Decree No. 09/2018/ND-CP dated January 15, 2018 of the Government detailing the Commercial Law and the Law on Foreign Trade Management regarding goods purchase and sale and related activities of foreign investors and foreign-invested economic organizations in Vietnam

DECREE

Detailing the Commercial Law and the Law on Foreign Trade Management regarding goods purchase and sale and related activities
of foreign investors and foreign-invested economic organizations in Vietnam^[1]

Pursuant to the June 19, 2015 Law on Organization of the Government;

Pursuant to the June 14, 2005 Commercial Law;

Pursuant to the June 12, 2017 Law on Foreign Trade Management;

Pursuant to the November 26, 2014 Law on Investment;

Pursuant to the November 22, 2016 Law Amending and Supplementing Article 6 of and Appendix 4 to the Law on Investment regarding the List of sectors and trades subject to conditional investment and business;

At the proposal of the Minister of Industry and Trade;

The Government promulgates the Decree detailing the Commercial Law and the Law on Foreign Trade Management regarding goods purchase and sale and related activities of foreign investors and foreign-invested economic organizations in Vietnam.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree details the Commercial Law and the Law on Foreign Trade Management regarding goods purchase and sale and related activities of foreign investors and foreign-invested economic organizations in Vietnam.

Article 2. Subjects of application

This Decree applies to foreign investors, foreign-invested economic organizations, and agencies, organizations and individuals involved in goods purchase and sale and related activities of foreign investors and foreign-invested economic organizations in Vietnam.

Article 3. Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Goods purchase and sale and related activities include:

a/ Exercising the right to export;

b/ Exercising the right to import;

c/ Exercising the right to distribution;

d/ Providing commercial assessment services;

dd/ Providing logistics services;

e/ Leasing goods, excluding financial lease;

g/ Providing trade promotion services, excluding advertising services;

h/ Providing commercial intermediary services;

i/ Providing e-commerce services;

k/ Providing goods and service bidding services.

2. Right to export means the right to purchase goods in Vietnam for export, covering the right to undersign exports declarations in order to carry out and take responsibility for export-related procedures. The right to export does not cover the right to purchase goods from non-traders for export, unless otherwise prescribed by Vietnamese law or a relevant treaty to which Vietnam is a contracting party.

3. Right to import means the right to import goods from abroad into Vietnam for sale to traders that have the right to distribute such goods in Vietnam, covering the right to undersign imports declarations in order to carry out and take responsibility for import-related procedures. The right to import does not cover the right to organize or participate in a network to distribute goods in Vietnam, unless otherwise prescribed by Vietnamese law or a relevant treaty to which Vietnam is a contracting party.

4. Distribution includes wholesale, retail, sale agency and franchise activities.

5. Right to distribution means the right to directly carry out distribution activities.

6. Wholesale means the sale of goods to wholesale traders, retail traders and other traders and organizations, excluding retail activities.

7. Retail means the sale of goods to individuals, households and other organizations for consumption purpose.

8. Retail sales outlet means a place where retail activities are carried out.

9. Retail sales outlet in addition to the first retail sales outlet means a retail sales outlet established in Vietnam by a foreign investor or a foreign-invested economic organization that already has a retail sales outlet in Vietnam, or established under the same name or brand with at least one retail sales outlet by a foreign-invested economic organization in Vietnam.

10. Convenience store means a place where fast-moving consumer goods are retailed, such as food, drinks, non-prescription pharmaceuticals, dietary supplements and healthy products, cosmetics, and other products for daily consumption.

11. Mini mart means a retail sales outlet which is under 500 m² in area and is classified as general supermarket as prescribed by law.

12. Trade center means a place accommodating many retail sales and service provision outlets which are concentrated and linked in one architectural work or two or more adjacent architectural works.

13. Licensing agency means the agency that grants business licenses or licenses for establishing retail sales outlets as defined in Clauses 1 and 2, Article 8 of this Decree.

14. E-commerce service means a commercial activity thereby the service provider develops an e-commerce website to provide an environment for traders and other organizations and individuals to carry out trade promotion, goods sale or service provision activities.

15. Database means the database on goods purchase and sale and related activities of foreign investors and foreign-invested economic organizations in Vietnam, which is available at the Ministry of Industry and Trade’s portal at http://www.moit.gov.vn.

16. Financial document may be any of the documents on financial support commitment of the parent company or a finance institution or guarantee for financial capacity of a foreign investor or foreign-invested economic organization; or another document proving the financial capacity of a foreign investor or foreign-invested economic organization.

17. Document on the location of a retail sales outlet may be one of the following: memorandum of understanding or agreement on the location lease or document proving a foreign-invested economic organization’s right to use such location for establishing a retail sales outlet, enclosed with relevant papers.

Article 4. Application of treaties and relevant laws

1. Foreign investors and foreign-invested economic organizations that carry out goods purchase and sale and related activities in Vietnam shall comply with this Decree; if a relevant treaty contains provisions different from those of this Decree, such treaty shall prevail.

2. Foreign-invested economic organizations that carry out goods purchase and sale and related activities in Vietnam shall comply with not only this Decree but also other relevant regulations.

Article 5. Grant of business licenses or licenses for establishing retail sales outlets

1. Business licenses shall be granted to foreign-invested economic organizations for:

a/ Exercising the right to retail goods, excluding the goods specified at Point c, Clause 4, Article 9 of this Decree;

b/ Exercising the right to import and the right to wholesale the goods specified at Point b, Clause 4, Article 9 of this Decree;

c/ Exercising the right to retail the goods specified at Point c, Clause 4, Article 9 of this Decree;

d/ Providing logistics services, except logistics service sub-sectors for which Vietnam has market opening commitments in treaties to which the country is a contracting party;

dd/ Leasing goods, excluding financial lease and lease of construction equipment requiring operators;

e/ Providing trade promotion services, excluding advertising services;

g/ Providing commercial intermediary services;

h/ Providing e-commerce services;

i/ Providing goods and service bidding services.

2. Licenses for establishing retail sales outlets shall be granted to foreign-invested economic organizations to establish retail sales outlets.

3. Foreign-invested economic organizations may apply for licenses for establishing retail sales outlets after they obtain business licenses and documents on locations for establishing retail sales outlets.

