Phụ lục IV: Danh mục ngành, nghề đầu tư kinh doanh có điều kiện

LAW

ON INVESTMENT

Pursuant to Constitution of Socialist Republic of Vietnam;

The National Assembly promulgates the Law on Investment.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Law provides for business investment activities in Vietnam and outward business investment activities.

Article 2. Regulated entities

This Law applies to investors, and agencies, organizations and individuals (hereinafter referred to as “entities”) involved in business investment activities.

Article 3. Definitions

For the purposes of this Law, the terms below are construed as follows:

1. “approval for investment guidelines” means a competent authority approving the objectives, location, scale, schedule and duration of a project; investor or form of selection of investor and special mechanisms or special policies (if any) to execute an investment project.

2. “investment registration authority” means a regulatory agency that issues, adjusts and revokes investment registration certificates.

3. “national investment database” means a collection of data on investment projects nationwide that is connected to databases of relevant agencies.

4. “investment project” means a collection of proposals for the expenditure of mid-term or long-term capital to carry out investment activities in a particular administrative division over a certain period of time.

5. “expansion project” means an investment project on development of a running project by expanding the scale, improving the capacity, applying new technologies, reducing pollution or improving the environment.

6. “new investment project” means a project that is executed for the first time or a project independent from any other running project.

7. “start-up project” means an investment project that implements ideas on the basis of exploiting intellectual property, technologies and new business models and is able to grow quickly.

8. “business investment” means an investor investing capital to do business.

9. “business investment conditions” mean those which must be satisfied by an individual or organization upon making business investment in conditional business lines.

10. “market access conditions applied to foreign investors” mean those which must be satisfied by foreign investors to make investment in the List of business lines with prohibited and restricted market access (hereinafter referred to as “the Negative List for Market Access”) specified in Clause 2 Article 9 of this Law.

11. “investment registration certificate” means a physical or electronic document bearing information registered by an investor about an investment project.

12. “National Investment Information System” means a system of professional information meant for monitoring, assessment, and analysis of nationwide investment in order to serve state management tasks and assist investors in carrying out investment activities.

13. “outward investment activity” means an investor transferring investment capital from Vietnam to a foreign country and using profit obtained from such investment capital to carry out outward investment activities in the foreign country.

14. “business cooperation contract” means a contract between investors for business cooperation and distribution of profits or products without establishment of a business organization.

15. “export-processing zone” means an industrial park specialized in manufacturing of exported products or provision of services for manufacturing of exported products and export.

16. “industrial park” means an area with a defined geographical boundary specialized in production of industrial goods and provision of services for industrial production.

17. “economic zone” means an area with a defined geographical boundary which consists of multiple dedicated areas and is meant to achieve the objectives of investment attraction, socio-economic development and protection of national defense and security.

18. “investor” means an organization or individual that carries out business investment activities. Investors include domestic investors, foreign investors and foreign-invested business organizations.

19. “foreign investor” means an individual holding a foreign nationality or an organization established under foreign laws and carrying our business investment activities in Vietnam.

20. “domestic investor” means an individual holding Vietnamese nationality or a business organization whose members or shareholders are not foreign investors.

21. “business organization” means an organization established and operating in accordance with Vietnam’s laws. Business organizations include enterprises, cooperatives, cooperative unions and other organizations that carry out business investment activities.

22. “foreign-invested business organization” means an organization whose members or shareholders are foreign investors.

23. “investment capital” means money and other assets prescribed by the civil law and international treaties to which the Socialist Republic of Vietnam is a signatory for the purpose of carrying out business investment activities..

Article 4. Application of the Law on Investment and relevant laws

1. Business investment activities made within Vietnam’s territory must comply with this Law and relevant laws.

2. Where regulations on banned business lines or conditional business lines in this Law are different from those laid down in other laws promulgated before the effective date of this Law, regulations of this Law shall apply.

Regulations on names of banned business lines and conditional business lines in other laws must be consistent with those set out in Article 6 and Appendices to the Law on Investment.

3. Where regulations on procedures for making business investment or on investment assurance in this Law are different from those laid down in other laws promulgated before the effective date of this Law, regulations of this Law shall apply, except for the following cases:

a) Investment in, management and use of state capital invested in enterprises, which are prescribed in the Law on Management and Use of State Capital Invested in Manufacturing and Business Activities of Enterprises;

b) Power and procedures for making public investment and management and use of public investment capital, which are prescribed in the Law on Public Investment;

c) Power and procedures for making investment and executing projects; law governing project contracts; investment assurance, mechanisms for management of state capital applied to PPP projects, which are prescribed in the Law on Public Private Partnership Investment Form;

d) Execution of construction, housing and urban area projects in compliance with the Law on Construction, Law on Housing and Law on Real Estate Business after a competent authority grants approval for the investment guidelines or adjustment to the investment guidelines in accordance with regulations of the Law on Investment;

dd) Power, procedures and conditions for making business investment, which are prescribed in the Law on Credit Institutions, Law on Insurance Business and Law on Petroleum;

e) Power, procedures and conditions for making business investment, carrying out securities activities and operating in the securities market of Vietnam, which are prescribed in the Law on Securities.

