The APEC Business Travel Card (ABTC) is expected to be a "golden visa" to help Vietnamese entrepreneurs make international trade more convenient. However, the reality shows that the journey of applying for an ABTC card is a "endurance test" for businesses, not because the regulations are too strict but because of the lack of transparency and consistency in the way of applying legal regulations on card issuance in each locality.
Legal regulations: there is a framework but lacks a "backbone"
Decision 09/2023/QD-TTg is a legal document regulating the entire issuance of ABTC cards. Legally, this decision has established a relatively complete legal framework, clearly defining the subjects, conditions, order, competence and time limit for processing dossiers. Technically, this legal framework is considered a new step forward compared to the old regulations.
However, the biggest bottleneck of this document is also the reason why businesses face difficulties in that this legal document only provides qualitative criteria. For example, some conditions such as enterprises that cooperate with partners in APEC member countries, entrepreneurs who hold actual positions for 12 months or more at enterprises or enterprises that need to send businessmen to travel regularly to carry out cooperation activities with partners in APEC member countries without accompanying information clear quantitative figures. Or on the condition that the enterprise cooperates with an APEC partner but it is not clear how much the contract is worth and how long the term is, it is considered cooperation. Even the criteria for businessmen who need to travel regularly without guidance on whether it is necessary to enter and exit countries through APEC member countries or about the minimum number of entry and exit within 12 months from the time of application.
It is the absence of these quantitative criteria that makes the ambiguity of businesses when submitting applications and the approval of dossiers dependent on the evaluation criteria of the licensing agency.
Difficult to "meet the conditions"
Article 12 of Decision No. 09/2023/QD-TTg stipulates the implementation of procedures for issuing documents permitting the use of ABTC cards and issuing new ABTC cards. First, the issuance of documents permitting the use of ABTC cards must be carried out at specialized agencies of the People's Committees of provinces and centrally-run cities. Depending on each locality, this specialized agency can be the Department of Foreign Affairs, the Department of Finance (as in Ho Chi Minh City)... This agency will act as a focal point, collecting opinions from other specialized agencies such as taxation, social insurance, police, immigration. On the basis of considering the responses from other specialized agencies, this Department will issue a written notice of permission or reply about the businessman's ineligibility to be allowed to use the ABTC card if refused. On the basis of approval, the entrepreneur submits an application for a new ABTC card at the Immigration Department.
However, the reality shows that many businesses have been entangled right from the first step of submitting documents. The applicant reported that the application was rejected in an unclear manner. There is a dossier that requires the "proof of regular travel" of the businessman even though there is no regulation requiring the minimum number of times a year for the businessman to be considered for issuance of a card. There are records that are considered "insufficient international cooperation" despite having trade contracts with APEC partners worth hundreds of thousands of US dollars. There are businesses that are entangled in revenue problems because they have not met the minimum revenue compared to the common ground in the locality to be considered for issuance of ABTC cards.
In an effort to increase international trade, businesses will naturally have to comply with regulatory procedures, but they also need to know what the actual conditions are.
Source: The Saigon Times
The gap between general regulation and individual rules
The situation of "one type in each place" in the review of ABTC dossiers is not the fault of the enterprise. According to the provisions of Article 12 of Decision 09/2023/QD-TTg, the Department of Finance is responsible for collecting opinions from specialized agencies within three working days. These agencies have 20 days to respond. However, this decision does not come with a monitoring mechanism or sanctions if the agency does not respond on time.
In addition, the decision also does not require the disclosure of internal review criteria, leading to the situation that the "underground" rule exists in parallel with the official law. In addition, because no specific guidelines have been issued, in fact, a system of "implicit" criteria has been formed, which can only be transmitted by word of mouth through the receiving officer or people with experience in implementation. It is these "unwritten" criteria that have invisibly created informal administrative barriers, causing pressure and risks for businesses.
From the above inadequacies, it can be seen that reform of ABTC card issuance procedures is an essential requirement! In order for this reform to achieve substantive effectiveness, it is necessary to implement synchronously according to the following three pillars:
First, transparency of approval criteria. Competent agencies need to issue detailed guidelines that clearly stipulate quantitative criteria such as minimum turnover, number of entries and exits, value of cooperation contracts, time of holding office with social insurance premiums, etc. This not only helps businesses proactively assess their ability to meet the conditions for card issuance but also contributes to reducing the pressure on the approval agency.
Second, standardize the interdisciplinary process. Digitizing the entire process and creating a transparent monitoring channel between specialized agencies will help shorten processing time and avoid long processing deadlines.
Third, ensure the right to know and the right to complain of enterprises. In case the dossier is not approved, the handling agency needs to issue an official written reply, clearly stating the reason for refusal, relevant legal grounds and specific instructions so that the enterprise can supplement or exercise the right to complain.
Lawyer Cao Nguyen Bao Lien
HM&P Law Firm