4. In case the location for establishing the first retail sales outlet is in the same province or centrally run city with its head office, a foreign-invested economic organization may apply for a business license simultaneously with a license for establishing the first retail sales outlet. The dossier and order for applying for these licenses are prescribed in Article 20 of this Decree.

5. Economic organizations defined at Points b and c, Clause 1, Article 23 of the Law on Investment must satisfy the prescribed conditions and shall carry out procedures for applying for business licenses if they wish to carry out activities requiring business licenses or procedures for applying for licenses for establishing retail sales outlets if they wish to establish retail sales outlets in accordance with this Decree.

6. Economic organizations having retail sales outlets in Vietnam that become foreign-invested economic organizations after receiving contributed capital, and economic organizations defined at Points b and c, Clause 1, Article 23 of the Law on Investment shall carry out procedures for applying for business licenses or licenses for establishing retail sales outlets.

The dossier and order for applying for business licenses in this case are prescribed in Articles 12 and 13 of this Decree.

The dossier and order for applying for licenses for establishing retail sales outlets to permit retail sales outlets to resume their operation are prescribed in Article 38 of this Decree.

Article 6. Cases where business licenses are not required

1. Except for the activities for which business licenses are required under Clause 1, Article 5 of this Decree, foreign-invested economic organizations and economic organizations defined at Points b and c, Clause 1, Article 23 of the Law on Investment may carry out goods purchase and sale and related activities prescribed in Clause 1, Article 3 of this Decree after registering these activities in relevant papers in accordance with the Law on Investment and Law on Enterprises.

2. In case foreign investors other than those from the countries or territories that have acceded to treaties to which Vietnam is a contracting party and which contain market opening commitments register to carry out goods purchase and sale and related activities prescribed in Clause 1 of this Article, competent state agencies shall consult the Ministry of Industry and Trade before granting or modifying registrations to carry out such activities in relevant papers in accordance with the Law on Investment and Law on Enterprises.

Article 7. Carrying out goods purchase and sale and related activities

1. Foreign-invested economic organizations that have the right to export may export goods purchased in Vietnam; and goods processed in Vietnam under their order and goods lawfully imported into Vietnam abroad and into exclusive customs areas on the following conditions:

a/ The goods are outside the list of goods banned from export; list of goods suspended from export; or list of goods ineligible for export under treaties to which Vietnam is a contracting party;

b/ For those on the list of goods to be exported under licenses or certain conditions, foreign-invested economic organizations must have such licenses or fully satisfy the law-prescribed conditions.

2. Foreign-invested economic organizations that have the right to import may import goods from abroad and exclusive customs areas into Vietnam on the following conditions:

a/ The goods are outside the list of goods banned from import; list of goods suspended from import; or list of goods ineligible for import under treaties to which Vietnam is a contracting party;

b/ For those on the list of goods to be imported under licenses or certain conditions, foreign-invested economic organizations must have such licenses or fully satisfy the law-prescribed conditions.

3. Procedures for exporting or importing goods to exercise the right to export or the right to import must comply with the law on export and import management.

4. Foreign-invested economic organizations that have the right to wholesale or retail may wholesale or retail goods produced in Vietnam and goods lawfully imported into Vietnam.

5. In conditional investment and business sectors, foreign-invested economic organizations may carry out business activities when fully satisfying the law-prescribed conditions.

Article 8. Agencies granting business licenses or licenses for establishing retail sales outlets

1. Provincial-level Departments of Industry and Trade of the localities where head offices of foreign-invested economic organizations are located shall grant, re-grant, modify and revoke business licenses of these organizations.

2. Provincial-level Departments of Industry and Trade of the localities where retail sales outlets of foreign-invested economic organizations are based shall grant, re-grant, modify, extend and revoke licenses for establishing retail sales outlets.

3. Licensing agencies shall:

a/ Consult the Ministry of Industry and Trade and related line ministries before granting or modifying business licenses for the activities prescribed at Point c, Clause 1, Article 5 of this Decree;

b/ Consult the Ministry of Industry and Trade before granting or modifying business licenses for the activities prescribed at Points b, d, dd, e, g, h and i, Clause 1, Article 5 of this Decree;

c/ Consult the Ministry of Industry and Trade before granting or modifying licenses for establishing retail sales outlets.

Chapter II

BUSINESS LICENSES

Article 9. Conditions for grant of business licenses

1. For foreign investors of the countries or territories that have acceded to treaties to which Vietnam is a contracting party and which contain market opening commitments for goods purchase and sale and related activities

a/ Satisfying the market access conditions prescribed in the treaties to which Vietnam is a contracting party;

b/ Having financial plans for the activities to be licensed;

c/ Owing no overdue tax debts, if they have operated in Vietnam for  1 year or more.

2. For foreign investors other than those of the countries or territories having acceded to treaties to which Vietnam is a contracting party

a/ Satisfying the conditions prescribed at Points b and c, Clause 1 of this Article;

b/ Satisfying the following criteria:

- Complying with relevant specialized laws;

- Conforming with the level of competitiveness of domestic enterprises operating in the same area;

- Being able to create jobs for domestic workers;

- Being able to contribute revenues to the state budget.

3. To provide services not yet included in the market opening commitments under treaties to which Vietnam is a contracting party, foreign investors must satisfy the conditions prescribed in Clause 2 of this Article.

4. To trade in goods not yet included in the market opening commitments under treaties to which Vietnam is a contracting party, such as lubricating oils and greases; rice; sugar; video recordings; and books, newspapers and magazines

a/ Foreign-invested economic organizations must satisfy the conditions prescribed in Clause 2 of this Article;

b/ For lubricating oils and greases, the right to import or wholesale may be granted to foreign-invested economic organizations that carry out one of the following activities:

- Producing lubricating oils and greases in Vietnam;

- Producing or distributing under a license in Vietnam machinery, equipment and goods using lubricating oils and greases of specific types.

c/ For rice; sugar; video recordings; and books, newspapers and magazines, the right to retail may be granted to foreign-invested economic organizations that have retail sales outlets being supermarkets, mini marts or convenience stores to retail these goods in such outlets.

Article 10. Bases for grant of business licenses

The Ministry of Industry and Trade or a line ministry shall base itself on the following conditions to grant a business license in the case prescribed in Clause 2, 3 or 4, Article 9 of this Decree:

1. Conformity with the regional or national sectoral development master plan or strategy.

2. Vietnam’s market opening negotiation process.

3. Vietnam’s market opening demand.

4. Vietnam’s strategy on cooperation with foreign partners.

5. Diplomatic relations, national security, and social order and safety, for foreign investors other than those of the countries or territories that have acceded to treaties to which Vietnam is a contracting party.

