Circular No. 01/2011/TT-BKHCN dated March 16, 2011 of the Ministry of Science and Technology guiding the establishment and operation registration of foreign-invested science and technology organizations and Vietnam-based representative offices and branches of foreign science and technology organizations

THE MINISTRY OF SCIENCE AND TECHNOLOGY

Circular No. 01/2011/TT-BKHCN of March 16, 2011, guiding the establishment and operation registration of foreign-invested science and technology organizations and Vietnam-based representative offices and branches of foreign science and technology organizations

Pursuant to the June 9, 2000 Law on Science and Technology;

Pursuant to the Government’s Decree No. 81/2002/ND-CP of October 17, 2002, detailing a number of articles of the Law on Science and Technology;

Pursuant to the Government’s Decree No. 80/2010/ND-CP of July 14, 2010, on foreign cooperation and investment in science and technology;

Pursuant to the Government’s Decree No. 28/2008/ND-CP of March 14, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Science and Technology;

The Minister of Science and Technology guides the establishment and operation registration of foreign-invested science and technology organizations and Vietnam-based representative offices and branches of foreign science and technology organizations as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope and subjects of regulation

This Circular guides conditions for establishment and procedures for operation registration of foreign-invested scientific research organizations, scientific research and technological development organizations and scientific and technological service organizations in Vietnam (below collectively referred to as foreign-invested science and technology organizations); and procedures for establishment and the rights and obligations of Vietnam-based representative offices and branches of foreign science and technology organizations.

Article 2. Languages and forms of submission of dossiers

1. Dossiers and official documents sent to Vietnamese state agencies shall be made in Vietnamese or in Vietnamese and a common foreign language. In case there is any difference between Vietnamese and foreign-language versions, the Vietnamese version prevails.

Papers included in dossiers which are granted or certified by competent foreign authorities must be translated into Vietnamese and consularly legalized.

2. Dossiers of application for establishment and operation registration of foreign-invested science and technology organizations and dossiers of application for licenses for establishment of Vietnam-based representative offices or branches of foreign science and technology organizations may be submitted directly or sent by post to the Ministry of Science and Technology.

Chapter II

CONDITIONS FOR ESTABLISHMENT AND PROCEDURES FOR OPERATION REGISTRATION OF FOREIGN-INVESTED SCIENCE AND TECHNOLOGY ORGANIZATIONS

Article 3. Conditions for establishment of foreign-invested science and technology organizations

Foreign-invested science and technology organizations may be established when meeting all conditions specified in Article 13 of the Government’s Decree No. 80/2010/ND-CP of July 14, 2010, on foreign cooperation and investment in science and technology (below referred to as Decree No. 80). Clauses b, c and d, Article 13 of Decree No. 80 are specifically guided as follows:

1. The operation charter of an organization must contain all basic details guided in Appendix I to this Circular, clearly and specifically stating fields of operation in conformity with Vietnamese law.

2. Conditions on scientific and technological staffs, working offices and physical and technical foundations comply with Articles 5 and 6 of the Science and Technology Minister’s Circular No. 02/2010/TT-BKHCN of March 18, 2010, guiding the establishment and operation registration of science and technology organizations (below referred to as Circular No. 02).

Particularly for joint-venture science and technology organizations between Vietnamese and foreign organizations and individuals, the capital portion held by foreign parties must account for at least 10% of the total registered operating capital and not be lower than VND 100,000,000.

Article 4. Sequence and procedures for issuing decisions on the establishment of foreign-invested science and technology organizations

1. Organizations or individuals shall send establishment application dossiers to the Office for Registration of Scientific and Technological Activities (below referred to the Registration Office) under the Ministry of Science and Technology.

The sequence and procedures for issuing establishment decisions comply with Articles 14 and 15 of Decree No. 80, except for some special cases which shall be submitted by the Ministry of Science and Technology to the Prime Minister for consideration and decision.

2. The Registration Office shall act as the focal point in receiving and appraising dossiers of application for establishment of foreign-invested science and technology organizations.

a/ For foreign-invested science and technology organizations to be established under the Prime Minister’s decisions, the Registration Office shall make and submit verification reports to the Minister of Science and Technology for submission to the Prime Minister.

