In case the foreign investor would like to set up a foreign invested company providing Shipping Agency/ Freight Forwarding Services in Vietnam, they should consider the legal aspect as follow:
In case the foreign investor would like to set up a foreign invested company providing Shipping Agency / Freight Forwarding Services in Vietnam, they should consider the legal aspect as follow:
Logistic services under Vietnamese law, are the commercial activities whereby traders/enterprises organize the performance of one or many jobs including reception, transportation, warehousing, yard storage of cargos, completion of customs procedures and other formalities and paperwork, provision of consultancy to customers, services of packaging, marking, delivery of goods or other services related to goods according to agreements with customers in order to enjoy service charges.
The enterprise operating in logistic services must have lawful business registration in accordance with the law of Vietnam and must have adequate facilities, equipment and working facilities and personnel. A foreign investor cannot incorporate a wholly foreign invested company operating in the logistics sector but only a Joint Venture Company can only be formed with a Vietnamese party. The proportion of foreign investment shall vary according to the services provided by the logistic service provider.
According to the Decree No.140/2007/ND-CP dated September 5th, 2007, providing detailed regulations for implementation of the Commercial Law with regard to conditions for engaging in logistic services business and the limitations on liability of business entities engaging in logistic services business, Foreign Investors who wish to conduct business activities in the field of transportation agency services must satisfy following conditions:
– It must have adequate facilities, equipment and working facilities which ensure technical [standards] and safety criteria, and a team of staff who satisfy the requirements;
-It must establish a Joint Venture Company in which the capital contribution ratio of the foreign investor does not exceed 51%. From year of 2014, the capital contribution ratio of the foreign investor in Joint Venture Company shall be totally removed.
Regarding to the International Maritime Transport, according to Vietnam WTO Commitments and the Decree No.140/2007/ND-CP dated September 5th, 2007 as mentioned above, from the year of 2012, Foreign Maritime Transportation Companies are entitled to establish 100% Foreign Invested Company to provide International Maritime Transportation Services in Vietnam. Foreign Invested Companies are only permitted to carry out activities as indicated below:
– Marketing and sales maritime transport services through direct contact with customers, from quotation to invoicing;
– Acting on behalf of the cargo owners;
– Provision of required business information;
– Preparation of documentation concerning transport documents including customs documents, or other documents related to the origin and character of the goods transported;
– Provision of maritime transport services including cabotage services by Vietnamese flagged vessels for the supply of integrated transport services;
– Acting on behalf of the company, organizing the call of the ship or taking over cargoes when required;
-Negotiate and sign contracts for road, rail, inland waterways transportation related to cargoes transported by the company.
Thus, in case they wish to setup 100% Foreign Invested Company in Vietnam, they are only permitted provide international maritime transportation services as mentioned above. If they wish to provide transportation agency services, they must establish a Joint Venture Company with a local partner in which their foreign ownership must not exceed 51%. From the year of 2012, restriction of foreign ownerships in the Joint Venture Company shall be removed.
Setting up Wholly Foreign Invested Company
The establishment of the new company requires an Investment Certificate from the licensing authority. Depending upon the location of the company, the licensing authority may be the Provincial People’s Committee (for companies located outside industrial or export processing zones) or the provincial Industrial and Export Processing Zones Management Authority (for companies located in industrial or export processing zones).
We would like to clarify that the procedure for establishment of a foreign invested company in Vietnam generally takes a rather long time in comparison with other countries in the region.
Our practical experiences show that although the total time for establishment of a foreign invested company as stipulated under Vietnam Investment Law 2005 is only 20 – 45 days, the actual process may take a longer time due to that the competent authority must consult other relevant offices to evaluate the investment project.
Under Vietnam Law on Investment, for incorporating a foreign invested company (Hereinafter referred to as “FIC”), foreign investors are required to propose an Investment Project initially to obtain Investment certificate.
The relevant licensing authorities shall evaluate the legitimacy and the feasibility of such Investment Project to determine on granting of the Investment Certificate on the following basis:
a.The legal framework including Vietnam’s WTO Commitments, Vietnam Investment Law, Vietnam Enterprise Law, Regulations applicable to specific industries as well as the master economic development plan of the city or province that the FIC shall register its head-office.
b. Their financial ability, investment capital to put in the Investment Project, facilities and human resources serving the implementation of such investment project in Vietnam.
c.Head office of the FIC should be in line with master plan of the City.
The roadmap for the incorporation of the FIC for trading activities can be described in following steps as follows:
- Preparing the application dossier: We shall collect necessary information and documents from investor. Upon receipt of necessary information and documents from them, we shall translate documents from English into Vietnamese and prepare the application dossier under the standard forms. The initial drafted application dossier shall be sent to them for their comments. Then, after updating the application dossier based on their comments, we shall obtain the preliminary comments from the competent authority and send the finalized application dossiers for you to sign and seal. We anticipate that this phase shall be completed within 05-07 working days.
- Submission of application dossier:Within 02 working days from receipt of duly signed and sealed application dossier, we shall submit the application dossier to the competent authority. It shall take about 45 workings days from submission of application dossier to the competent authority for the provincial licensing authority to grant the Investment Certificate. In some case the process can be longer as it takes time to consult relevant Ministries such as Ministry of Industry and Trade, Ministry of Planning and Investment, Ministry of Finance and Ministry of Transportation.
- Post licensing:Within 13 working days we shall complete the post licensing procedures such as publishing the New Company in News Paper, obtaining seal and tax code registration.
|SCOPE OF SERVICES|
|Preparation of the application documents:
– Notifying application documents required in accordance with Vietnamese law;
– Drafting application documents required for submission purpose;
– Liaising with SBLAW to discuss the draft application documents;
– Amending the application documents based on your comments;
– Obtaining preliminary comments from the licensing authority on the draft application documents;
– Finalizing the application documents following comments from the licensing authority; and
-Translating the final version of the application documents into Vietnamese for execution.
· Submitting the application dossier to the licensing authority on your behalf;
·Monitoring and following up with the relevant authorities on the approval process;
·Keeping your company updated on the developments and additional requirements, if any; and
-Assisting your in obtaining the investment certificate.
Upon the issuance of the investment certificate, the New Company shall be required to carry out immediate administrative procedures.
Our services include:
·Obtaining the seal of the FIC ;
·Obtaining the NewCo’s tax code; and
·Placing an announcement on the establishment of the NewCo in the newspaper.
The Deliverables will include documents prepared in Vietnamese as required for submission to licensing bodies. Investor will review, approve and where necessary sign these documents.
SB Law may provide English translations of these documents (or extracts thereof), but the translated documents should be used for reference other the purposes of discharging their responsibility for the positions taken and the underlying company information.
SBLaw professional fees shall be based on the actual time our lawyers/consultants work on the services(s) for which we have been retained. Our Lawyer and Consultations keep track their time in minutes to the nearest 10 minutes and record their time daily.
Time record notations are made for any and all work performed, including but not limited to, office conferences, legal research, preparation of legal instruments, telephone and personal trips to and from the offices to relative places or client’s offices.