Article 11. Contents and validity period of business licenses

1. Contents of a business license (Form No. 11 in the Appendix to this Decree)

a/ Name and code, address of head office, and at-law representative of the enterprise;

b/ Owners, capital contributors, and founding shareholders;

c/ Goods to be distributed;

d/ Goods purchase and sale-related activities;

dd/ Other contents.

2. Validity period of business licenses

a/ The validity period of a business license in the case prescribed in Clause 2, 3 or 4, Article 9 of this Decree is 5 years;

b/ The validity period of a re-granted business license will equal to the remaining validity period of the old one.

Article 12. Dossier of application for a business license

A dossier must comprise:

1. An application for a business license (Form No. 01 in the Appendix to this Decree).

2. A written explanation stating:

a/ The satisfaction of the conditions for grant of a business license as prescribed in Article 9 of this Decree;

b/ The business plan, which must describe the contents and method of carrying out business activities; the business and market development plan; labor demand; and evaluation of the business plan’s socio-economic impacts and efficiency;

c/ The financial plan, which must state business results based on the audited financial statement of the latest year, for a foreign-invested economic organization established in Vietnam for 1 year or more; and explain funds, funding sources and fundraising plan, enclosed with financial documents;

d/ The business situation of goods purchase and sale and related activities; financial state of the foreign-invested economic organization by the time of application, in the case prescribed in Clause 6, Article 5 of this Decree.

3. A tax office’s document proving that the foreign-invested economic organization owes no overdue tax debts.

4. Copies of the enterprise registration certificate; and of the investment registration certificate of the project to carry out goods purchase and sale and related activities (if any).

Article 13. Order of application for a business license

1. A dossier shall be submitted directly or sent by post or online (if possible) to the licensing agency.

2. Number of dossier sets

- One set, in case of applying for a business license for carrying out the activities prescribed at Point a, Clause 1, Article 5 of this Decree;

- Two sets, in case of applying for a business license for carrying out the activities prescribed at Point b, d, dd, e, g, h or i, Clause 1, Article 5 of this Decree;

- Three sets, in case of applying for a business license for carrying out the activities prescribed at Point c, Clause 1, Article 5 of this Decree.

3. Within 3 working days after receiving a dossier, the licensing agency shall examine it and may request modification and supplementation of the dossier if it is incomplete and invalid.

4. Within 10 working days after receiving a complete and valid dossier, the licensing agency shall inspect the applicant’s satisfaction of relevant conditions prescribed in Article 9 of this Decree.

a/ If the applicant dissatisfies the prescribed conditions, the licensing agency shall issue a written reply, stating the reason;

b/ If the applicant satisfies the prescribed conditions

- The licensing agency shall grant a business license for carrying out the activities prescribed at Point a, Clause 1, Article 5 of this Decree; in case of refusal, it shall issue a written reply, stating the reason;

- The licensing agency shall send the dossier, enclosed with a written request for opinion, to the Ministry of Industry and Trade or a related line ministry under Point a or b, Clause 3, Article 8 of this Decree (made according to Form No. 09 in the Appendix to this Decree).

5. Within 15 days after receiving a dossier, the Ministry of Industry and Trade or line ministry shall, in pursuance to Article 10 of this Decree, issue a written approval of the grant of a business license; in case of refusal, it shall issue a written reply stating the reason (made according to Form No. 10 in the Appendix to this Decree).

6. Within 3 working days after receiving a written approval from the Ministry of Industry and Trade or related line ministry, the licensing agency shall grant a business license. In case the Ministry of Industry and Trade or related line ministry issues a written refusal, the licensing agency shall issue a written reply stating the reason.

Article 14. Modification of business licenses

A business license shall be modified in case of any change in one of the contents prescribed in Clause 1, Article 11 of this Decree.

Article 15. Dossier for modification of a business license

A dossier must comprise:

1. A written request for modification of a business license (made according to Form No. 02 in the Appendix to this Decree).

2. A copy of the enterprise registration certificate stating the modified content, in case of change in the content prescribed at Point a, Clause 1, Article 11 of this Decree, except the case of relocation of head office prescribed in Clause 1, Article 17 of this Decree.

3. The documents prescribed in Clauses 2, 3 and 4, Article 12 of this Decree, in case of modification of the contents prescribed at Points b, c, d and dd, Clause 1, Article 11 of this Decree.

Article 16. Order of modification of a business license

1. A dossier shall be sent within 10 working days from the date of grant of the enterprise registration certificate stating the modified contents prescribed at Points a and b, Clause 1, Article 11 of this Decree.

2. The order of modification must comply with Article 13 of this Decree.

3. Within 5 working days after receiving the modified business license, the foreign-invested economic organization concerned shall return the old one to the licensing agency.

Article 17. Re-grant of business licenses

A business license shall be re-granted in the following cases:

1. Relocation of the head office from a province or centrally run city to another.

2. The license is lost or damaged.

Article 18. Dossier for re-grant of a business license

A dossier must comprise:

1. A written request for re-grant of a business license (made according to Form No. 03 in the Appendix to this Decree).

2. A copy of the enterprise registration certificate, in case of license re-grant prescribed in Clause 1, Article 17 of this Decree.

Article 19. Order of re-grant of a business license

1. A dossier shall be sent within 10 working days from the date of grant of the enterprise registration certificate stating the modified content in case of license re-grant prescribed in Clause 1, Article 17 of this Decree.

2. A set of dossier shall be submitted directly or sent by post or online (if possible) to the licensing agency of the place to which the applicant’s head office is relocated.

3. Within 3 working days after receiving the dossier, the licensing agency shall examine it and may request modification and supplementation of the dossier if it is incomplete and invalid.

4. Within 5 working days after receiving a complete and valid dossier, the licensing agency shall re-grant a business license; in case of refusal, it shall issue a written reply stating the reason. The licensing agency shall re-grant a business license in the case prescribed in Clause 1, Article 17 of this Decree, and send 1 copy thereof to the licensing agency of the place from which the applicant’s head office is relocated for updating into the relevant database.

