Chương II Luật Chuyển giao công nghệ 2017: Thẩm định công nghệ dự án đầu tư

Chapter II

APPRAISAL OF TECHNOLOGY APPLIED TO INVESTMENT PROJECT

Article 13. Appraisal or comment on technology applied to investment project

1. In course of issuing investment policies, the appraisal of technologies which are applied to the investment projects funded by public budget shall be performed under regulations of the law on public investments.

2. In course of issuing investment policies under regulations of the Law on investment, investors must ask regulatory authorities for appraisal or comment on the technologies applied to the following investment projects:

a) Investment project that applies technology on the List of technologies restricted from transferring;

b) Investment project that applies technology and may pose risk of adversely influencing on the environment under regulations of the law on environment protection.

3. When making decision on investment policies, the appraisal or comment on technologies is performed as follows:

a) The technologies applied to investment projects that apply technologies restricted from transferring or investment projects that apply technologies and may pose risk of adversely influencing on the environment under regulations of the law on environment protection must be appraised or commented in accordance with regulations herein;

b) Technologies applied to investment projects which are not defined in Point a of this Clause shall be appraised in accordance with regulations of the Law on Construction;

c) Technologies applied to investment projects that use public investment and do not have project components shall be appraised in accordance with regulations of the law on public investment.

4. In course of implementation of an approved investment project, if there is change in the technology applied to such investment project, the investor must submit report to the authority that has appraised or commented on such technology on such change for consideration.

Article 14. Power to appraise or comment on technology in the phase of issuing investment policy

1. The power to appraise technology applied to the investment project that uses public investment shall comply with regulations of the law on public investment.

2. The power to appraise or comment on the technologies applied the projects mentioned in Point a Clause 2 Article 13 herein or projects that use technologies restricted from transferring and may pose risk of adversely influencing on the environment is stipulated as below:

a) The State appraisal board shall be responsible for carrying out the appraisal of technologies applied to investment projects the investment policies of which are subject to decision of the National Assembly;

b) The Ministry of Science and Technology shall take charge and cooperate with relevant authorities and organizations to comment on technologies applied to investment projects the investment policies of which are subject to decision by the Prime Minister;

c) Specialized science and technology agencies affiliated to the Provincial-level People’s Committees shall take charge and cooperate with relevant authorities and organizations to comment on technologies applied to investment projects which require decision on investment policies and are not subject to the cases defined in Point a and Point b of this Clause.

3. The power to appraise or comment on the technologies applied the projects mentioned in Point b Clause 2 Article 13 herein is stipulated as below:

a) The State appraisal board shall be responsible for carrying out the appraisal of technologies applied to investment projects the investment policies of which are subject to decision of the National Assembly;

b) Supervisory ministries shall take charge and cooperate with the Ministry of Science and Technology, relevant authorities and organizations to comment on technologies applied to investment projects the investment policies of which are subject to decision by the Prime Minister;

c) Specialized agencies affiliated to the Provincial-level People’s Committees shall take charge and cooperate with relevant authorities and organizations to comment on technologies applied to investment projects which require decision on investment policies and are not subject to cases defined in Point a and Point b of this Clause.

Article 15. Power to appraise or comment on technology in the phase of making investment decision

1. The power to appraise or comment on the technologies applied the projects mentioned in Point a Clause 3 Article 13 herein is stipulated as below:

a) The State appraisal board shall appraise the technologies applied to nationally significant projects;

b) Specialized construction agencies as defined by the Law on Construction shall take charge and cooperate with the same-level agencies performing state management of industries/ sectors shall appraise technologies applied to group-A, B and C state-funded investment projects;

c) Agencies performing state management of industries/ sectors shall appraise or comment on technologies applied to group-A, B and C projects using non-state budget funding and other funding sources.

2. The power to appraise the technologies applied the investment projects mentioned in Point b Clause 3 Article 13 herein shall comply with regulations of the Law on Construction.

