Conditions for Providing Consulting Services Under Commercial Law

What Is Service Provision? What Is Consulting Activity?

Pursuant to Clause 9, Article 3 of the Commercial Law 2005 on the concept of service provision as follows:

Service provision is a commercial activity whereby one party (hereinafter referred to as the service provider) is obligated to perform services for another party and receives payment; the service user (hereinafter referred to as the customer) is obligated to pay the service provider and use the services as agreed.

Pursuant to Clause 1, Article 5 of Decree No. 87/2002/ND-CP on the concept of consulting activity as follows:

Consulting activity is the activity of collecting and processing information, applying professional knowledge, identifying problems, proposing solutions and options, preparing projects, and supervising and evaluating, carried out independently and objectively by Vietnamese professional organizations and individuals at the request of the consulting service user.

How Are the Conditions for Providing Consulting Services Regulated?

Pursuant to Article 6 of Decree No. 87/2002/ND-CP on the conditions for providing consulting services, specifically as follows:

– For consulting organizations:

+ Being an enterprise, science and technology organization, or another organization with professional capacity and experience in the consulting field, established and registered to operate in accordance with the law;

+ Having an office and working facilities;

+ Having at least 02 persons satisfying the conditions prescribed in Clause 2 of this Article.

– For individuals engaged in consulting:

+ Having a college or university degree or higher in the consulting practice field, or holding a consulting practice certificate where the law so prescribes;

+ Having good moral character;

+ Having full civil act capacity;

+ Not being under criminal prosecution or subject to administrative handling measures in the consulting practice field;

+ Must operate within a specific consulting organization.

– Officials and public servants are permitted to participate in providing consulting services where such participation is not contrary to the Ordinance on Officials and Public Servants.

The principles of consulting activity prescribed in Article 7 of Decree No. 87/2002/ND-CP are specifically as follows:

– Compliance with the law.

– Being responsible before the law for all professional activities.

– Compliance with professional ethics.

– Ensuring the independence, honesty, objectivity, and scientific nature of consulting activities.

– Keeping confidential the information received from the consulting service user during the provision of consulting services, except where the customer agrees or the law otherwise provides.

How Are the Rights and Obligations of Consultants Regulated?

Regarding rights, pursuant to Article 8 of Decree No. 87/2002/ND-CP on the rights of consultants, specifically as follows:

– Equally participating in consulting selection contests or consulting selection bidding.

– Negotiating and signing consulting contracts.

– Collecting consulting fees as agreed in the consulting contract.

– Canceling or unilaterally suspending performance of the consulting contract and requesting compensation for damage where the consulting service user violates obligations committed in the consulting contract.

– Requesting the consulting service user to provide information and documents necessary for performing the consulting contract.

– Hiring domestic and foreign experts to perform the consulting contract.

– Conducting activities to promote the export of consulting services.

– Establishing consulting organizations as prescribed in Clause 1, Article 6 of this Decree.

– Participating in domestic, regional, and international consulting associations in accordance with the law.

– Exercising other rights as prescribed by law.

Regarding obligations, pursuant to Article 9 of Decree No. 87/2002/ND-CP on the obligations of consultants, specifically as follows:

– Fully performing obligations in the consulting contract.

– Facilitating the consulting service user in filing applications for intellectual property protection for results obtained from the performance of the consulting contract, except where the consulting contract otherwise provides.

– Compensating the consulting service user for damage upon violating obligations committed in the consulting contract.

– Purchasing professional liability insurance.

– Fully performing financial obligations as prescribed by law.

From the legal bases set out above, in order to provide consulting services, your company must satisfy the conditions in Article 6 of Decree No. 87/2002/ND-CP and pay attention to your rights and obligations when participating in consulting service provision.