Chương IV Luật Đầu tư 2020: Hoạt động đầu tư tại Việt Nam

Chapter IV

INVESTMENT ACTIVITIES IN VIETNAM

Section 1. FORMS OF INVESTMENT

Article 21. Forms of investment

1. Investment in establishment of a business organization.

2. Investment in the form of capital contribution or purchase of shares or stakes.

3. Execution of an investment project.

4. Investment in the form of a business cooperation contract.

5. New forms of investment and types of business organizations prescribed by the Government's regulations.

Article 22. Investment in establishment of a business organization

1. Every investor shall establish a business organization in accordance with the following regulations:

a) A domestic investor shall establish a business organization in accordance with regulations of law on enterprises and law corresponding to each type of business organization;

b) A foreign investor that establishes a business organization shall satisfy market access conditions applied to foreign investors specified in Article 9 of this Law;

c) Before establishing a business organization, the foreign investor must have an investment project and follow the procedures for issuance or adjustment of an investment registration certificate, except for establishment of a small and medium-sized start-up enterprise and a  startup investment fund in accordance with regulations of the Law on Small and Medium-sized Enterprises.

2. From the date on which the enterprise registration certificate or an equivalent document is issued, the business organization established by a foreign investor shall be the investor that executes the investment project set out in the investment registration certificate.

Article 23. Conduct of investment activities by foreign-invested business organizations

1. When establishing a new business organization, making investment by contributing capital, purchasing shares or stakes of a business organization, or making investment under a BCC contract, a business organization must satisfy the same conditions and follow the same investment procedures as foreign investors if:

a) Over 50% of its charter capital is held by a foreign investor(s) or, in case of a partnership, the majority of its general partners are foreigners;

b) Over 50% of its charter capital is held by a business organization(s) mentioned in Point a of this Clause;

c) Over 50% of its charter capital is held by a foreign investor(s) and a business organization(s) mentioned in Point a of this Clause.

2. Business organizations other than those mentioned in Points a, b and c Clause 1 of this Article shall satisfy conditions and follow investment procedures applied to domestic investors when establishing a business organization, when making investment by contributing capital, purchasing shares or purchasing stakes of a business organization or when making investment under a business cooperation contract.

3. If a foreign-invested business organization that is established in Vietnam has a new investment project, procedures for executing such investment project shall be followed without having to establish a new business organization.

4. The Government shall elaborate procedures for establishing business organizations, and conduct of investment activities by foreign investors and foreign-invested business organizations.

Article 24. Investment in form of capital contribution or purchase of shares or stakes

1. Investors are entitled to contribute capital, purchase shares or purchase stakes of business organizations.

2. Foreign investors making investment by contributing capital, purchasing shares and purchasing stakes of business organizations must:

a) satisfy market access conditions applied to foreign investors as prescribed in Article 9 of this Law;

b) ensure national defense and security in accordance with this Law;

c) comply with regulations of the law on land and conditions for receipt of land use rights and conditions for use of land on islands or border or coastal communes.

Article 25. Forms of capital contribution or purchase of shares or stakes

1. A foreign investor may contribute capital to a business organization in the following forms:

a) Purchase of shares of joint-stock companies through the initial public or additional issuance;

b) Contribution of capital to limited liability companies and partnerships;

c) Contribution of capital to other business organizations not mentioned in Point a and Point b of this Clause.

2. A foreign investor may purchase shares or stakes of a business organization in the following forms:

a) Purchase of shares in a joint-stock company from such company or its shareholders;

b) Purchase of stakes of members of a limited liability company to become a member of such limited liability company;

c) Purchase of stakes of a capital contributing member of a partnership to become a capital contributing member of such partnership;

d) Purchase of stakes of members of other economic entities not mentioned in Points a, b and c of this Clause.

Article 26. Procedures for making investment by contributing capital, purchasing shares or purchasing stakes

1. Upon contributing capital, purchasing shares or purchasing stakes of a business organization, the investor shall satisfy conditions and follow procedures for change of members or shareholders in accordance with regulations of law applicable to each type of business organization.

2. A foreign investor shall follow procedures for registration of capital contribution or purchase of shares or stakes of a business organization prior to change of members or shareholders in one of the following cases:

a) The capital contribution or purchase of shares or stakes increases the ownership ratio by foreign investors in a business organization conducting business in the restricted business lines;

b) The capital contribution or purchase of shares or stakes results in a foreign investor or business organization specified in Points a, b and c Clause 1 Article 23 of this Law holding over 50% of the charter capital of the business organization in the following cases: The holding of charter capital by the foreign investor is increased from less than or equal to 50% to over 50%; the holding of charter capital by the foreign investor is increased while such foreign investor is holding over 50% of the charter capital of the business organization.

c) The foreign investor contributes capital, purchases shares or stakes of a business organization that holds a certificate of rights to use land on an island or in a border or coastal commune, or in another area that affects national defense and security.