5. Within 5 working days after being re-granted a business license, the foreign-invested economic organization concerned shall, in the case prescribed in Clause 1, Article 17 of this Decree, return the old one to the licensing agency of the place from which its head office is relocated.

Article 20. Dossier and order for simultaneous application for a business license and a license for establishing a retail sales outlet

1. A dossier must comprise:

a/ The documents prescribed in Articles 12, and Clauses 1 and 2, Article 27, of this Decree;

b/ The investment registration certificate of the project to establish a retail sales outlet (if any).

2. The order of simultaneous application for a business license and a license for establishing a retail sales outlet must comply with Articles 13 and 28 of this Decree.

Article 21. Refusal to grant business licenses

In addition to the cases of dissatisfaction of the conditions prescribed in this Decree, the licensing agency may refuse to grant a business license in the following cases:

1. The operation duration of the project to carry out goods purchase and sale and related activities has expired.

2. The foreign-invested economic organization applies for a business license within 2 years after having its business license revoked under Clause 1, Article 43 of this Decree.

Chapter III

LICENSES FOR ESTABLISHING RETAIL SALES OUTLETS

Article 22. Conditions for establishment of retail sales outlets

1. Establishment of the first retail sales outlet

a/ Having a financial plan for establishment of a retail sales outlet;

b/ Owing no overdue tax debts, for a foreign-invested economic organization established in Vietnam for 1 year or more;

c/ The location of the to-be-established retail sales outlet conforms with the relevant master plan of the relevant geographical market.

2. Establishment of a retail sales outlet in addition to the first one

a/ In case no economic need test is required:

Satisfying the conditions prescribed in Clause 1 of this Article.

b/ In case economic need test is required:

- Satisfying the conditions prescribed in Clause 1 of this Article;

- Satisfying the criteria on economic need test prescribed in Clause 2, Article 23 of this Decree.

Article 23. Economic need test (ENT)

1. Cases where ENT is required

Establishment of a retail sales outlet in addition to the first one, unless the to-be-established outlet is under 500 m² in area, is located in a trade center, and is neither a convenience store nor a mini mart.

2. Criteria for ENT

a/ Scope of the relevant geographical market to be affected by the operation of the to-be-established retail sales outlet;

b/ Number of retail sales outlets currently operating in the relevant geographical market;

c/ Impacts of the retail sales outlet on the market stability and business activities of other retail sales outlets and traditional markets in the relevant geographical market;

d/ Impacts of the retail sales outlet on traffic density, environmental sanitation and fire prevention and fighting in the relevant geographical market;

dd/ Possible contributions of the retail sales outlet to the socio-economic development of the relevant geographical market, such as:

- Creation of jobs for domestic workers;

- Contributions to the development and modernization of the retail sector in the relevant geographical market;

- Improvement of the living environment and conditions for inhabitants in the relevant geographical market;

- Ability and levels of contribution to the state budget.

Article 24. ENT council

1. An ENT council shall be formed by the provincial-level People’s Committee of the locality where a retail sales outlet is established at the proposal of the licensing agency.

2. An ENT council shall be composed of the chairperson being a representative of the provincial-level People’s Committee or agency authorized by the provincial-level People’s Committee, and members being representatives of the provincial-level Department and Industry and Trade, Department of Planning and Investment and related departments, sectors and organizations. In case a retail sales outlet is to be established in a commune-level geographical area adjacent to another province or centrally run city, the ENT council must have a representative of the People’s Committee of such province or city.

3. An ENT council shall, based on the evaluation of the ENT criteria prescribed in Clause 2, Article 23 of this Decree, clearly state whether the location intended for establishing a retail sales outlet is appropriate or inappropriate for its chairperson to issue a written conclusion proposing the establishment or non-establishment of a retail sales outlet at such location.

Article 25. Bases for grant of licenses for establishing retail sales outlets

The Ministry of Industry and Trade shall base itself on the following contents to grant a license for establishing a retail sales outlet:

1. Conformity with the regional or national sectoral development master plan or strategy, for applicants being foreign investors of the countries or territories that have acceded to treaties to which Vietnam is a contracting party and which contain commitments on market opening for goods purchase and sale and related activities.

2. For applicants being foreign investors not from the countries or territories that have acceded to treaties to which Vietnam is a contracting party

a/ Conformity with the regional or national sectoral development master plan or strategy;

b/ Vietnam’s market opening negotiation process;

c/ Vietnam’s market opening demand;

d/ Vietnam’s strategy on cooperation with foreign partners;

dd/ Diplomatic relations, national security, and social order and safety.

Article 26. Contents and validity period of licenses for establishing retail sales outlets

1. Contents of a license for establishing a retail sales outlet (Form No. 12 in the Appendix to this Decree)

a/ Name, code, address of head office of the enterprise;

b/ Name and address of the retail sales outlet;

c/ Type of the retail sales outlet;

d/ Size of the retail sales outlet;

dd/ Other contents;

e/ Validity period of the license.

2. Validity period of licenses for establishing retail sales outlets

a/ The validity period of a license for establishing a retail sales outlet must equal the remaining validity period of the investment registration certificate of the project to establish a retail sales outlet. If no investment registration certificate is available, the validity period of a license for establishing a retail sales outlet must equal the period stated in the document on the location for establishing a retail sales outlet;

b/ The validity period of a re-granted license for establishing a retail sales outlet must equal the remaining validity period of the old license;

c/ The validity period of an extended license for establishing a retail sales outlet must comply with Point a of this Clause.

Article 27. Dossier of application for a license for establishing a retail sales outlet

A dossier must comprise:

1. An application for a license for establishing a retail sales outlet (made according to Form No. 04 in the Appendix to this Decree).

2. A written explanation stating:

a/ The location for establishing the retail sales outlet: address of the outlet; description of the overall area, relevant areas and area used for establishing the outlet; and the applicant’s satisfaction of the condition prescribed at Point c, Clause 1, Article 22 of this Decree, enclosed with documents on the location;

b/ The business plan at the retail sales outlet: presenting the business and market development plan; labor demand; and assessment of the business plan’s socio-economic impacts and efficiency;

c/ The financial plan for establishing the retail sales outlet: reporting on business results based on the audited financial statement of the latest year, for a foreign-invested economic organization established in Vietnam for 1 year or more; and explaining funds, funding sources and fundraising plan, enclosed with financial documents.