3. The power to appraise the technologies applied the investment projects mentioned in Point c Clause 3 Article 13 herein shall comply with regulations of the Law on Public Investment.

Article 16. Explanation about application of technology in investment project dossier

1. In course of issuing investment policies, the technology-related contents explained in the investment project dossier include:

a) Analysis and selection of technology plans;

b) Name and origin of technology, technology process diagram; list of main machinery/ equipment of technology lines in the selected technology plan, their status and specifications;

c) Documents proving that the technology has been verified (if any);

d) Plan for training or giving technical assistance in operating technology lines (if any);

dd) Technology application conditions;

e) Preliminary environmental impact assessment (if any);

g) Technology transfer agreement draft (if the contribution in form of technology is included).

2. When applying for investment decision, the technology-related contents explained in the investment project dossier include:

a) Name and origin of technology, technology process diagram; list of main machinery/ equipment of technology lines, their status and specifications;

b) Products and their quality standards;

c) The possibility of supplying materials, fuels to technology lines;

d) Training or providing technical assistance for operating technology lines;

dd) Costs of investment in technology, machinery, equipment, training and technical assistance.

Article 17. Procedures for appraisal or comment on technology applied to investment project in the phase of making decision on investment policy

Procedures for appraisal or comment on applied technology in the phase of issuing investment policy are stipulated as follows:

1. Procedures for appraisal of technology applied to the investment project that uses public investment shall comply with regulations of the Law on Public Investment;

2. Procedures for appraisal of technologies applied the investment projects mentioned in Clause 2 Article 13 herein of which investment policies are subject to decision of the National Assembly shall comply with regulations of the Law on Investment;

3. With regard to the investment projects mentioned in Point a Clause 2 Article 13 herein of which investment policies are subject to decision of the Prime Minister, within a duration of 03 days as from the receipt of sufficient project dossier, the investment registration agency shall send such investment project dossier to the Ministry of Science and Technology for comment on technology;

4. With regard to investment projects mentioned in Point a Clause 2 Article 13 herein of which investment policies are subject to decision of neither the National Assembly nor the Prime Minister, within a duration of 03 days as from the receipt of sufficient project dossiers, the investment registration agencies shall send such investment project dossiers to specialized science and technology agencies affiliated to the Provincial-level People's Committees for comment on technologies;

5. With regard to the investment projects mentioned in Point b Clause 2 Article 13 herein of which investment policies are subject to decision of the Prime Minister, within a duration of 03 days as from the receipt of sufficient project dossiers, the investment registration agencies shall send such investment project dossiers to supervisory ministries for comment on technology;

6. With regard to investment projects mentioned in Point b Clause 2 Article 13 herein of which investment policies are subject to decision of neither the National Assembly nor the Prime Minister, within a duration of 03 days as from the receipt of sufficient project dossiers, the investment registration agencies shall send such investment project dossiers to specialized agencies affiliated to the Provincial-level People's Committees for comment on technologies;

7. The duration for comment on technology applied to an investment project as prescribed in this Article is 15 days from the receipt of sufficient project dossier.

Article 18. Procedures for appraisal or comment on technology applied to investment project in the phase of making investment decision

1. The procedures for appraisal or comment on the technologies applied the projects mentioned in Point a Clause 3 Article 13 herein in the phase of making investment decision is stipulated as below:

a) Procedures for appraisal of technologies applied to nationally significant projects shall comply with regulations of the Law on Investment and the Law on Public Investment;

b) With regard to group-A, B and C state-funded investment projects, within a duration of 05 working days from the receipt of sufficient project dossiers, specialized construction agencies as defined by the Law on Construction shall send written requests enclosed with copies of relevant documents to the same-level agencies performing state management of industries/ sectors for comment on technologies;

c) With regard to group-A, B and C projects using non-state budget funding and other funding sources, the investors shall simultaneously send fundamental designs to specialized construction agencies as defined by the Law on Construction for appraising fundamental designs, excluding appraisal of technological design, and agencies performing state management of industries/ sectors at the same level with specialized construction agencies for comment on technological design.