3. Investors other than those mentioned in Clause 2 of this Article shall follow procedures for changing shareholders/members as prescribed by law when contributing capital, purchasing shares or stakes of business organizations. If such investors wish to register their capital contribution or purchase of shares or stakes of business organizations, regulations in Clause 2 of this Article shall be complied with.

4. The Government shall provide specific regulations on applications and procedures for capital contribution and purchase of shares and stakes of business organizations specified in this Article.

Article 27. Investment under business cooperation contracts

1. Business cooperation contracts signed between domestic investors shall be executed in accordance with the civil law.

2. Procedures for issuance of investment registration certificates in Article 38 of this Law shall apply to business cooperation contracts signed between a domestic investor and a foreign investor, or between foreign investors.

3. Parties to a business cooperation contract shall establish a coordinating board to execute the BCC. Functions, tasks and powers of the coordinating board shall be agreed upon by the parties.

Article 28. Contents of a business cooperation contract

1. A business cooperation contract shall contain at least:

a) Names, addresses and authorized representatives of parties to the contract; business address or project address;

b) Objectives and scope of business;

c) Contributions by the parties to the contract, and distribution of business investment results between the parties;

d) Schedule and duration of the contract;

dd) Rights and obligations of parties to the contract;

e) Adjustment, transfer and termination of the contract;

g) Responsibilities for breaches of the contract; method of dispute settlement.

2. During the execution of a business cooperation contract, parties may reach an agreement on using assets derived from the business cooperation to establish an enterprise in accordance with regulations of law on enterprises.

3. The parties to a business cooperation contract are entitled to agree upon other items which are not contrary to law.

Section 2. APPROVAL FOR INVESTMENT GUIDELINES AND INVESTOR SELECTION

Article 29. Selecting investors to execute investment projects

1. The investor selection shall be carried out by:

a) holding land use right auction in accordance with regulations of law on land; or

b) bidding to select an investor in accordance with regulations of law on bidding; or

c) approving an investor as prescribed in Clauses 3 and 4 of this Article.

2. The method of investor selection mentioned in Points a and b Clause 1 of this Article shall be adopted after the approval for investment guidelines is granted, except for the investment projects not subject to approval for investment guidelines.

3. If a land use right auction is held but only one person registers for participation in the auction or the auction is unsuccessful in accordance with regulations of law on land or if bidding is conducted to select investors but only one investor registers for participation in the bidding in accordance with regulations of law on bidding, the competent authority shall carry out the procedures for approving an investor if the investor satisfies the conditions prescribed by relevant law.

4. For an investment project subject to approval for its investment guidelines, the competent authority shall grant approval for both investment guidelines and investor without holding a land use right auction or bidding to select investor in the following cases:

a) The investor has the land use rights, except for the case where the State expropriates land for national defense and security purposes or for socio-economic development in the national or public interest in accordance with regulations of law on land;

b) The investor receives the agricultural land use rights, receives the agricultural land use rights as contributed capital or leases the agricultural land use rights to execute an investment project on non-agricultural production or business and the land is not subject to land expropriation by the State in accordance with regulations of law on land;

c) The investor executes the investment project in an industrial park or hi-tech zone;

d) Other cases not subject to an auction or bidding in accordance with regulations of law.

5. The Government shall elaborate this Article.

Article 30. The National Assembly’s power to approve investment guidelines

The National Assembly shall grant approval for investment guidelines of the following investment projects:

1. Investment projects that exert great effects or potentially serious effects on the environment, including:

a) Nuclear power plants;

b) Projects that require repurposing of land of special-use forests, headwater protection forests or border protection forest of at least 50 hectares; of sand-fixing and windbreak coastal forests or protection forests for wave prevention of at least 500 hectares; of production forests of at least 1,000 hectares;

2. Investment projects that require repurposing of land meant for wet rice cultivation during with 02 or more crops of at least 500 hectares;

3. Investment projects that require relocation of 20,000 people or more in mountainous areas or 50,000 people or more in other areas;

4. Investment projects that require application of a special mechanism or policy that needs to be decided by the National Assembly.