3. The tax office’s documents proving that the applicant owes no overdue tax debts.

4. Copies of the enterprise registration certificate, investment registration certificate of the project to establish the retail sales outlet (if any), and business license.

5. A written explanation about the ENT criteria prescribed at Points c, d and dd, Clause 2, Article 23 of this Decree, in case ENT is required.

Article 28. Order of application for a license for establishing the first retail sales outlet or a retail sales outlet in addition to the first retail sales outlet in case ENT is not required

1. Two sets of dossier shall be submitted directly or sent by post or online (if possible) to the licensing agency.

2. Within 3 working days after receiving a dossier, the licensing agency shall examine it and may request modification and supplementation of the dossier if it is incomplete and invalid.

3. Within 10 working days after receiving a complete and valid dossier, the licensing agency shall inspect the applicant’s satisfaction of the conditions prescribed in Clause 1, Article 22 of this Decree:

a/ If the applicant dissatisfies the prescribed conditions, the licensing agency shall issue a written reply stating the reason;

b/ If the applicant satisfies the prescribed conditions, the licensing agency shall send the dossier, enclosed with a written request for opinion, to the Ministry of Industry and Trade as prescribed at Point c, Clause 3, Article 8 of this Decree (made according to Form No. 09 in the Appendix to this Decree).

4. Within 7 working days after receiving a dossier, the Ministry of Industry and Trade shall, in pursuance to Article 25 of this Decree, issue a written approval of the grant of a license for establishing a retail sales outlet; in case of disapproval, it shall issue a written reply stating the reason (made according to Form No. 10 in the Appendix to this Decree).

5. Within 3 working days after receiving a written approval from the Ministry of Industry and Trade, the licensing agency shall grant a license for establishing a retail sales outlet. If the Ministry of Industry and Trade disapproves the license grant, the licensing agency shall issue a written reply stating the reason.

Article 29. Order of application for a license for establishing a retail sales outlet in addition to the first retail sales outlet in case ENT is required

1. Two sets of dossier shall be submitted directly or sent by post or online (if possible) to the licensing agency.

2. Within 3 working days after receiving a dossier, the licensing agency shall examine it and may request modification and supplementation of the dossier if it is incomplete and invalid.

3. Within 5 working days after receiving a complete and valid dossier, the licensing agency shall inspect the applicant’s satisfaction of the conditions prescribed in Clause 1, Article 22 of this Decree:

a/ If the applicant dissatisfies the prescribed conditions, the licensing agency shall issue a written reply stating the reason;

b/ If the applicant satisfies the prescribed conditions, the licensing agency shall propose the formation of an ENT council under Clauses 1 and 2, Article 24 of this Decree.

4. Within 7 working days after receiving a request for forming an ENT council, the provincial-level People’s Committee concerned shall form such council.

5. Within 30 days after being formed, the ENT council shall evaluate the ENT criteria prescribed in Clause 2, Article 23 of this Decree for its chairperson to issue a written conclusion.

6. Within 3 working days after receiving a written conclusion from the ENT council’s chairperson:

a/ If such conclusion proposes refusal to grant a license, the licensing agency shall issue a written reply stating the reason;

b/ If such conclusion proposes the grant of a license, the licensing agency shall send the dossier, enclosed with a written request for opinion, to the Ministry of Industry and Trade under Point c, Clause 3, Article 8 of this Decree (made according to Form No. 09 in the Appendix to this Decree).

7. Within 10 working days after receiving a dossier, the Ministry of Industry and Trade shall, in pursuance to Article 25 of this Decree, issue a written approval of the grant of a license for establishing a retail sales outlet; in case of disapproval, it shall issue a written reply stating the reason (made according to Form No. 10 in the Appendix to this Decree).

8. Within 3 working days after receiving the Ministry of Industry and Trade’s written approval, the licensing agency shall grant a license for establishing a retail sales outlet. If the Ministry of Industry and Trade disapproves the license grant, the licensing agency shall issue a written reply stating the reason.

Article 30. Modification of licenses for establishing retail sales outlets

A license for establishing a retail sales outlet shall be modified in case of any change in one of the contents prescribed at Points a, b, c, d and dd, Clause 1, Article 26 of this Decree.

Article 31. Dossier for modification of a license for establishing a retail sales outlet

1. In case of change in the contents prescribed at Points a, b and c, Clause 1, Article 26 of this Decree, except the case of conversion of a retail sales outlet into a convenience store or mini mart prescribed in Clause 4 of this Article; or in case of narrowing the area of a retail sales outlet, a dossier must comprise:

a/ A written request for modification of a license for establishing a retail sales outlet (made according to Form No. 05 in the Appendix to this Decree);

b/ A copy of the business license stating the modified content, in case of renaming or relocation of the outlet;

c/ A copy of the competent commune-level agency certifying the change, in case of relocation of the outlet;

d/ Relevant papers, in case of narrowing the area of the outlet.

2. In case of increasing the area of the first retail sales outlet in a trade center; increasing the area of a retail sales outlet in addition to the first retail sales outlet which is established in a trade center and is neither a convenience store nor a mini mart to under 500 m², a dossier must comprise:

a/ A written request for modification of a license for establishing a retail sales outlet (made according to Form No. 05 in the Appendix to this Decree);

b/ A written explanation stating:

- The location for establishing a retail sales outlet: address of the outlet; and description of the overall area, relevant areas and area used for establishing the outlet, enclosed with documents on the location;

- Business activities of the retail sales outlet in the last year.

c/ The tax office’s documents proving that the applicant’s owes no overdue tax debts.

3. In case of increasing the area of the first retail sales outlet outside a trade center, a dossier must comprise:

a/ The documents specified in Clause 2 of this Article;

b/ A written explanation about the applicant’s satisfaction of the condition prescribed at Point c, Clause 1, Article 22 of this Decree.

4. In case of increasing the area of another retail sales outlet, and in case the retail sales outlet in addition to the first retail sales outlet is converted into a convenience store or mini mart, a dossier must comprise:

- A written request for modification of a license for establishing a retail sales outlet (made according to Form No. 05 in the Appendix to this Decree);

- A report on business activities of the retail sales outlet in the last year;

- The documents specified in Clauses 2, 3 and 5, Article 27 of this Decree.