4. Where a law promulgated after the effective date of this Law contains regulations on investment contradicting regulations of this Law, the former is required to specify the cases to which its regulations apply and the cases to which this Law applies.

5. With regard to any contract to which at least a party is a foreign investor or a business organization defined in Clause 1 Article 23 of this Law, the parties may reach an agreement on whether to apply foreign laws or international practice if such agreement does not contravene Vietnam’s laws.

Article 5. Policies on business investment

1. Investors are entitled to carry out business investment activities in the business lines that are not banned by this Law. Regarding conditional business lines, investors must satisfy business investment conditions as prescribed by law.

2. Investors may decide their business investment activities on their own and take responsibility therefor in accordance with this law and relevant laws; may access and make use of loan capital, assistance funds, land, and other resources as prescribed by law.

3. Any business investment activity of an investor shall be suspended, stopped or terminated if such activity harms or potentially harms national defense and security.

4. The ownership of assets, capital, income, other lawful rights and interests of investors are recognized and protected by the State.

5. The State shall treat investors equitably; introduce policies to encourage and enable investors to carry out business investment activities and to ensure sustainable development of economic sectors.

6. International investment-related treaties to which Socialist Republic of Vietnam is a signatory are upheld and implemented by the State.

Article 6. Banned business lines

1. The business investment activities below are banned:

a) Business in narcotic substances specified in Appendix I hereof;

b) Business in chemicals and minerals specified in Appendix II hereof;

c) Business in specimens of wild flora and fauna specified in Appendix 1 of Convention on International Trade in Endangered Species of Wild Fauna and Flora; specimens of rare and/or endangered species of wild fauna and flora in Group I of Appendix III hereof;

d) Prostitution business;

dd) Human trafficking; trade in human tissues, corpses, human organs and human fetuses;

e) Business activities pertaining to asexual human reproduction;

g) Trade in firecrackers.

h) Provision of debt collection services.

2. The Government’s regulations shall apply to production and use of the products mentioned in Points a, b, and c Clause 1 of this Article during analysis, testing, scientific research, medical research, pharmaceutical production, criminal investigation, national defense and security protection.

Article 7. Conditional business lines

1. Conditional business lines are the business lines in which the business investment must satisfy certain conditions for reasons of national defense and security, social order and security, social ethics, or public health.

2. A List of conditional business lines is provided in Appendix IV hereof.

3. Conditions for making business investment in the business lines mentioned in Clause 2 of this Article are specified in the Laws and Resolutions of the National Assembly, Ordinances and Resolutions of the Standing Committee of the National Assembly, Decrees of the Government and international treaties to which the Socialist Republic of Vietnam is a signatory. Ministries, ministerial agencies, People’s Councils, People’s Committees at all levels, and other entities must not issue regulations on conditions for making business investment.

4. Conditions for making business investment must be appropriate for the reasons in Clause 1 of this Article and be public, transparent, objective and economic in terms of time and costs of compliance by investors.

5. Regulations on business investment conditions shall contain the following:

a) Subjects and scope of the business investment conditions;

b) Forms of fulfillment of the business investment conditions;

c) Contents of the business investment conditions;

d) Documentation and administrative procedures for compliance with the business investment conditions (if any);

dd) Regulatory agencies and agencies that have the power to handle administrative procedures regarding business investment conditions;

e) Effective dates of licenses or certificates or other written confirmation or approval (if any).

6.  Business investment conditions to be fulfilled are those specified in:

a) Licenses;

b) Certificates;

c) Credentials;

d) Written confirmation or written approval;

dd) Other requirements that must be satisfied by individuals and business organizations to conduct business investment activities without obtaining written confirmation from a competent authority.

7. The conditional business lines and the corresponding conditions shall be posted on the National Business Registration Portal.

8. The Government shall elaborate the announcement and control of business investment conditions.

Article 8. Amendment and addition of the List of banned business lines, the List of conditional business lines and the business investment conditions

1. Depending on the socio-economic conditions and state management requirements in each period, the Government shall review the banned business lines, the List of conditional business lines and submit amendments and additions to Article 6, Article 7 and Appendices attached hereto to the National Assembly in accordance with the simplified procedures.

2. The amendment and addition of conditional business lines or investment business conditions must comply with Clauses 1, 3, 4, 5 and 6 Article 7 of this Law.