Article 31. The Prime Minister’s power to approve investment guidelines

Except for the investment projects mentioned in Article 30 of this Law, the Prime Minister shall grant approval for investment guidelines of the following investment projects:

1. Investment projects regardless of capital sources in any one of the following cases:

a) Investment projects that require relocation of 10,000 people or more in mountainous areas or 20,000 people or more in other areas;

b) Investment projects on construction of: airports and aerodromes; runways of airports and aerodromes; international passenger terminals; cargo terminals of airports and aerodromes with a capacity of at least 1 million tonnes per year;

c) New investment projects on passenger air transport business;

d) Investment projects on construction of ports and wharves of special seaports; ports and wharves in which investment is at least VND 2,300 billion within the category of Class I seaports;

dd) Investment projects on petroleum processing;

e) Investment projects which involve betting and casino services, excluding business in prize-winning electronic games for foreigners;

g) Investment projects on construction of residential housing (for sale, lease or lease purchase) and urban areas that use at least 50 hectares of land or less than 50 hectares of land but with a population of at least 15,000 people in an urban area; or that use at least 100 hectares of land or less than 100 hectares of land but with a population of at least 10,000 people in a non-urban area; or investment projects regardless of the area of land used or population within the safety perimeter of relics recognized by the competent authority as the national and special national relics;

h) Investment projects on construction and operation of infrastructure in industrial zones and export processing zones.

2. Foreign investors’ investment projects in the following fields: provision of telecommunications services with network infrastructure; afforestation; publication, press;

3. Investment projects which at the same time fall within the power of at least two provincial People's Committees to grant approval for investment guidelines;

4. Other investment projects subject to approval for their investment guidelines or subject to investment decision by the Prime Minister as prescribed by law.

Article 32. The power of provincial People’s Committees to approve investment guidelines

1. Except for the investment projects set out in Articles 30 and 31 of this Law, the provincial People’s Committees shall grant approval for investment guidelines of the following investment projects:

a) Investment projects that request the State to allocate or lease out land without auction or bidding for or receipt of land use rights, and investment projects that request permission to repurpose land, except for cases of allocation, lease or permission for repurposing of land of households or individuals not subject to the written approval by the provincial People's Committee in accordance with regulations of law on land;

b) Projects on construction of residential housing (for sale, lease or lease purchase) and urban areas that use at least 50 hectares of land or less than 50 hectares of land but with a population of at least 15,000 people in an urban area; or that use at least 100 hectares of land or less than 100 hectares of land but with a population of at least 10,000 people in a non-urban area; or investment projects regardless of the area of land used or population within a restricted development area or within an historic inner area (determined in accordance with urban area planning projects) of a special urban area;

c) Projects on investment in golf course construction and business;

d) Investment projects of foreign investors and foreign-invested business organizations executed on islands or in border or coastal communes; in other areas affecting national defense and security.

2. The investment guidelines of the investment projects in Points a, b and d Clause 1 of this Article executed in industrial parks, export-processing zones, hi-tech zones and economic zones in conformity with planning approved by competent authorities shall be approved by management boards of such industrial parks, export-processing zones, hi-tech zones and economic zones.

3. The Government shall elaborate this Article.

Article 33. Applications for and contents of appraisal of requests for investment guideline approval

1. An application for approval for investment guidelines of an investment project proposed by an investor includes:

a) An application form for execution of the investment project, including a commitment to incur all costs and risks if the project is not approved;

b) A document about the investor’s legal status;

c) Document(s) proving the financial capacity of the investor including at least one of the following documents: the investor’s financial statements for the last two years; commitment of a parent company to provide financial support; commitment of a financial institution to provide financial support; guarantee for the investor’s financial capacity; other document proving the investor’s financial capacity;

d) Proposal for the investment project including the following main contents: investor or method of investor selection, investment objectives, investment scale, investment capital and plan for raising capital, location, duration and schedule of the investment project, information about the current use of land in the location of the project and proposed demand for land use (if any), demand for labor, proposal for investment incentives, impact and socio – economic efficiency of the project and preliminary assessment of environmental impact (if any) in accordance with regulations of law on environmental protection.

If the law on construction requires formulation of a pre-feasibility study report, the investor is entitled to submit the pre-feasibility study report instead of a proposal for the investment project;

dd) If the project does not require the State to allocate or lease out land or to permit land repurposing, a copy of the document regarding the land use rights or other document identifying the right to use the location for execution of the investment project is required to be submitted;

e) Contents of the explanation for the technology to be used in the investment project if the project requires appraisal and collection of opinions on the technology in accordance with the Law on Technology Transfer;

g) The business cooperation contract if the investment project is executed under a business cooperation contract;

h) Other documents relating to the investment project, and requirements on the eligibility and capacity of the investor in accordance with regulations of law (if any).

