vietnam in case of handling of violations or settlement of complaints and denunciations or in case of necessity;
4. To act as the key body in charge of settling matters related to the professional practice by Vietnam-based foreign lawyer's profession-practicing organizations and foreign lawyers in Vietnam;
5. To suspend professional practice for a definite time or withdraw licenses for professional practice in Vietnam of foreign lawyers; to suspend the operation for a definite time or withdraw the establishment licenses of Vietnam-based foreign lawyer's profession-practicing organizations.
Article 48.- Tasks and powers of the ministries, ministerial-level agencies and agencies attached to the Government
The ministries, ministerial-level agencies and agencies attached to the Government shall, within the ambit of their respective tasks and powers, coordinate with the Justice Ministry in managing the professional practice by foreign lawyers' organizations and foreign lawyers in Vietnam.
Article 49.- Tasks and powers of the People's Committees of the provinces and centrally-run cities
1. The People's Committees of the provinces and centrally-run cities shall, within the ambit of their tasks and powers, perform the management of the professional practice by foreign lawyers' organizations and foreign lawyers in their respective localities, and handle violations according to the provisions of this Decree.
2. The provincial/municipal Justice Services of the localities where the offices of Vietnam-based foreign lawyer's profession-practicing organizations are located shall assist the People's Committees of the provinces and centrally-run cities in performing the management of the professional practice by foreign lawyers' organizations and foreign lawyers in their respective localities, having the following tasks and powers:
a/ To effect the registration of operation or change in the contents of licenses for establishment of Vietnam-based foreign lawyer's profession-practicing organizations; to effect the registration of operation of branches of foreign law firms or foreign-Vietnam law partnerships;
b/ To supply information on the operation registration of Vietnam-based foreign lawyer's profession-practicing organizations, branches of foreign law firms and branches of foreign-Vietnam law partnerships to the State agencies, organizations and individuals that have the requests therefor according to the provisions of law;
c/ To monitor the hiring of foreign lawyers, Vietnamese lawyers, foreign laborers and Vietnamese laborers, the professional practice cooperation, the admission of Vietnamese probationary lawyers by Vietnam-based foreign lawyer's profession-practicing organizations; the hiring and professional practice of foreign lawyers at Vietnamese lawyers offices or Vietnamese law partnerships.
d/ To perform other activities of management over the professional practice of Vietnam-based foreign lawyer practice organization and foreign lawyers in Vietnam under the direction or guidance of the Justice Ministry and the People's Committees of the provinces and centrally-run cities where the offices of the Vietnam-based foreign lawyer's profession-practicing organizations are located.
e/ To examine and inspect the organization and operation of Vietnam-based foreign lawyer's profession-practicing organizations;
f/ To biannually and annually report to the Justice Ministry and the People's Committees of the provinces and centrally-run cities on the organization and operation of Vietnam-based foreign lawyer's profession-practicing organizations within their respective assigned competence and management scope.
Chapter VI
COMMENDATION, HANDLING OF VIOLATIONS AND SETTLEMENT OF COMPLAINTS AND DENUNCIATIONS
Article 50.- Commendation
Individuals and organizations that record achievements in the domain of professional practices by foreign lawyers organizations and foreign lawyers in Vietnam shall be commended and/or rewarded according to the provisions of law.
Article 51.- Handling of violations committed by organizations and individuals illegally practicing the lawyer's profession
Foreign organizations and individuals that practice the lawyer's profession in Vietnam in any form without being granted licenses by the Justice Ministry according to the provisions of this Decree shall be compelled to stop their professional practice, fined at the maximum level of VND 20,000,000 and have their profits from professional practice confiscated.
Article 52.- Handling of violations committed by Vietnam-based foreign lawyer's profession-practicing organizations
Vietnam-based foreign lawyer's profession-practicing organizations which violate the provisions of this Decree shall, depending on the nature and seriousness of their violations, be sanctioned for administrative violations in the following forms:
1. Caution or a fine of between VND 1,000,000 and 5,000,000 for one of the following acts:
a/ Failing to buy professional liability insurance for their lawyers practicing their profession in Vietnam;
b/ Failing to report or falsely reporting on their organization and operation as prescribed;
c/ Failing to register, publish on newspapers or notify the matters prescribed in Articles 21 and 22 of this Decree;
d/ Erasing, crossing out or modifying their establishment licenses;
e/ Leasing or lending their establishment licenses;
f/ Having no offices and/or signboards, or using signboards in contravention of law.
