VietnameseCircular No. 08/1999/TT-BTP dated February 13, 1999 of the Ministry of Justice guiding the implementation of a number of provisions of the Government’s Decree No. 92/1998/ND-CP dated November 10, 1998 on legal consultancy practice by foreign lawyers’ organizations in Vietnam
ATTRIBUTE
Circular No. 08/1999/TT-BTP dated February 13, 1999 of the Ministry of Justice guiding the implementation of a number of provisions of the Government’s Decree No. 92/1998/ND-CP dated November 10, 1998 on legal consultancy practice by foreign lawyers’ organizations in Vietnam
| Issuing body: | Ministry of Justice | Effective date: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Official number: | 08/1999/TT-BTP | Signer: | Nguyen Dinh Loc |
| Type: | Circular | Expiry date: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Issuing date: | 13/02/1999 | Effect status: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Fields: | Justice |
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THE MINISTRY OF JUSTICE ------- | SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom – Happiness ---------- |
No: 08/1999/TT-BTP | Hanoi, February 13, 1999 |
CIRCULAR
GUIDING THE IMPLEMENTATION OF A NUMBER OF PROVISIONS OF THE GOVERNMENT’S DECREE No. 92/1998/ND-CP OF NOVEMBER 10, 1998 ON LEGAL CONSULTANCY PRACTICE BY FOREIGN LAWYERS’ ORGANIZATIONS IN VIETNAM
Pursuant to Decree No. 38/CP of June 4, 1993 of the Government on the functions, tasks, powers and organizational structure of the Ministry of Justice;
Pursuant to Articles 36 and 48 of Decree No. 92/1998/ND-CP of November 10, 1998 of the Government on legal consultancy practice by foreign lawyers’ organizations in Vietnam (hereafter referred to as the Decree for short);
The Ministry of Justice hereby guides the implementation of a number of provisions of the Decree as follows:
1. Regarding the foreign lawyers’ organizations and foreign lawyers
1.1. Foreign lawyers’ organizations mentioned in the Decree are lawyers’ organizations lawfully established and operating in foreign countries.
1.2. Foreign lawyers mentioned in the Decree are foreigners, overseas Vietnamese having the lawyers’ practice licenses granted by the competent agencies and/or organizations of foreign countries.
The lawyers’ practice license comprises a practice certificate, a lawyer’s card or other paper(s) certifying the lawyer’s status.
2. Regarding the conditions for being licensed to set up branches
2.1. Foreign lawyers’ organizations that file applications for licenses to set up branches in Vietnam and meet all the conditions prescribed in Article 6 of the Decree shall be granted licenses to set up their branches in Vietnam (hereafter referred to as the licenses for short).
2.2. Foreign clients conducting investment and/or business activities in Vietnam as specified at Point 2, Article 6 of the Decree include:
a/ Foreign individuals and organizations that are conducting investment and/or business activities in Vietnam; and
b/ Foreign individuals and organizations that are going to conduct investment and/or business activities in Vietnam.
3. Regarding the licensing procedures
3.1. A foreign lawyers’ organization wishing to set up its branch in Vietnam shall have to submit to the Ministry of Justice a dossier set. The dossier comprises:
a/ An application for license to set up branch with the signature of the head of such foreign lawyers’ organization;
b/ The papers specified in Article 11 of the Decree.
If the papers specified in Article 11 of the Decree are made in foreign language(s), such foreign-language documents must be enclosed with the Vietnamese translations thereof, and such translations must be certified by the Vietnamese notary public or Vietnamese diplomatic missions or consular offices in foreign countries.
3.2. In cases where a foreign lawyers’ organization wishes to set up two (02) branches, it shall have to fill the separate application procedures for each branch.
3.3. The appellation of a foreign lawyers’ organization’s branch must include the name of such foreign lawyers’ organization and the name of the province or centrally-run city where the branch is permitted to be set up.
3.4. The Department for Management of Lawyers and Legal Consultation under the Ministry of Justice shall receive and verify dossiers applying for licenses to set up branches of foreign lawyers’ organizations.
4. Regarding the practice registration
4.1. Within 60 days after it is licensed, a branch shall have to register its practice at the Justice Service of the province or centrally-run city (hereafter referred to as the provincial/municipal Justice Service), where such branch is permitted to situate its head office.
Each branch shall have only one office in the province or centrally-run city where it is licensed to be set up.