2. An application for approval for investment guidelines of an investment project prepared by a competent authority includes:

a) An application for approval for investment guidelines;

b) Proposal for the investment project including the following main contents: investment objectives, investment scale, investment capital and plan for raising capital, location, duration and schedule of the investment project; information about the current use of land in the location of the project, conditions for land expropriation if the project is subject to land expropriation, expected demand for land use (if any); preliminary assessment of environmental impact (if any) in accordance with the law on protection of the environment protection; expected method of investor selection and conditions applicable to the investor (if any); and special mechanisms and policies (if any).

If the law on construction requires formulation of a pre-feasibility study report, the competent authority is entitled to submit the pre-feasibility study report instead of a proposal for the investment project.

3. Contents of appraisal of the request for investment guideline approval include:

a) Assessment of the conformity of the investment project with national planning, regional planning, provincial planning, urban planning and special economic - administrative unit planning (if any);

b) Assessment of the demand for land use;

c) Preliminary assessment of the socio-economic efficiency of the project; and preliminary assessment of environmental impact (if any) in accordance with regulations of law on environmental protection;

d) Assessment of investment incentives and conditions for enjoying investment incentives (if any);

dd) Assessment of the technology to be used in the investment project if the project requires appraisal and collection of opinions on the technology in accordance with the Law on Technology Transfer;

e) Assessment of conformity of the investment project with the objectives and orientation for urban development, and residential housing development programs and plans; preliminary plan for phasing of investment with a view to synchronism assurance; preliminary structure of residential housing products and provision of land for social residential housing development; preliminary plan for investment in construction and management of urban infrastructure inside and outside the project in the case of an project on investment in construction of residential houses and urban areas.

4. Contents of appraisal of the request for both investment guideline approval and investor approval:

a) The contents specified in Clause 3 of this Article;

b) The ability to satisfy the conditions for land allocation or land lease in the case of land allocation or land lease without auction of the land use right or bidding for investor selection; the ability to satisfy the conditions for land repurposing if the project requires land repurposing;

c) Assessment of satisfaction of market access conditions applied to foreign investors (if any);

d) Other conditions applicable to the investor in accordance with relevant regulations of law.

5. The Government shall elaborate this Article.

Article 34. Procedures for investment guideline approval by the National Assembly

1. The application specified in Clauses 1 and 2 Article 33 of this Law shall be submitted to the Ministry of Planning and Investment.

2. Within 15 days from the date on which the sufficient application is received, the Ministry of Planning and Investment shall submit a report to the Prime Minister and request establishment of a State Appraisal Council.

3. Within 90 days from the date of its establishment, the State Appraisal Council shall organize appraisal of the application and prepare an appraisal report including the contents set out in Article 33 of this Law, then submit it to the Government.

4. At least 60 days before the opening of the meeting of the National Assembly, the Government shall prepare an application for investment guideline approval and submit it to the National Assembly’s agency presiding over validation.

5. The application for investment guideline approval includes:

a) The Government’s application form;

b) The application mentioned in Clause 1 of this Article;

c) The State appraisal council’s appraisal report;

d) Other relevant documents.

6. Contents of validation of the request for investment guideline approval include:

a) Fulfillment of the criteria for determining that the investment project is subject to approval for its investment guidelines by the National Assembly;

b) Necessity of executing the investment project;

c) Conformity of the investment project with national planning, regional planning, provincial planning, urban planning and special economic - administrative unit planning (if any);

d) Objectives, scale, location, duration, execution schedule of the investment project, demand for land use, land clearance and relocation plan, options to select primary technologies, and solutions for environmental protection;

dd) Capital investment and capital sources;

e) Assessment of socio-economic efficiency, national defense, security assurance and sustainable development of the investment project;

g) Special policies and mechanisms; investment incentives, investment assistance and conditions for application thereof (if any).

7. The Government and relevant organizations or individuals shall provide sufficient information and documents serving validation; provide explanation for the project contents at the request of the National Assembly’s agency in charge of validation.

8. The National Assembly shall consider passing a Resolution on approval for investment guidelines, which consists of the contents prescribed in Clause 1 Article 3 of this Law.

9. The Government shall elaborate on the procedures for appraisal by the State Appraisal Council.

Article 35. Procedures for investment guideline approval by the Prime Minister

1. The application specified in Clauses 1 and 2 Article 33 of this Law shall be submitted to the Ministry of Planning and Investment.

2. Within 03 working days from the date on which the sufficient application is received, the Ministry of Planning and Investment shall send relevant documents to relevant regulatory agencies to seek their opinions about the contents specified in Article 33 of this Law.

3. Within 15 days from receipt of the written request for opinions, the requested agencies shall send their appraisal opinions on the contents under their management to the Ministry of Planning and Investment.