Article 9. Business lines with prohibited and restricted market access and market access conditions applied to foreign investors

1. Market access conditions applied to foreign investors are the same as those applied to domestic investors, except for the case specified in Clause 2 of this Article.

2. Pursuant to Laws and Resolutions of the National Assembly, Ordinances and Resolutions of the Standing Committee of the National Assembly, Decrees of the Government and international treaties to which the Socialist Republic of Vietnam is a signatory, the Government shall promulgate a Negative List for Market Access, including:

a) Prohibited business lines;

b) Restricted business lines.

3. Market access conditions applied to foreign investors specified in the Negative List for Market Access include:

a) Holding of charter capital by the foreign investor in a business organization;

b) Investment method;

c) Scope of investment;

d) Capacity of the investor; partners participating in the investment activities;

dd) Other conditions specified in the Laws and Resolutions of the National Assembly, Ordinances and Resolutions of the Standing Committee of the National Assembly, Decrees of the Government and international treaties to which the Socialist Republic of Vietnam is a signatory.

4. The Government shall elaborate this Article.

Chapter II

INVESTMENT GUARANTEES

Article 10. Guarantees for asset ownership

1. Lawful assets of investors shall not be nationalized or confiscated by administrative measures.

2. Where an asset is bought or requisitioned by the State for reasons of national defense and security, national interests, state of emergency or natural disaster management, the investor shall be reimbursed or compensated in accordance with regulations of law on asset requisition and relevant regulations of law.

Article 11. Guarantees for business investment activities

1. Investors are not required by the State to satisfy the following requirements:

a) Give priority to purchase or use of domestic goods/services; or only purchase or use goods/services provided by domestic producers/service providers;

b) Achieve a certain export target; restrict the quantity, value, types of goods/services that are exported or domestically produced/provided;

c) Import a quantity/value of goods that is equivalent to the quantity/value of goods exported; or balance foreign currencies earned from export to meet import demands;

d) Reach a certain rate of import substitution;

dd) Reach a certain level/value of domestic research and development;

e) Provide goods/service at a particular location in Vietnam or overseas;

g) Have the headquarters situated at a location requested by a competent authority.

2. Depending on the socio-economic conditions and demands for investment attraction in each period, the Prime Minister shall decide to apply forms of guarantee of the State to execute investment projects subject to approval for their investment guidelines by the National Assembly, the Prime Minister, and other important investment projects on infrastructural development.

The Government shall elaborate this Clause.

Article 12. Guarantees for transfer of foreign investors’ assets overseas

After all financial obligations to Vietnamese government are fulfilled, foreign investors are permitted to transfer the following assets overseas:

1. Investment capital and proceeds from liquidation of its investment;

2. Their income obtained from business investment activities;

3. Money and other assets under the lawful ownership of the investors.

Article 13. Guarantees for business investment upon changes of laws

1. Where a new law provides more favorable investment incentives, investors are entitled to enjoy the new incentives for the remaining period of the incentive enjoyment of the project, except for special investment incentives for the investment projects in the case specified in Point a Clause 5 Article 20 of this Law.

2. Where a new law that provides less favorable investment incentives than those previously enjoyed by investor is promulgated, investors shall keep enjoying the current incentives for the remaining period of the incentive enjoyment of the project.

3. The regulations in Clause 2 of this Article do not apply if regulations of a legal document are changed for reasons of national defense and security, social order and security, social ethics, public health, or environmental protection.

4. Where an investor is no longer eligible for investment incentives prescribed in Clause 3 of this Article, one or more of the following solutions shall be adopted:

a) Deduct the damage actually suffered by the investor from the investor's taxable income;

b) Adjust the objectives of the investment project;

c) Assist the investor in remedying damage.

5. With regard to the investment guarantee measure in Clause 4 of this Article, the investor shall make a written request within 03 years from the effective date of the new legal document.

Article 14. Settlement of disputes over business investment activities

1. Disputes over business investment activities in Vietnam shall be settled through negotiation and conciliation. If the negotiation or conciliation fails, the dispute shall be settled by an arbitration body or by a court in accordance with Clauses 2, 3, and 4 of this Article.

2. Every dispute between a Vietnamese investor and a foreign-invested business organization, or between a domestic investor or a foreign-invested business organization and a regulatory agency over business investment activities within Vietnam’s territory shall be settled by a Vietnam's arbitration body or Vietnam’s court, except for the cases in Clause 3 of this Article.

3. Every dispute between investors, one of which is a foreign investor or a business organization defined in Points a, b and c Clause 1 Article 23 of this Law, shall be settled by one of the following agencies/organizations:

a) Vietnam’s court;

b) Vietnam’s arbitration body;

c) Foreign arbitration body;

d) International arbitration body;

dd) An arbitral tribunal established by the parties in dispute.