4.2. When registering its practice, a branch shall have to file an application for practice registration. The application must be enclosed with the following papers:
a/ The copy of the license granted by the Ministry of Justice;
b/ The copy of the contract for renting house(s) to be used as the branch’s head office, with certification by the State notary public or the People’s Committee of the district or provincial capital of the concerned province or centrally-run city.
4.3. Within 15 days after receiving the complete and valid dossiers, the provincial/municipal Justice Service shall have to complete the registration procedures and grant the practice registration paper to the branch.
The practice registration paper shall be made in three copies: one shall be granted to the branch, one sent to the Ministry of Justice and another kept at provincial/municipal Justice Service.
4.4. Past the time limit prescribed in Article 14 of the Decree, the practice registration shall be made only if there is a justifiable reason accepted by the Ministry of Justice. The branch shall have to file an application to the Ministry of Justice clearly stating the reason(s) for the delay in making the practice registration.
The Ministry of Justice shall consider the applications for late practice registration only if such applications are filed within 15 days after the prescribed time limit expires.
Within 15 days after receiving the applications, the Ministry of Justice shall consider and notify in writing of its approval or disapproval of the late practice registration.
5. Regarding the procedures for modifying the license contents or extending the branches’ operation duration
5.1. A branch that wishes to modify the content of its license shall have to file an application to the Ministry of Justice, clearly stating the contents to be modified and the reason(s) therefor.
5.1.1. The branch may alter its appellation if the name of the foreign lawyers’ organization has changed according to provisions of law of the country where such lawyers’ organization is headquartered.
5.1.2. In cases where a branch relocates its office from one province or centrally-run city to another, it shall have to fill in the procedures applying for modification of its license content according to the provisions of Article 16 of the Decree.
Within 30 days after the Ministry of Justice decides to allow the relocation of the branch’s office, such branch shall have to fill in the procedures for practice registration at the Justice Service of the province or centrally-run city where the new office is to be located according to provisions of Article 14 of the Decree and the guidance at Point 4 of this Circular.
In cases where the branch office is relocated within a province or centrally-run city, where the branch is licensed to be set up, the branch shall have to notify the location of its new office and submit the copy of the contract for renting new office to the provincial/municipal Justice Service before relocating its office, without having to fill in the procedures applying for modification of its license content according to provisions of Article 16 of the Decree.
5.1.3. In case of application for the replacement of the branch head, the application must be enclosed with a document of the concerned lawyers’ organization appointing another lawyer as the branch head.
5.1.4. The change in the list of the branch’s lawyers shall include the addition of new lawyers to the lawyers’ list and withdrawal of lawyers’ names therefrom.
In case of application for the addition of new lawyers to a branch’s lawyers’ list, the application must be enclosed with the professional resumes and judicial backgrounds (if any), and the copies of the practice licenses of the lawyers to be added. The addition of lawyers into the lawyers’ list must be approved by the Ministry of Justice and registered at the provincial/municipal Justice Service.
In case of withdrawal of lawyers’ names from the lawyers’ list, a branch shall only have to notify it to the local provincial/municipal Justice Service after obtaining the Ministry of Justice’s written approval.
5.1.5. Within 30 days after receiving the complete and valid papers, the Ministry of Justice shall decide to permit or refuse the modification of the content of the branch’s license.
The decision permitting the modification of the license content shall be made in two copies, one shall be sent to the concerned branch, another to the Justice Service of the province or centrally-run city where the branch office is located.
5.2. A branch wishing to have its operation duration extended shall, within 60 days before the expiry of the operation duration stated in its license, have to submit to the Ministry of Justice a dossier comprising:
a/ An application for extension of operation duration of the branch with signature of the head of the concerned foreign lawyers’ organization;
b/ A report on the branch’s operation in Vietnam.
The Ministry of Justice shall request in writing the People’s Committee of the province or centrally-run city (hereafter referred to as the provincial People’s Committee), where the branch office is located to give its comments regarding the extension of the branch’s operation duration.
Within 15 days after receiving the above-said written request from the Ministry of Justice, the provincial People’s Committee shall send its written comments to the Ministry of Justice on the extension of the branch’s operation duration.
After getting the provincial People’s Committee’s comments, the Ministry of Justice shall agree or refuse to extend the branch’s operation duration. The decision on extension of operation duration shall be made in three copies: one shall be granted to the branch, one sent to the People’s Committee of the province where the branch office is located, and another kept at the Ministry of Justice.
The registration of the operation duration extension shall comply with the provisions of Article 17 of the Decree.
6. Regarding the rights and obligations of branches and foreign lawyers
6.1. A branch may sign contracts for legal consultancy cooperation on long-term or case-by-case basis with Vietnamese legal consultancy organizations in order to provide its clients with consultations on Vietnamese legislation.