4. Within 40 days from the receipt of the application, the Ministry of Planning and Investment shall appraise it and prepare an appraisal report including the contents specified in Article 33 of this Law, and then submit it to the Prime Minister for investment guidelines approval.

5. The Prime Minister shall consider granting investment guideline approval comprising the contents set out in Clause 1 Article 3 of this Law.

6. Regarding the investment project specified in Clause 3 Article 31 of this Law, the Prime Minister shall appoint an investment registration authority of a province or central-affiliated city to issue an investment registration certificate to the entire project.

7. The Government shall elaborate procedures for appraising the investment projects whose investment guidelines are approved by the Prime Minister.

Article 36. Procedures for investment guideline approval by provincial People’s Committees

1. The application specified in Clauses 1 and 2 Article 33 of this Law shall be submitted to the investment registration authority.

Within 35 days from the receipt of the application, the investment registration authority shall notify results to the investor.

2. Within 03 working days from the date on which the sufficient application is received, the investment registration authority shall send relevant documents to relevant regulatory agencies to seek their opinions about the contents specified in Article 33 of this Law.

3. Within 15 days from receipt of the written request for opinions, the requested agencies shall send their appraisal opinions on the contents under their management to the investment registration authority.

4. Within 25 days from the receipt of the application, the investment registration authority shall prepare an appraisal report with the contents prescribed in Article 33 of this Law and submit it to the provincial People's Committee.

5. Within 07 working days from the receipt of the application and the appraisal report, the provincial People’s Committee shall grant the investment guideline approval, or provide a written explanation in the case of refusal.

6. The provincial People’s Committee shall consider granting investment guideline approval comprising the contents set out in Clause 1 Article 3 of this Law.

Section 3. PROCEDURES FOR ISSUANCE, ADJUSTMENT AND REVOCATION OF INVESTMENT REGISTRATION CERTIFICATE

Article 37. Cases in which the investment registration certificate is required

1. The investment registration certificate is required in the following cases:

a) Investment projects of foreign investors;

b) Investment projects of the business organizations mentioned in Clause 1 Article 23 of this Law.

2. Cases in which the investment registration certificate is not required:

a) Investment projects of domestic investors;

b) Investment projects of the business organizations mentioned in Clause 2 Article 23 of this Law;

c) Investment in the form of capital contribution, purchase of shares or stakes in a business organization;

3. Domestic investors and the business organizations mentioned in Clause 2 Article 23 of this Law shall execute the investment projects mentioned in Article 30, Article 31 and Article 32 of this Law after their investment guidelines are approved.

4. Any investor that wishes to obtain an investment registration certificate for an investment project prescribed in Point a or Point b Clause 2 of this Article shall follow the procedures in Article 38 of this Law.

Article 38. Procedures for issuance of the investment registration certificate

1. If the investment project is subject to approval for its investment guidelines as prescribed in Article 30, Article 31 and Article 32 of this Law, the investment registration authority shall issue the investment registration certificate to the investor within:

a) 05 working days from the receipt of the written approval for investment guidelines and the written approval for investor with respect to the investment project that is subject to issuance of an investment registration certificate;

b) 15 days from the receipt of the investor’s application for investment registration certificate with respect to the investment project other than that specified in Point a of this Clause.

2. If the investment project is not subject to approval for its investment guidelines as prescribed in Article 30, Article 31 and Article 32 of this Law, the investor shall be issued with the investment registration certificate if the following conditions are met:

a) The investment project does not involve any banned business line;

b) There is a location for execution of the investment project;

c) The investment project is conformable with the planning specified in Point a Clause 3 Article 33 of this Law;

d) The investment per m2 (or investment per employee) is not smaller than the minimum requirement.

dd) Market access conditions applied to foreign investors are satisfied.

3. The Government shall elaborate conditions, applications and procedures for issuance of the investment registration certificate.

Article 39. The power to issue, adjust and revoke investment registration certificates

1. Management boards of industrial parks, export-processing zones, hi-tech zones and economic zone shall issue, adjust and revoke investment registration certificates with regard to the investment projects located therein, except for the case specified in Clause 3 of this Article.

2. Provincial Departments of Planning and Investment shall issue, adjust and revoke investment registration certificates with respect to the investment projects outside industrial parks, export-processing zones, hi-tech zones and economic zones, except for the case in Clause 3 of this Article.