Article 32. Order of modification of a license for establishing a retail sales outlet

1. A dossier shall be sent within 10 working days from the date of availability of the documents stating the modified contents specified at Points a and b, Clause 1, Article 26 of this Decree.

2. In the cases prescribed in Clauses 1 and 2, Article 31 of this Decree:

a/ One set of dossier shall be submitted directly or sent by post or online (if possible) to the licensing agency;

b/ Within 3 working days after receiving a dossier, the licensing agency shall examine it and may request modification and supplementation of the dossier if it is incomplete and invalid;

c/ Within 5 working days after receiving a complete and valid dossier, the licensing agency shall modify a license for establishing a retail sales outlet; in case of refusal, it shall issue a written reply stating the reason.

3. In the case prescribed in Clause 3, Article 31 of this Decree, the order of license modification must comply with Article 28 of this Decree.

4. In the case prescribed in Clause 4, Article 31 of this Decree, the order of license modification must comply with Article 29 of this Decree.

5. Within 5 working days after receiving the modified license for establishing a retail sales outlet, the foreign-invested economic organization concerned shall return the old one to the licensing agency.

Article 33. Re-grant of licenses for establishing retail sales outlets

A license for establishing a retail sales outlet shall be re-granted in case it is lost or damaged.

Article 34. Dossier for re-grant of a license for establishing a retail sales outlet

A written request for re-grant of a license for establishing a retail sales outlet (made according to Form No. 06 in the Appendix to this Decree).

Article 35. Order of re-grant of a license for establishing a retail sales outlet

1. One set of dossier shall be submitted directly or sent by post or online (if possible) to the licensing agency.

2. Within 5 working days after receiving a dossier, the licensing agency shall re-grant a license for establishing a retail sales outlet; in case of refusal, it shall issue a written reply stating the reason.

Article 36. Dossier for extension of a license for establishing a retail sales outlet

A dossier must comprise:

1. A written request for extension of a license for establishing a retail sales outlet (made according to Form No. 07 in the Appendix to this Decree).

2. The documents prescribed in Clauses 2, 3 and 4, Article 27 of this Decree.

Article 37. Order of extension of a license for establishing a retail sales outlet

1. A dossier shall be sent at least 30 days before a license for establishing a retail sales outlet expires.

2. One set of dossier shall be submitted directly or sent by post or online (if possible) to the licensing agency.

3. Within 5 working days after receiving a dossier, the licensing agency shall examine it and may request modification and supplementation of the dossier if it is incomplete and invalid.

4. If the dossier is complete and valid, the licensing agency shall extend a license for establishing a retail sales outlet; in case of refusal, it shall issue a written reply stating the reason.

Article 38. Dossier and order for grant of a license for establishing a retail sales outlet to permit it to resume operation

1. A dossier must comprise:

a/ An application for a license for establishing a retail sales outlet to permit it to resume operation (made according to Form No. 08 in the Appendix to this Decree);

b/ A written explanation about the retail sales outlet with the following contents:

- The location of the retail sales outlet: address of the outlet; description of the overall area, relevant areas and area used for establishing the outlet; the applicant’s satisfaction of the condition prescribed at Point c, Clause 1, Article 22 of this Decree; and the criteria prescribed at Points c, d and dd, Clause 2, Article 23 of this Decree, in case of application for a license for establishing a retail sales outlet prescribed in Clause 1, Article 23 of this Decree, enclosed with documents on the location;

- The business situation of the retail sales outlet; business and market development plan; labor demand; and assessment of the business plan’s socio-economic impacts and efficiency;

- Business results of the retail sales outlet, based on the audited financial statement of the last year;

c/ A summary report on business results of the foreign-invested economic organization based on the audited financial statement of the last year; and financial plan, enclosed with financial documents;

d/ The tax office’s documents proving that the applicant owes no overdue tax debts;

dd/ Copies of the enterprise registration certificate, investment registration certificate of the project to establish the retail sales outlet (if any), and business license (if any).

2. Order of license grant

a/ Two sets of dossier shall be submitted directly or sent by post or online (if possible) to the Ministry of Industry and Trade within 30 days from the date of grant of the enterprise registration certificate stating the modified content;

b/ Within 3 working days after receiving a dossier, the Ministry of Industry and Trade shall examine it and may request modification and supplementation of the dossier if it is incomplete and invalid;

c/ Within 15 days after receiving a complete and valid dossier, the Ministry of Industry and Trade shall consider and send it to the licensing agency of the place where is located the retail sales outlet expected to resume operation;

d/ Within 20 days after receiving a dossier, the licensing agency shall examine it and check the location of the retail sales outlet so as to send a written proposal to the Ministry of Industry and Trade for grant of a license (made according to Form No. 09 in the Appendix to this Decree); if proposing refusal to grant a license, the licensing agency shall send a written reply stating the reason to the Ministry of Industry and Trade;

dd/ Within 15 days after receiving a written proposal from the licensing agency, the Ministry of Industry and Trade shall, based on this proposal and in pursuance to Article 25 of this Decree, issue a written approval; in case of disapproval, it shall issue a written reply stating the reason (made according to Form No. 10 in the Appendix to this Decree);

e/ Within 5 working days after receiving a written approval from the Ministry of Industry and Trade, the licensing agency shall grant a license for establishing a retail sales outlet; in case of refusal, it shall issue a written reply stating the reason.

Article 39. Refusal to grant or extend licenses for establishing retail sales outlets

In addition to the cases of dissatisfaction of the conditions prescribed in this Decree, the licensing agency may refuse to grant or extend a license for establishing a retail sales outlet in the following cases:

1. The operation duration of the project to establish the retail sales outlet has expired.

2. The foreign-invested economic organization concerned applies for a license for establishing a retail sales outlet within 2 years after its license for establishing a retail sales outlet is revoked under Clause 2, Article 43 of this Decree.

Chapter IV

REPORTING REGIME, SENDING AND PRESERVATION OF LICENSES, AND INFORMATION DISCLOSURE

Article 40. Reporting regime

1. Reporting by foreign-invested economic organizations

a/ Before January 31 every year, foreign-invested economic organizations shall make reports on goods purchase and sale and related activities according to Form No. 13 in the Appendix to this Decree;

b/ Foreign-invested economic organizations are obliged to report, provide documents on or explain issues concerning goods purchase and sale and related activities and operation of retail sales outlets at the request of competent state management agencies.