In case the Ministry of Science and Technology is assigned by the Prime Minister to approve the operation charter of a foreign-invested science and technology organization, within 15 days after the assignment, the Registration Office shall propose the Minister of Science and Technology to issue a decision approving the operation charter of the foreign-invested science and technology organization;

b/ For foreign-invested science and technology organizations to be established under the Science and Technology Minister’s decisions, the Registration Office shall verify and propose the Minister of Science and Technology to issue decisions establishing foreign-invested science and technology organizations and decisions approving their operation charters;

c/ When wishing to amend its operation charter, a foreign-invested science and technology organization shall send a written request, enclosed with the draft charter, to the Registration Office. Within 15 working days, the Registration Office shall propose the Minister of Science and Technology to approve the amended charter or to report the case to the Prime Minister for decision according to his/her competence.

3. In the course of appraising a dossier of application for establishment of a foreign-invested science and technology organization, if considering it necessary, the Registration Office may:

a/ Collect opinions of experts on the dossier and the capacity of the science and technology organization;

b/  Directly exchange its opinions with a representative of the science and technology organization to clarify some details in the application dossier;

c/ Propose the Minister of Science and Technology to collect written opinions of concerned agencies and organizations on the fields of operation subject to specific conditions required by the State;

d/ Propose the Minister of Science and Technology to decide to form a dossier appraising council composed of qualified and prestigious managers, experts and scientists in relevant matters.

Article 5. Operation registration of foreign-invested science and technology organizations

1. Foreign-invested science and technology organizations shall submit operation registration dossiers to the Registration Office after the Prime Minister or the Minister of Science and Technology has decided on their establishment and approved their operation charters according to his/her competence.

2. Conditions and dossiers of operation registration of foreign-invested science and technology organizations comply with Articles 3, 4, 5 and 6 of Circular No. 02.

3. Foreign-invested science and technology organizations shall pay charges and fees under the Finance Ministry’s Circular No. 187/2009/TT-BTC of September 29, 2009, providing for rates and the collection, remittance and use management of charges for appraisal of conditions for scientific and technological activities and fees for grant of certificates of registration of scientific and technological activities.

Article 6. Certificates of registration of scientific and technological activities

1. Certificates of registration of scientific and technological activities shall be granted by the Ministry of Science and Technology to foreign-invested science and technology organizations according to the form provided in Appendix II to this Circular (not printed herein).

2. The validity term of a certificate of registration of scientific and technological activities of a science and technology organization is exactly the same as the implementation duration of the project stated in its investment certificate.

The certificates of registration of scientific and technological activities granted to foreign-invested science and technology organizations which have registered their operation before the effective date of Decree No. 80 may not indicate their validity terms.

3. The use, re-registration, registration of modification or supplementation, revocation and invalidation of certificates of registration of scientific and technological activities of foreign-invested science and technology organizations comply with Articles 8 and 9 of Circular No. 02.

Article 7. Operation registration of representative offices and branches of foreign-invested science and technology organizations

1. Foreign-invested science and technology organizations shall register the operation of their representative offices or branches at provincial-level Science and Technology Departments of the localities in which their representative offices or branches are based.

2. Conditions and dossiers of operation registration of representative offices or branches of foreign-invested science and technology organizations and the sequence and procedures for registration and revocation and invalidation of operation certificates comply with Articles 11 and 12 of Circular 02.

3. When registering the operation of their representative offices or branches, foreign-invested science and technology organizations shall pay charges and fees under the Finance Minister’s Circular No. 187/2009/TT-BTC of September 29, 2009, providing for rates and the collection, remittance and use management of charges for appraisal of conditions for scientific and technological activities and fees for grant of certificates of registration of scientific and technological activities.

Chapter III

VIETNAM-BASED REPRESENTATIVE OFFICES AND BRANCHES OF FOREIGN SCIENCE AND TECHNOLOGY ORGANIZATIONS

Article 8. Establishment conditions and dossiers of application for licenses for establishment of Vietnam-based representative offices or branches of foreign science and technology organizations

1. Vietnam-based representative offices and branches of foreign-invested science and technology organizations may be set up when meeting all conditions for the establishment and dossiers specified in Articles 26 and 27 of Decree No. 80.

2. Applications for licenses for establishment of Vietnam-based representative offices or branches of foreign science and technology organizations shall be made according to the form provided in Appendix III to this Circular (not printed herein).