3. The investment registration authority of the administrative division where the investor executes the investment project, places or intends to place the head office or operating office to execute the investment project shall issue, adjust and revoke investment registration certificates with respect to the following investment projects:

a) Investment projects that are executed in at least 02 provinces;

b) Investment projects that are executed both inside and outside industrial parks, export processing zones, hi-tech zones and economic zones;

c) Investment projects which are executed inside industrial parks, export processing zones, hi-tech zones or economic zones where the industrial park, export processing zone, hi-tech zone or economic zone management boards have not yet been established or which are not under the management of the industrial park, export processing zone, hi-tech zone or economic zone management boards.

4. The authority that receives investment project dossiers is the one that has the power to issue investment registration certificates, except for the cases specified in Articles 34 and 35 of this Law.

Article 40. Contents of investment registration certificate

1. Name of the investment project.

2. The investor.

3. Investment project code.

4. Location and land area of the investment project.

5. Objectives and scale of the project.

6. Capital investment in the investment project (including the investor's contributed capital and raised capital).

7. Duration of the investment project.

8. Project execution schedule, including:

a) Capital contribution and capital raising schedule;

b) Schedule of achievement of primary operational objectives of the investment project; execution schedule of each stage (if the project is divided into multiple stages);

9. Investment incentives or investment assistance, and bases or conditions for application thereof (if any).

10. Conditions applied to the investor executing the investment project (if any).

Article 41. Adjusting the investment project

1. During execution of an investment project, the investor is entitled to adjust its objectives, transfer the project in part or in full, merge projects or fully divide or partially divide a project into multiple projects or exercise the rights to use land and property on land which is part of the investment project to contribute capital to establish an enterprise, carry out business cooperation or carry out other activities, and the aforementioned activities shall comply with regulations of law.

2. The investor shall follow procedures for adjusting the investment registration certificate if the adjustment to the investment project changes any content of the investment registration certificate.

3. The investor that has an investment project whose investment guidelines have been approved shall follow procedures for approving the adjustment to the investment guidelines in one of the following cases:

a) Any objective specified in the written approval for investment guidelines is changed; any objective that is subject to approval for investment guidelines is added;

b) The land area is increased or reduced by 10% or more than 30 hectares or the investment location is changed;

c) The total investment capital is increased or reduced by 20% or more, thereby changing the scale of the investment project;

d) Extension of the project execution schedule results in total duration of the project being extended by more than 12 months compared to that stated in the first written approval for investment guidelines;

dd) The duration of the investment project is adjusted;

e) Any technology that has been appraised or about which opinions have been collected during the process of approving the investment guidelines is changed;

g) There is a change of the investor in the investment project whose investment guidelines are approved together with approval for the investor before the exploitation or operation of the project or there is a change of conditions (if any) applicable to the investor.

4. With respect to the investment project whose investment guidelines are approved, the investor is not allowed to extend the investment execution schedule by more than 24 months compared to that stated in the first written approval for investment guidelines, except for one of the following cases:

a) It is necessary to remedy the consequences of an event of force majeure in accordance with the civil law and the land law;

b) The project execution schedule is adjusted because the State delays allocating or leasing out land to the investor or allowing the investor to repurpose land.

c) The project execution schedule is adjusted at the request of a regulatory agency or the regulatory agency delays in performing administrative procedures;

d) The investment project is adjusted because the regulatory agency changes the planning;

dd) Any objective specified in the written approval for investment guidelines is changed; any objective that is subject to approval for investment guidelines is added;

e) The total investment capital is increased or reduced by 20% or more, thereby changing the scale of the investment project.

5. The regulatory agency that has the power to approve investment guidelines also has the power to approve the adjustment to investment guidelines.

If a request for adjustment of an investment project results in the project being subject to approval for its investment guidelines by an authority at a higher level, such authority will have the power to approve the adjustment to investment guidelines as prescribed in this Article.

6. Procedures for adjusting investment guidelines are specified in Articles 34, 35 and 36 of this Law.

7. If a request for adjustment of an investment project results in the project being subject to approval for its investment guidelines, the investor has to apply for approval for investment guidelines before adjusting the investment project.

8. The Government shall elaborate this Article.

Section 4. EXECUTION OF INVESTMENT PROJECTS

Article 42. Rules for execution of investment projects

1. For a project subject to approval for its investment guidelines, the approval for investment guidelines shall be granted before the investor executes the investment project.

2. For a project subject to issuance of an investment registration certificate, the investor shall follow the procedures for issuance of the investment registration certificate before executing the investment project.

3. Investors shall comply with regulations of this Law and the laws on planning, land, environment, construction, labor and fire prevention and fighting; other relevant regulations of law, written approval for investment guidelines (if any) and the investment registration certificate (if any) during execution of their investment projects.