2. Reporting by licensing agencies

Before February 28 every year, licensing agencies shall send to the Ministry of Industry and Trade or related line ministries (in case of licensing the trading in the goods specified at Point c, Clause 4, Article 9 of this Decree) reports on the grant, re-grant, modification and revocation of business licenses; the grant, re-grant, extension and revocation of licenses for establishing retail sales outlets of foreign-invested economic organizations; and on goods purchase and sale and related activities carried out by foreign-invested economic organizations under their management, made according to Form No. 14 in the Appendix to this Decree.

Article 41. Sending and preservation of licenses, and information disclosure

1. Licensing agencies shall send copies of business licenses to the Ministry of Industry and Trade or related line ministries (in the case prescribed at Point c, Clause 4, Article 9 of this Decree), tax offices, statistics offices and related agencies of the places where head offices of foreign-invested economic organizations are located (if necessary).

2. Licensing agencies shall send copies of licenses for establishing retail sales outlets to the Ministry of Industry and Trade, tax offices, statistics offices and related agencies of the places where retail sales outlets are located.

3. Within 15 days from the date of grant, re-grant, modification or revocation of a business license; grant, re-grant, modification, extension or revocation of a license for establishing a retail sales outlet; or issuance of an operation termination decision or administrative handling decision; or from the date of receiving a copy of the written certification of suspension from operation or resumption of operation ahead of schedule from the agency granting the enterprise registration certificate, the licensing agency shall update information thereon into the relevant database.

Chapter V

STATE MANAGEMENT, HANDLING OF VIOLATIONS

Article 42. Handling of violations

Foreign-invested economic organizations that violate the regulations on goods purchase and sale and related activities or this Decree shall, depending on the nature and severity of their violations, be handled in accordance with the law on handling of administrative violations.

Article 43. Revocation of business licenses or licenses for establishing retail sales outlets

1. A business license shall be revoked in the following cases:

a/ The enterprise registration certificate is revoked;

b/ The investment registration certificate of the project involving goods purchase and sale and related activities is revoked;

c/ The information declared in the dossier for grant, re-grant or modification of a business license is false;

d/ The foreign-invested economic organization has ceased goods purchase and sale and related activities for more than 12 months without reporting thereon to the licensing agency;

dd/ The foreign-invested economic organization has not made periodical reports under Point a, Clause 1, Article 40 of this Decree for 24 consecutive months;

e/ The foreign-invested economic organization fails to send reports, documents and explanations under Point b, Clause 1, Article 40 of this Decree 3 months after the prescribed deadlines.

2.  A license for establishing a retail sales outlet shall be revoked in the following cases:

a/ The investment registration certificate or paper of equivalent legal validity of the project to establish the retail sales outlet or the business license is revoked;

b/ The information declared in the dossier for grant, re-grant, modification or extension of the license for establishing a retail sales outlet is false;

c/ Twelve months after the date of grant of the license, the foreign-invested economic organization receives no investment registration certificate as required without reporting thereon to the licensing agency;

d/ Twenty-four months after the date of grant of the license, the foreign-invested economic organization receives no investment registration certificate as required;

dd/ The foreign-invested economic organization has ceased retail activities at the retail sales outlet for more than 12 months without reporting thereon to the licensing agency;

e/ The foreign-invested economic organization has not made periodical reports under Point a, Clause 1, Article 40 of this Decree for 24 consecutive months;

g/ The foreign-invested economic organization fails to send reports, documents and explanations under Point b, Clause 1, Article 40 of this Decree after 3 months from the prescribed deadlines.

3. Order of revocation of business licenses or licenses or establishing retail sales outlets

a/ In the cases prescribed at Point a, Clause 1, and Point a, Clause 2, Article 43 of this Decree

The licensing agency shall issue a decision to revoke the business license or a decision to revoke the license for establishing a retail sales outlet (made according to Form No. 15 in the Appendix to this Decree).

b/ In the case prescribed at Point b, Clause 1, Article 43 of this Decree

Within 30 days from the date of revocation of the investment registration certificate or paper of equivalent legal validity of the project involving goods purchase and sale and related activities, the foreign-invested economic organization concerned shall send a copy of the decision to revoke the investment registration certificate to the licensing agency.

If the investment project with the investment registration certificate revoked involves all of the licensed goods purchase and sale and related activities, the licensing agency shall issue a decision to revoke the business license.

If the investment project with the investment registration certificate revoked involves some of the licensed goods purchase and sale and related activities, the licensing agency shall issue a decision to annul the business license’s contents related to the project and, at the same time, annul these contents in the business license.

c/ In case the information declared in the dossier for grant or re-grant of a business license or for grant, re-grant or extension of a license for establishing a retail sales outlet is false

The licensing agency shall issue a notice of the violation and issue a decision to revoke the granted or re-granted business license; or a decision to revoke the granted, re-granted or extended license for establishing a retail sales outlet.

d/ In case the information declared in the dossier for modification of a business license or license for establishing a retail sales outlet is false

The licensing agency shall issue a notice of the violation and issue a decision to annul the contents of the business license or license for establishing a retail sales outlet which are modified based on the false information; restore the previously licensed contents and, at the same time, notify the violation to a competent agency for handling in accordance with law.

dd/ In the cases prescribed at Points d, dd and e, Clause 1, and Points c, d, dd, e and g, Clause 2, Article 43 of this Decree

The licensing agency shall issue a written request for the at-law representative of the foreign-invested economic organization concerned to give explanations. Fifteen days after the prescribed deadline, if this representative does not appear or appears but gives unsatisfactory explanations, the licensing agency shall issue a decision to revoke the business license or a decision to revoke the license for establishing the retail sales outlet.

Article 44. Suspension from goods purchase and sale and related activities

1. Foreign-invested economic organizations may suspend their goods purchase and sale and related activities for no more than 12 months.

2. When suspending goods purchase and sale and related activities, foreign-invested economic organizations have the following obligations:

a/ To comply with regulations on suspension from business activities;

b/ Within 10 working days after obtaining the written certification of suspension from operation or resumption of operation ahead of schedule from the agency granting enterprise registration certificates, to send a copy of such written certification to the licensing agency for inclusion into the relevant database.