6.1.1. The consultation on Vietnamese legislation include:
a/ Guidance and explanation on provisions of Vietnamese law;
b/ Suggestions on the application of Vietnamese law;
c/ Compilation of contracts and other documents containing the application of provisions of Vietnamese law;
d/ Other forms of consultation on Vietnamese law.
6.1.2. Organizations practicing consultation on Vietnamese law are those permitted to be established and practicing legal consultation under the provisions of Vietnamese law.
6.1.3. A long-term legal consultation cooperation contract shall be made in four copies, each contracting party shall keep one copy, one sent to the provincial/municipal Justice Service and another sent to the Ministry of Justice. The contract copies must be sent to the provincial/municipal Justice Service and the Ministry of Justice within 15 days after the contract is signed.
6.2. The branch must have at least one foreign lawyer working permanently at its Vietnam office. In cases where a branch has no foreign lawyer working in Vietnam for 30 consecutive days or more, it shall have to notify this in writing to the provincial/municipal Justice Service and the Ministry of Justice.
6.3. Within 15 days after it recruits laborers according to provisions of Article 24 of the Decree and admits legal consultation apprentices according to provisions of Article 29 of the Decree, the branch shall have to notify the provincial/municipal Justice Service of the list of such laborers and legal consultancy apprentices together with the labor contracts.
6.4. Lawyers of the branch must have professional liability insurance for their legal consultation practice in Vietnam.
6.4.1. The branch may buy professional liability insurance for its foreign lawyers working in Vietnam from an insurance company licensed to operate in Vietnam.
6.4.2. In cases where a foreign lawyers’ organization has procured professional liability insurance for its lawyers practicing in Vietnam, its branch shall not have to buy professional liability insurance in Vietnam but only have to produce to the Ministry of Justice papers evidencing such insurance.
6.5. The branch may have its own seal with the branch’s name clearly inscribed thereon. The management and use of the seal shall comply with the provisions of Vietnamese law.
7. Regarding the reporting and inspection regimes
7.1. Biannually and annually, the branch shall have to submit reports on its organization and operation to the provincial/municipal Justice Service and the Ministry of Justice before July 15th and January 15th every year.
7.2. When necessary, the Ministry of Justice shall inspect or coordinate with the concerned ministries and branches, and the provincial/municipal People’s Committees in carrying out the inspection.
The inspection shall be notified to the target branch 7 days before it is conducted, except for cases of unexpected inspections.
7.3. The branches shall have to strictly abide by the inspection decisions and create favorable conditions for the inspection.
8. Regarding the tasks and powers of the provincial/municipal Justice Service
8.1. The provincial/municipal Justice Service shall monitor the admission and employment of the legal consultation apprentices, Vietnamese and foreign staff members of the branch.
In cases where a branch is detected having admitted or employed consultation apprentices, Vietnamese staff members and/or foreign staff members in contravention of the provisions of Vietnamese law, the provincial/municipal Justice Service shall be entitled to request the concerned branch to stop such violation and propose the competent State agencies to handle the case.
8.2. The provincial/municipal Justice Service shall monitor the probation of the legal consultation apprentices at the branch.
Annually, the legal consultation apprentices report in writing to the provincial/municipal Justice Services on their probation process and results. In case of necessity, the provincial/municipal Justice Services may request the branches to report on such probation.
8.3. The provincial/municipal Justice Service shall biannually and annually inspect the situation of organization and operation of the branches in its locality. When conducting an inspection, the provincial/municipal Justice Service shall have to notify the target branch thereof 7 days in advance.
In cases where it deems necessary to conduct an unexpected inspection, the provincial/municipal Justice Service shall have to consult the Ministry of Justice and may conduct such inspection only after obtaining the latter’s consent.
8.4. Biannually and annually, the provincial/municipal Justice Services shall have to send their reports to the Ministry of Justice on the organization and operation of the branches within their respective assigned competence and management scope. The provincial/municipal Justice Services shall also report problems arising in the course of management to the Ministry of Justice for direction, and propose solutions thereto.
9. This Circular takes effect from February 28, 1999 and replaces Circular No.791b/TT-LSTVPL of September 8, 1995 of the Ministry of Justice guiding the implementation of the Regulation on legal consultation practice by foreign lawyers’ organizations in Vietnam, issued together with Decree No.42-CP of July 8, 1995 of the Government.
THE MINISTRY OF JUSTICE MINISTER Nguyen Dinh Loc |
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