Article 9. Contents of licenses for establishment of Vietnam-based representative offices or branches of foreign science and technology organizations

1. Licenses for establishment of Vietnam-based representative offices or branches of foreign science and technology organizations shall be granted by the Ministry of Science and Technology, containing the following principal details:

a/ Name and address of the representative office or branch;

b/ Name and address of the foreign science and technology organization;

c/ Information on the head of the representative office or branch;

d/ Contents of operation of the representative office or branch;

e/ The numbers of Vietnamese and foreign employees of the representative office or branch;

f/ Serial number, date of issuance and validity term of the license.

2. Licenses for establishment of Vietnam-based representative offices or branches of foreign science and technology organizations shall be made according to the form provided in Appendix IV to this Circular (not printed herein).

Article 10. Sequence and procedures for granting licenses for establishment of Vietnam-based representative offices or branches of foreign science and technology organizations

1. The Registration Office shall act as the focal point in receiving and appraising dossiers of application for licenses for establishment of Vietnam-based representative offices or branches of foreign science and technology organizations.

2. After receiving a complete and valid dossier, the Registration Office shall examine the dossier and propose the Minister of Science and Technology to request the provincial-level People’s Committee of the locality in which the foreign science and technology organization intends to base its representative office or branch, and concerned ministries or agencies to give written opinions on the following matters:

a/ The operation (if any) of the foreign science and technology organization in the locality and opinions of the provincial-level People’s Committee of the locality in which the foreign science and technology organization intends to base its representative office or branch;

b/ The operation of the foreign science and technology organization in programs or projects related to ministries or branches (if any);

c/ Verification of the personal records of the expected head of the representative office or branch (when necessary).

3. In the course of examining dossiers of application for licenses or for amendment, supplementation or extension of licenses, the Ministry of Science and Technology may request foreign science and technology organizations to produce relevant documents for proving any unclear information in their dossiers.

4. In the course of examining a dossier of application for amendment, supplementation or extension of a license, if considering it necessary, within 10 working days after receiving the dossier, the Ministry of Science and Technology shall assume the prime responsibility for, and coordinate with concerned ministries and branches in, forming a team to visit the representative office or branch for verification.

5. Foreign science and technology organizations which register for the establishment of their representative offices or branches in Vietnam shall pay charges and fees under the Finance Ministry’s Circular No. 166/2010/TT-BTC of October 27, 2010, guiding the rates and the collection, remittance and use management of fees for appraisal of conditions for scientific and technological activities and fees for grant of licenses for establishment of Vietnam-based representative offices or branches of foreign science and technology organizations.

Article 11. Rights and obligations of Vietnam-based representative offices and branches of foreign science and technology organizations

1. Vietnam-based representative offices and branches of foreign science and technology organizations have the rights and obligations specified in Clause 1, Article 13 and Clause 3, Article 14 of the Government’s Decree No. 06/2005/ND-CP of January 19, 2005, providing for the establishment and operation of representative offices of foreign research and cooperation institutions in Vietnam.

2. Vietnam-based representative offices and branches of foreign science and technology organizations shall make annual reports on their operation in Vietnam according to the form provided in Appendix V to this Circular (not printed herein) and send them to the Ministry of Science and Technology and, when requested, report, supply documents or explain matters concerning their operation to the Ministry of Science and Technology.

Article 12. Recruitment and management of employees of Vietnam-based representative offices or branches of foreign science and technology organizations

1. The number of foreign and Vietnamese employees at a Vietnam-based representative office or branch of a foreign science and technology organization is the number of regular officers and employees working during the validity term of its establishment license, which must not exceed the number stated in its license.

2. In case a foreign science and technology organization establishes in Vietnam a representative office or branch under a research or cooperation program or project with a partner being a Vietnamese ministry, branch or provincial-level People’s Committee, the written agreement on the program or project between involved parties must clearly state the number of foreign employees and their working duration at the Vietnam-based representative office or branch. Such agreement will serve as a basis for the Ministry of Science and Technology to grant a license for the establishment of the Vietnam-based representative office or branch of the foreign science and technology organization.

3. The recruitment of foreigners to work for Vietnam-based representative offices or branches of foreign science and technology organizations complies with the law on recruitment and management of foreigners working in Vietnam.

4. Within 10 days after the occurrence of any changes in their employees during their operation in Vietnam, Vietnam-based representative offices or branches of foreign science and technology organizations shall send a report thereon, enclosed with copies of relevant documents, to the Registration Office.

Vietnam-based representative offices or branches of foreign science and technology organizations that wish to adjust the number of their foreign employees must obtain permission of competent state agencies.