Article 43. Guarantee for execution of investment projects

1. The investor shall pay a deposit or have a bank guarantee for investment project execution if the project uses land allocated or leased out by the State or is permitted by the State to repurpose land, except for the following cases:

a) The investor is the successful bidder for the right to use a land area that is allocated by the State for land levy or leased out by the State for a lump-sum rent;

b) The investor wins bidding for execution of an investment project using land;

c) The State allocates or leases out land to the investor on the basis of receipt of an investment project for which a deposit has already been paid or for which the capital has been fully contributed or raised following the schedule specified in the written approval for investment guidelines or the investment registration certificate;

d) The State allocates or leases out land to the investor for execution of an investment project on the basis of receipt of the land use right and assets on land from another land user.

2. Based on the scale, nature and execution schedule of each investment project, the deposit for assurance of project execution is 01% - 03% of the investment capital of the project. If a project comprises multiple investment phases, the amount of deposit shall be paid and returned in each phase of execution of the investment project, except for the case in which the deposit is not returned.

3. The Government shall elaborate this Article.

Article 44. Duration of investment projects

1. The duration of an investment project inside an economic zone shall not exceed 70 years.

2. The duration of an investment project outside an economic zone shall not exceed 50 years. The duration of an investment project in a disadvantaged area or extremely disadvantaged area or a project with large investment capital but with slow rate of capital recovery may be longer but shall not exceed 70 years.

3. If an investment project uses land allocated or leased out by the State, but the transfer of land is delayed, the delay shall not be included in the project duration or execution schedule.

4. Upon expiry of the duration of an investment project, if the investor wishes to keep executing the investment project and satisfies the conditions as prescribed by law, the duration of the investment project may be extended but shall not exceed the maximum prescribed in Clauses 1 and 2 of this Article, except for the following investment projects:

a) Investment projects using obsolete, environment threatening or resource-intensive technologies;

b) Investment projects in which the investor must transfer assets without reimbursement to the State of Vietnam or the Vietnamese side.

5. The Government shall elaborate this Article.

Article 45. Determination of value of investment capital; assessment of value of investment capital; assessment of machinery, equipment and technological lines

1. Every investor shall ensure the quality of machinery, equipment and technological lines for execution of investment projects in accordance with regulations of law.

2. The investor shall self-determine the value of the investment capital of the investment project after the project is put into operation.

3. Where necessary, to ensure state management of science and technology or to form a basis for tax calculation, the competent authority has the power to require independent assessment of the value of the investment capital, quality and value of machinery, equipment and technological lines after the investment project is put into operation.

4. The investor must bear any expenses for assessment if the assessment results lead to an increase in the tax obligations discharged to the State.

5. The Government shall elaborate this Article.

Article 46. Transfer of investment projects

1. An investor is entitled to transfer part or whole of the investment project to another investor when the following conditions are satisfied:

a) The investment project or the part of the investment project which is transferred has not been terminated in accordance with Clauses 1 and 2 Article 48 of this Law;

b) The foreign investor receiving the investment project or part of the investment project must satisfy the conditions set out in Clause 2 Article 24 of this Law;

c) The conditions set forth in the law on land are complied with if the transfer of an investment project is associated with transfer of the land use rights/assets on land;

d) The conditions set forth in the laws on residential housing and on real estate business are complied with in the case of transfer of a residential housing construction project or real estate project;

dd) The conditions set forth in the written approval for investment guidelines or the investment registration certificate or in relevant laws (if any) are complied with;

e) Upon transfer of an investment project, in addition to compliance with this Article, the state-owned enterprise shall comply with the Law on Management and Use of State Capital Invested in Manufacturing and Business Activities of Enterprises before making any adjustment to the investment project.

2. If the conditions for transfer set forth in Clause 1 of this Article are satisfied, the investor shall follow the procedures for transferring the investment project in part or in full as follows:

a) In the case of an investment project in which the investor has been approved in accordance with Article 29 of this Law and the investment project has been issued with an investment registration certificate, the investor shall follow procedures for adjusting the investment project as prescribed in Article 41 of this Law;

b) For an investment project other than that prescribed in Point a of this Clause, the transfer of the investment project or transfer of asset ownership to the investor receiving the investment project shall be carried out in accordance with the civil law, the law on enterprises, the law on real estate business and other regulations of law.

Article 47. Suspension of investment projects

1. When suspending an investment project, the investor must notify the investment registration authority in writing. If the project has to be suspended in a force majeure event, the State shall allow the investor to be exempt from paying land rents or reduce land levies for the suspension period with a view to remedying consequences caused by the force majeure event.