In case a specialized construction agency performs state management of industry/sector, such specialized construction agency shall take charge of appraising the project’s fundamental design which includes technological design.

d) The duration for comment on technology shall be 20 days for Group-A project, 15 days for Group-B project and 10 days for Group-C project from the receipt of sufficient project dossier; the comment on technology may be extended for a period not exceeding the duration prescribed hereto. Regulatory authorities shall give written notification of extension stating extension reasons to specialized construction agencies or investors.

In case a specialized construction agency performs state management of industry/sector, the duration for appraising technological design shall be included in the duration for appraising fundamental design as prescribed by the Law on Construction.

2. Procedures for appraisal of technologies applied the investment projects mentioned in Point b Clause 3 Article 13 herein shall comply with regulations of the Law on Construction.

3. Procedures for appraisal of technologies applied the investment projects mentioned in Point c Clause 3 Article 13 herein shall comply with regulations of the Law on Public Investment.

Article 19. Elements of appraisal or requiring comment on technology applied to investment project

1. Elements of appraisal or requiring comment on technology in the phase of issuing investment policy include:

a) The rationality of selected technology plan;

b) Technology verification in developed countries (if any);

c) Training or provision of technical assistance for operating technology lines of the investment project (if any);

d) The satisfaction of requirements for application of technology;

dd) Preliminary environmental impact assessment;

e) Technology transfer agreement draft (if any);

g) With regard to an investment project in the high-tech park, elements of appraisal or requiring comment on technology shall comply with provisions in this clause and satisfy criteria or standards under regulations of the law on high technology.  

2. Elements of appraisal or requiring comment on technology in the phase of making investment decision include:

a) The consistency of technology, machinery, equipment with the plan selected in the phase of issuing investment policy; national technical standards/ regulations and other regulations of relevant laws;

b) Products and their quality standards;

c) The compatibility and possibility of supplying materials and fuels to operate technology line, machinery, equipment;

d) Training or providing technical assistance for operating technology line, machinery, equipment;

dd) Costs of investment in technology, machinery, equipment, training and technical assistance.

Article 20. Processes of appraisal or giving opinion about technology applied to investment project

1. Agencies that have the power to appraise or comment on technologies applied to investment projects as prescribed by law shall take charge of holding appraisal of or comment on technologies applied to investment projects; where necessary, the consultation may be held in any of the following methods:

a) Setting up a science and technology consulting board;

b) Collecting opinions from independent consultants.

2. The consulting board is established according to decision of the presiding agency in charge of commenting on technology. The consulting board must work on a democratic, impartial and fair manner in conformity with the laws and professional ethics.  The consulting board shall be responsible for its conclusion and proposals to the establishing agency. Such conclusion and proposals must be made in writing.

3. Members of the consulting board shall assume liabilities before the law for their opinions and keep secret of information concerning the investment project. They must give written opinions.

4. Funding for collecting opinions on technology applied to an investment project:

a) In the phase of issuing investment policy, the collection of opinion on technology shall be funded by state budget;

b)  In the phase of issuing investment decision, expenditure for collecting opinion on technology shall be covered by the investor and included in the project’s total investment.

Article 21. Inspection of technology applied to investment project and technology transfer

1. The application and transfer of technology to an investment project under regulations in Article 13 herein must be properly inspected.

2. Investment authorities shall take charge of and cooperate with specialized authorities in inspecting technologies applied to investment projects when conducting the investment inspection under regulations of law.

3. Science and technology authorities shall take charge of and cooperate with relevant authorities to inspect the technology transfer in the following cases:

a) According to plans;

b) Upon detection of signs of violations against regulations on application and transfer of technologies in course of implementation of investment projects and technology transfer.