Chapter IV

ORGANIZATION OF IMPLEMENTATION

Article 13. Transitional provisions

1. The Registration Office shall scrutinize certificates of registration of scientific and technological activities already granted before the effective date of this Circular and notify in writing foreign-invested science and technology organizations to  register for the re-grant of certificates of registration of scientific and technological activities under this Circular.

Such notice of the Science and Technology Ministry may be sent at most thrice, with an interval of 30 days between two times. Past this time limit, if a foreign-invested science and technology organization still fails to register for the re-grant of certificates of registration of scientific and technological activities under this Circular, the Registration Office shall propose the Minister of Science and Technology to carry out procedures to cancel its certificate of registration of scientific and technological activities according to regulations.

2. Foreign-invested science and technology organizations which were established and registered before the effective date of this Circular shall carry out procedures for registration for the re-grant of certificates of registration of scientific and technological activities under this Circular.

a/ In case of registration of change of the registered capital structure (upon the foreign party’s withdrawal of capital or transfer of capital to the Vietnamese party), the foreign-invested science and technology organization shall send a report thereon to the Registration Office, enclosed with a record of the founding council’s or founders’ meeting approving the foreign party’s capital withdrawal or transfer.

After no longer having any foreign capital, the concerned science and technology organization shall register its operation with the provincial-level People’s Committee of the locality in which it is based under Point b, Clause 3, Article 8 of Circular No. 02.

b/ In case the capital portion contributed by the foreign party is kept unchanged, the foreign-invested science and technology organization shall make a complete dossier for re-registration under this Circular.

Within 15 working days after receiving a valid dossier, the Registration Office shall propose the Minister of Science and Technology to re-grant a certificate of registration of scientific and technological activities, make according to form provided in Appendix II to this Circular - not printed herein, and, at the same time, issue a decisions recognizing the organization and approving its organization and operation charter.

3. Vietnam-based representative offices and branches of foreign science and technology organizations which have been granted establishment licenses may continue their operation in accordance with their granted licenses.

Article 14. Effect

1. This Circular takes effect 45 days from the date of its signing.

2. To annul Point a, Clause 2, Article 1 of Circular No. 02 on the establishment of foreign-invested science and technology organizations.

Any difficulties and problems arising in the course of implementation should be reported in writing to the Ministry of Science and Technology for consideration and decision.-

For the Minister of Science and Technology
Deputy Minister
NGUYEN QUAN

Appendix I

BASIC CONTENTS OF THE OPERATION CHARTER OF A FOREIGN-INVESTED SCIENCE AND TECHNOLOGY ORGANIZATION

(Promulgated together with the Science and Technology Minister’s Decision No. 01/2011/TT-BKHCN of March 16, 2011)

The operation charter of a foreign-invested science and technology organization must contain the following basic details:

Chapter I. General provisions

The name of the foreign-invested science and technology organization: its Vietnamese name and foreign-language name (if any), its abbreviated name in Vietnamese or foreign language (if any).

Head office: address, telephone number of fax number.

Legal grounds for organization and operation: the Law on Science and Technology; the Government’s Decree No. 81/2002/ND-CP of October 17, 2002, detailing a number of articles of the Law on Science and Technology, the Government’s Decree No. 80/2010/ND-CP of July 14, 2010, providing for foreign cooperation and investment in science and technology and other relevant legal documents.

Chapter II. Fields of operation, functions, tasks and powers

Fields of operation, functions, tasks and powers of a science and technology organization are determined according to the objectives and tasks decided by its founding organizations or individuals in compliance with Article 4 of the Government’s Decree No. 80/2010/ND-CP of July 14, 2010, on foreign cooperation and investment in science and technology and other Vietnam’s laws.

Chapter III. Organizational apparatus

The organizational structure, modes of appointment and relief from duty and tasks and powers of titles in the leading apparatus and other bodies (the founding council, the institution/center council, scientific council or advisory council) of the science and technology organization.

Chapter IV. Physical and technical foundations and finance

Provisions on the origin of the organization’s physical and technical foundations, registered capital, capital-contributing parties, capital contribution proportions, principles for capital increase and decrease and other financial principles.

Chapter V. Dissolution

Specific provisions on conditions, sequence and procedures for dissolution.

Chapter VI. Implementation provisions

The effective time, conditions for amendment and supplementation to the charter.-