Can foreign commercial mediation institutions be established and operate in Vietnam?
According to Vietnamese law[1], foreign commercial mediation institutions that are lawfully established and operating in foreign countries may operate in Vietnam in the form of branches or representative offices.
As per the law, branch is a dependent unit of a foreign commercial mediation institution, which is established to carry out commercial mediation activities in Vietnam. A foreign commercial mediation institution must take responsibility before Vietnamese law for operation of its Vietnam-based branch(es). A commercial mediator will be appointed to act as the head of the institution’s branch and authorized representative of such Vietnam-based foreign commercial mediation institution.
A representative office is a dependent unit of a foreign commercial mediation institution, which is established to seek and promote mediation opportunities in Vietnam. A foreign commercial mediation institution will take responsibility before Vietnamese law for operation of its representative offices.
A Vietnam-based branch or representative office of a foreign commercial mediation institution may rent a working office to carry out its operation, recruit Vietnamese and foreign employees in accordance with law, open Vietnam dong and foreign currency accounts at banks licensed to operate in Vietnam to serve its operation, and have a seal as prescribed by law. It is obliged to operate for proper purposes and within the scope and period stated in its establishment license and report on its organization and commercial mediation activities to the provincial-level Justice Department of the province or city where it has registered its operation on an annual basis or upon request.
Apart from the above rights and obligations, a branch may also transfer its income abroad in accordance with Vietnamese law, appoint mediators to conduct mediation as authorized by the foreign commercial mediation institution, provide commercial mediation services, archive files and provide copies of records of mediation results at the request of disputing parties or competent state agencies.
Meanwhile, a representative office is not allowed to carry out commercial mediation activities in Vietnam. It may only seek and promote commercial mediation opportunities in Vietnam and carry out activities of promoting and advertising commercial mediation activities in accordance with Vietnamese law.
What are procedures for a foreign commercial mediation institution’s branch or representative office to operate in Vietnam?
A foreign commercial mediation institution wishing to establish a branch or representative office in Vietnam must apply for an establishment license. To lawfully operate in Vietnam, a branch is required to register operation while a representative office just has to publicly notify its operation.
Specifically, a foreign commercial mediation institution is required to send to the Ministry of Justice one dossier set comprising:
(i) A written request for establishment of a branch or representative office;
(ii) A certified copy of the paper proving the lawful establishment of the institution, issued by a competent foreign authority;
(iii) A written introduction of the institution’s operation;
(iv) The decision appointing a commercial mediator to act as the head of the branch or representative office;
(v) A list of commercial mediators and staff members expected to work at the branch; or a list of staff members expected to work at the representative office.
Foreign-language papers accompanying the written request for establishment of a Vietnam-based branch or representative office must have Vietnamese translations notarized in accordance with Vietnamese law.
Papers issued by foreign agencies or organizations or notarized or certified in foreign countries must be legalized by consular offices in accordance with Vietnamese law, unless they are exempted from consular legalization under treaties to which the Socialist Republic of Vietnam is a contracting party.
Within 30 days after receiving a valid dossier, the Justice Ministry will grant an establishment license to the branch or representative office of a foreign commercial mediation institution. In case of refusal, it will notify the reason in writing.
To operate in Vietnam, a branch must send a dossier for operation registration to the provincial-level Justice Department of the locality where it is located within 60 days after the decision to grant its establishment license takes effect. Past this time limit, if the branch fails to register its operation, its establishment license will be invalidated, unless it has a plausible reason.
The dossier for operation registration must comprise a written request for operation registration; a certified copy, or a copy enclosed with the original for comparison, of the branch’s establishment license; and papers proving the branch office.
The provincial-level Justice Department will grant an operation registration certificate to the branch within 10 days after receiving a valid dossier. The branch may commence its operation on the date it is granted the certificate.
Meanwhile, a representative office must send a dossier notifying its establishment to the provincial-level Justice Department of the locality where it is located within 7 working days after the decision to grant its establishment license takes effect. The dossier must comprise a notice of the establishment of the representative office, and a certified copy, or a copy enclosed with the original for comparison, of the representative office establishment license.- (VLLF)