2. The investment authority shall decide to suspend an investment project in part or in full in the following cases:

a) To protect sites/monuments, relics, antiques or national treasures in accordance with the Law on Cultural Heritage;

b) To rectify a violation of the law on environmental protection at the request of the environment authority;

c) To take measures to ensure occupational safety at the request of the labor authority;

d) Pursuant to a judgment or decision of a court or an arbitral award;

dd) The investor fails to adhere to the written approval for investment guidelines or the investment registration certificate and recommits administrative violations after incurring penalties.

3. The Prime Minister shall decide to suspend a project in part or in full if the project execution is detrimental or potentially detrimental to national defense and security at the request of the Ministry of Planning and Investment.

4. The Government shall elaborate conditions, procedures and time limit for suspending investment projects in accordance with this Article.

Article 48. Termination of investment projects

1. An investor shall terminate their investment activities and/or investment project in the following cases:

a) The investor decides to terminate the project;

b) The project has to be terminated according to the conditions set out in the contract or charter of the enterprise;

c) The project duration is over.

2. The investment registration authority shall terminate an investment project in part or in full in the following cases:

a) The investor fails to overcome the difficulties that lead to project suspension in the cases mentioned in Clause 2 and Clause 3 Article 47 of this Law;

b) The investor is no longer permitted to keep using the investment location and fails to complete the procedures for change of investment location within 06 months from the date on which the investor is no longer permitted to use the investment location, except for the case specified in Point d of this Clause;

c) The investment registration authority cannot contact the investor or the investor’s legal representative after 12 months from the date of suspension of the project;

d) Land reserved for the investment project is expropriated by the State for the reason that the land is not used or the land use is delayed in accordance with regulations of law on land;

dd) The investor fails to pay the deposit or obtain a bank guarantee as prescribed by law if project execution security is required;

e) The investor conducted the investment activities on the basis of a sham civil transaction in accordance with the civil law;

g) The investment project is terminated according to a judgment or decision of a court or an arbitral award;

3. Regarding a project subject to approval for its investment guidelines, the investment registration authority shall terminate the investment project after obtaining the opinion of the authority granting approval for investment guidelines.

4. The investor shall themself liquidate the investment project in accordance with the law on liquidation of assets upon termination of the investment project, except for the case specified in Clause 5 of this Article.

5. The settlement of the rights to use land and property on land upon termination of the investment project shall comply with the law on land and other relevant regulations of law.

6. The investment registration authority shall decide to revoke the investment registration certificate if the investment project is terminated in accordance with Clause 2 of this Article, except for the case of termination of part of the investment project.

7. The Government shall elaborate procedures for terminating investment projects in accordance with this Article.

Article 49. Establishment of operating office of foreign investor to business cooperation contract

1. A foreign investor to a business cooperation contract may establish an operating office in Vietnam to execute the contract. The location of the operating office shall be decided by the foreign investor depending on the requirements for contract execution.

2. The operating office of a foreign investor to a business cooperation contract has its own seal; the foreign investor may open an account, hire employees, sign contracts and carry out business activities under the business cooperation contract and Certificate of registration of operating office.

3. The foreign investor to the business cooperation contract shall submit the application for registration of operating office to the investment registration authority of the area where the operating office is intended to be located.

4. An application for establishment of an operating office consists of:

a) An application form which specifies the name and address of the representative office in Vietnam (if any) of the foreign investor to the business cooperation contract; name and address of the operating office; contents, duration, and operating scope of the operating office; full name, residence, ID Card or Citizen ID Card number or passport number of the head of the operating office;

b) The decision of the foreign investor to the business cooperation contract for establishment of an operating office;

c) A copy of the decision to appoint the head of the operating office;

d) A copy of the business cooperation contract.

5. Within 15 days from the receipt of the application prescribed in Clause 4 of this Article, the investment registration authority shall issue the Certificate of registration of operating office to the foreign investor to the business cooperation contract.

Article 50. Shutdown of operating office of foreign investor to business cooperation contract

1. Within 07 working days from the day on which the decision to shut down the operating office is issued, the foreign investor shall send a folder to the investment registration authority of the area where the operating office is located.

2. The folder consists of:

a) A decision to shut down the operating office in the case of shutdown of the operating office ahead of schedule;

b) A list of creditors and amount of debts which have been paid;

c) A list of employees and their benefits provided;

d) A tax authority’s certification of fulfillment of tax liability;

dd) A social security authority’s certification of fulfillment of social insurance obligations;

e) The certificate of operating office registration;

g) A copy of the investment registration certificate;

h) A copy of the business cooperation contract.

3. Within 15 days from the receipt of the application prescribed in Clause 2 of this Article, the investment registration authority shall issue the decision to shut down the operating office.