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Notable points of new Decree 09/2018/ND-CP replacing Decree 23/2007/ND-CP regarding the activities of goods trading and direct related activities of foreign-invested enterprises in Vietnam

The Vietnamese Government has just issued Decree No. 09/2018/ND-CP (“Decree 09”) detailing the Commercial Law and Foreign Trade Management Law regarding the activities of purchase and sale of goods and activities related directly to the purchase and sale of goods of foreign-invested in Vietnam (hereinafter referred to as “goods purchase and sale activities”). This decree came into force on January 15th, 2018 and replaced Decree 23/2007/ND-CP (“Decree 23”). Some key updates and comparisons in Decree 09 are:

·       The definitions used in Decree 09 are consistent with the ones in the current Investment Law (Law No. 67/2014/QH13) and other related regulations. The subjects of application regarding goods purchase and sale activities in Decree 23 included foreign-invested enterprises, and organizations and individuals involved while under Decree 09 the subjects are widened to include also the foreign investors.

·       The economic organizations with foreign owned capital specified in point b and c of Article 23.1 of the Investment Law are now also required obtaining the Business License [A1] (“BL”).

·       The business organizations which conduct the right to import and wholesale distribution are no longer required the BL, except the event of oil and lubricant.

·       In prior regulation (Decree 23), to obtain the BL, the foreign investors must be from countries or territories participating in treaties that Vietnam is a party. the new Decree 09 regulates conditions for obtaining the BL for not only the foreign investors who from the countries or territories participating in treaties that Vietnam is a party but also conditions for those who are not, as well as condition for goods and services which have not committed in International Treaties that Vietnam involved.

·       In the old Decree 23, the competent authorities who grant the BL are Provincial-level People’s Committees while in the new Decree 09 the Department of Industry and Trade (“DOIT”) where the head office of the foreign capital economic organizations located shall be in charge of this.

·       The time regulated in the old Decree 23 for obtaining the Business License in the cases that require Official Dispatch from the MOIT is 45 days and the cases which do not require Official Dispatch is 15 days. In contrast, the new Decree 09 shortens the total time for obtaining the BL to 28 days and 10 days respectively.