2. A fine of between over VND 5,000,000 and 10,000,000 for one of the following acts:
a/ Relocating their offices from one province or centrally-run city to another when not yet so approved;
b/ Changing their names when not yet so approved;
c/ Changing the branch heads, directors of foreign law firms, directors of foreign-Vietnam law partnerships or profession-practicing domains when not yet so approved;
d/ Causing difficulties or obstacles to the inspection and examination by the competent State agencies;
e/ Temporarily suspending or terminating their operation without complying with the procedures for temporary suspension or termination of operation according to the provisions of this Decree;
3. A fine of between over VND 10,000,000 and 20,000,000 for one of the following acts:
a/ Practicing their profession after being suspended from operation for a definite time;
b/ Practicing their profession outside the domains inscribed in their licenses.
4. In cases where Vietnam-based foreign lawyer's profession-practicing organizations commit acts of violation prescribed in Clauses 1 and 2 of this Article which involve aggravating circumstances, they shall be fined at the highest level of the fine bracket, and may be suspended from operation for a definite time.
5. In cases where Vietnam-based foreign lawyer's profession-practicing organizations commit acts of violation prescribed in Clause 3 of this Article which involve aggravating circumstances, they shall be subject to a fine of VND 20,000,000 and may also have their establishment licenses withdrawn.
Article 53.- Handling of violations committed by foreign lawyers
1. Foreign lawyers who commit one of the following acts of violation shall, depending on the nature and seriousness of their violations, be sanctioned for administrative violations in form of caution or fine of between VND 1,000,000 and 10,000,000:
a/ Practicing their profession outside the scope of professional practice prescribed in Article 43 of this Decree;
b/ Letting other persons use their licenses for professional practice in Vietnam;
c/ Violating other provisions of this Decree.
2. In cases where foreign lawyers commit acts of violation prescribed in Clause 1 of this Article which involve aggravating circumstances, they shall be subject to a fine of between over VND 10,000,000 and 20,000,000 and may be also suspended from professional practice for a definite time or have their licenses for professional practice in Vietnam withdrawn.
Article 54.- Violation-handling competence of the presidents of the People's Committees of the provinces and centrally-run cities
The presidents of the People's Committees of the provinces and centrally-run cities where the offices of Vietnam-based foreign lawyer's profession-practicing organizations are located have the right:
1. To impose caution;
2. To impose fines of up to VND 20,000,000 for acts of violation committed by organizations and individuals prescribed in this Decree;
3. To propose the Justice Ministry to suspend operation for a definite time or withdraw establishment licenses of Vietnam-based foreign lawyer's profession-practicing organizations or licenses for professional practice in Vietnam of foreign lawyers according to their competence.
Article 55.- Complaints and denunciations
1. Individuals and organizations may lodge complaints about administrative decisions or administrative acts of the State administrative agencies or competent persons therein when they have grounds to believe that such decisions or acts violate the provisions of this Decree or infringe upon their legitimate rights and/or interests.
The settlement of complaints shall comply with the provisions of the legislation on complaints.
2. If disagreeing with decisions on settling complaints according to administrative procedures, the complainants may initiate administrative lawsuits at court according to the provisions of law.
3. Individuals may denounce with competent State agencies acts of violating the provisions of this Decree.
The settlement of denunciations shall comply with the provisions of the legislation on denunciations.
Chapter VII
IMPLEMENTATION PROVISIONS
Article 56.- Transitional provisions
1. Branches of foreign lawyers organizations in Vietnam already granted licenses under the Government's Decree No. 92/1998/ND-CP of November 10, 1998 on the legal consultancy practice by foreign lawyers' organizations in Vietnam shall be allowed to continue their professional practice until the date of expiry of their licenses. After their licenses are no longer effective, if wishing to practice their profession in form of branches, they shall have to carry out the procedures to apply for renewal of licenses under the Justice Ministry's guidance.
2. Foreign lawyers' organizations already granted by the Justice Ministry permits for setting up their branches in Vietnam under the Government's Decree No. 92/1998/ND-CP of November 10, 1998 on the legal consultancy practice by foreign lawyers' organizations in Vietnam may carry out the procedures for transforming branches into foreign law firms under the Justice Ministry's guidance.
3. Foreign lawyers already licensed by the Justice Ministry to practice their profession in Vietnam under the Government's Decree No. 92/1998/ND-CP of November 10, 1998 on the legal consultancy practice by foreign lawyers' organizations in Vietnam shall be allowed to continue their professional practice in Vietnam but shall, within 30 days as from the effective date of this Decree, have to carry out the procedures applying for profession-practicing licenses according to the provisions of this Decree.
Article 57.- This Decree takes effect 30 days after its publication in the Official Gazette.
This Decree replaces the Government's Decree No. 92/1998/ND-CP of November 10, 1998 on the legal consultancy practice by foreign lawyers' organizations in Vietnam.
Article 58.- Responsibility to implement the Decree
The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the People's Committees of the provinces and centrally-run cities shall have to implement this Decree.
The Justice Minister shall have to guide the implementation of this Decree.
On behalf of the Government
Prime Minister
PHAN VAN KHAI
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Thủ tướng |
(Signed) |
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Phan Van Khai |