Article 45. Termination of goods purchase and sale and related activities

1. Cases of termination of goods purchase and sale and related activities:

a/ The foreign-invested economic organization concerned decides by itself to terminate these activities;

b/ The foreign-invested economic organization’s business license has expired but it does not apply for a new one; or the foreign-invested economic organization’s license for establishing a retail sales outlet has expired but it does not request extension;

c/ The business license has expired but the application for a new license is rejected; or the license for establishing a retail sales outlet has expired but the request for its extension is rejected;

d/ These activities are cancelled; or the business license or license for establishing a retail sales outlet is revoked under Article 43 of this Decree.

2. The termination of goods purchase and sale and related activities is prescribed below:

a/ In the cases prescribed at Points a and b, Clause 1 of this Article

Within 15 days after deciding to terminate goods purchase and sale and related activities or at least 15 days before the expiration of its business license or license for establishing a retail sales outlet, the foreign-invested economic organization concerned shall send a notice of termination of goods purchase and sale and related activities or a notice of termination of operation of its retail sales outlet to the licensing agency.

Within 10 working days after receiving the notice, the licensing agency shall issue a decision on operation termination (made according to Form No. 16 in the Appendix to this Decree).

Within 5 working days after receiving the decision on operation termination, the foreign-invested economic organization concerned shall return the original of the old license to the licensing agency.

b/ In the case prescribed at Point c, Clause 1 of this Article

Goods purchase and sale and related activities of the foreign-invested economic organization concerned will terminate on the date of expiration of its business license or license for establishing a retail sales outlet.

c/ In the case prescribed at Point d, Clause 1 of this Article

Goods purchase and sale and related activities of the foreign-invested economic organization concerned will terminate on the date stated in the decision to revoke its business license or license for establishing a retail sales outlet. Within 5 working days after receiving this decision, the foreign-invested economic organization shall return the original of the old license to the licensing agency.

Chapter VI

ORGANIZATION OF IMPLEMENTATION

Article 46. Responsibilities of the Ministry of Industry and Trade

1. To publicly announce Vietnam’s commitments in treaties on goods purchase and sale and related activities of foreign-invested economic organizations in Vietnam.

2. To assume the prime responsibility for, and coordinate with licensing agencies in, developing a database on goods purchase and sale and related activities of foreign-invested economic organizations in Vietnam.

3. To assume the prime responsibility for, and coordinate with licensing agencies and related ministries, sectors and localities in, supervising, inspecting, examining and evaluating goods purchase and sale and related activities and establishment of retail sales outlets of foreign investors or foreign-invested economic organizations in case of necessity or at the request of related ministries, sectors and localities.

Article 47. Responsibilities of the Ministry of Planning and Investment

1. To assume the prime responsibility for, and coordinate with the Ministry of Industry and Trade in, reviewing, summarizing and posting investment and business conditions on foreign investors or foreign-invested economic organizations in goods purchase and sale and related activities on the National Business Registration Portal or National Foreign Investment Portal.

2. To coordinate with the Ministry of Industry and Trade in supervising, inspecting, examining and evaluating foreign investment in goods purchase and sale and related activities and establishment of retail sales outlets.

Article 48. Responsibilities of provincial-level People’s Committees

1. To perform according to their competence the state management of goods purchase and sale and related activities of foreign investors and foreign-invested economic organizations in their localities.

2. To direct provincial-level Departments of Industry and Trade and Departments of Planning and Investment and related agencies in localities to inspect and examine goods purchase and sale and related activities of foreign investors and foreign-invested economic organizations in case of necessity or organize interdisciplinary inspections or examinations at the request of related state management agencies.

3. To coordinate with related ministries and sectors in performing the state management of goods purchase and sale and related activities of foreign investors and foreign-invested economic organizations in localities.

Article 49. Responsibilities of provincial-level Departments of Industry and Trade

1. To grant, re-grant, modify and revoke businesses licenses; to grant, re-grant, modify, extend and revoke licenses for establishing retail sales outlets.

2. To post and update on their databases information relating to business licenses, licenses for establishing retail sales outlets, and goods purchase and sale and related activities of foreign investors and foreign-invested economic organizations; to handle violations in their localities.

3. To perform the state management of goods purchase and sale and related activities and the establishment of retail sales outlets of foreign-invested economic organizations in their localities according to their competence.

4. To supervise, inspect, examine and evaluate goods purchase and sale and related activities and the establishment of retail sales outlets of foreign-invested economic organizations in their localities according to their competence.

5. To handle violations in goods purchase and sale and related activities and the establishment of retail sales outlets of foreign-invested economic organizations in their localities according to their competence.

Article 50. Transitional provisions

1. Foreign-invested economic organizations that possess enterprise registration certificates, investment registration certificates or papers of equivalent legal validity, business licenses or licenses for establishing retail sales outlets for carrying out goods purchase and sale and related activities that are granted before the effective date of this Decree may continue to carry out these activities until these papers expire without having to apply for new ones.

2. Foreign-invested economic organizations that possess no business licenses prescribed in this Decree but possess enterprise registration certificates, investment registration certificates or papers of equivalent legal validity involving goods purchase and sale and related activities for which business licenses are required under this Decree shall, if requesting modification of the contents prescribed in Clause 1, Article 11 of this Decree, carry out procedures to request modification of their business licenses under Articles 15 and 16 of this Decree. Licensing agencies shall grant business licenses stating the licensed contents and modified contents.

3. Foreign-invested economic organizations that possess no licenses for establishing retail sales outlets prescribed in this Decree but possess enterprise registration certificates, investment registration certificates or papers of equivalent legal validity containing the content on establishment of retail sales outlets for which licenses for establishing retail sales outlets are required under this Decree shall, if requesting modification of the contents of prescribed at Points a, b, c, dd and dd, Clause 1, Article 26 of this Decree, carry out procedures to request modification of licenses for establishing retail sales outlets under Articles 31 and 32 of this Decree. Licensing agencies shall grant licenses for establishing retail sales outlets stating the licensed contents and modified contents.

Article 51. Effect

1. This Decree takes effect on January 15, 2018.

2. This Decree replaces the Government’s Decree No. 23/2007/ND-CP of February 12, 2007, detailing the Commercial Law regarding goods purchase and sale and related activities of foreign-invested enterprises in Vietnam.

Article 52. Implementation responsibility

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of provincial-level People’s Committees shall implement this Decree.-

On behalf of the Government
Prime Minister
NGUYEN XUAN PHUC

* The Appendix to this Decree is not translated.