4. Every dispute between a foreign investor and a regulatory agency over business investment activities within Vietnam’s territory shall be settled by Vietnam’s arbitral tribunal or Vietnam’s court, unless otherwise agreed under a contract or prescribed by an international treaty to which the Socialist Republic of Vietnam is a signatory.

Chapter III

INVESTMENT INCENTIVES AND ASSISTANCE

Article 15. Forms and objects for application of investment incentives

1. Forms of investment incentives:

a) Corporate income tax incentives, including application of a lower rate of corporate income tax for a certain period of time or throughout the investment project execution; exemption from and reduction of tax and other incentives prescribed by the Law on Corporate Income Tax.

b) Exemption from import tax on goods imported to form fixed assets; raw materials, supplies and components for manufacturing purposes in accordance with regulations of law on import and export tax;

c) Exemption from and reduction of land levy and land rents;

d) Accelerated depreciation, increasing the deductible expenses upon calculation of taxable income.

2. Entities eligible for investment incentives:

a) Investment projects in business lines eligible for investment incentives specified in Clause 1 Article 16 of this Law;

b) Investment projects located in the areas eligible for investment incentives specified in Clause 2 Article 16 of this Law;

c) Any investment project whose capital is at least VND 6,000 billion of which at least VND 6,000 billion is disbursed within 03 years from the issuance date of the investment registration certificate or the approval for investment guidelines and which satisfies any of the following criteria: the total revenue is at least VND 10,000 billion per year within 03 years from the year in which the revenue is earned or the project has more than 3,000 employees;

d) Projects on investment in social housing construction; investment projects located in rural areas and employing at least 500 employees; investment projects that employ persons with disabilities in accordance with regulations of law on persons with disabilities.

dd) Hi-tech enterprises, science and technology enterprises and science and technology organizations; projects involving transfer of technologies on the List of technologies the transfer of which is encouraged in accordance with regulations of the Law on Technology Transfer, science and technology enterprise incubators prescribed by the Law on High Technologies and Law on Science and Technology; enterprises manufacturing and providing technologies, equipment, products and services with a view to satisfaction of environment protection requirements prescribed by the Law on Environment Protection;

e) Start-up projects, national innovation centers and research and development centers;

g) Investment in business in small and medium-sized enterprises’ product distribution chain; investment in business in technical establishments supporting small and medium-sized enterprises, small and medium-sized enterprise incubators; investment in business in co-working spaces serving small and medium-sized enterprises and startups prescribed by the Law on Small and Medium-Sized Enterprises.

3. Investment incentives shall be given to new investment projects and expansion projects.

4. The level of each type of incentives shall be specified by regulations of the Law on Taxation, the Law on Accounting and the Law on Land.

5. The investment incentives applied to the objects mentioned in Points b, c and d Clause 2 of this Article do not apply to:

a) Projects on investment in mineral mining;

b) Projects on investment in manufacturing/sale of goods/services subject to special excise tax according to the Law on Special Excise Tax, except for projects on manufacturing of automobiles, aircrafts and yachts.

c) Projects on investment in commercial housing construction prescribed by the Law on Housing.

6. Investment incentives applied for a fixed term and on the basis of results of project execution. Every investor must satisfy conditions for investment incentives in accordance with regulations of law during the period of enjoying investment incentives.

7. An investment project that is eligible for various levels of investment incentive, including investment incentive specified in Article 20 of this Law may apply the highest level.

8. The Government shall elaborate this Article.

Article 16. Business lines and areas eligible for investment incentives

1. Business lines eligible for investment incentives:

a) Hi-tech activities, hi-tech supporting industry products, research, manufacturing and development of products formed from science and technology results in accordance with regulations of law on science and technology;

b) Manufacturing of new materials, new energy, clean energy, renewable energy; manufacturing of products with an added value of 30% or more; energy-saving products;

c) Manufacturing of key electronics, mechanical products, agricultural machinery, automobiles, automobile parts; shipbuilding;

d) Manufacturing of products on the List of prioritized supporting industry products;

dd) Manufacturing of IT products, software products, digital contents;

e) Breeding, growing and processing of agriculture products, forestry products, aquaculture products; afforestation and forest protection; salt production; fishing and fishing logistics services; production of plant varieties, animal breeds and biotechnology products;

g) Collection, treatment, recycling or re-use of waste;

h) Investment in development, operation, management of infrastructural works; development of public transportation in urban areas;

i) Pre-school education, general education, vocational education, higher education;

k) Medical examination and treatment; manufacturing of medicinal products and medicinal materials, storage of medicinal products; scientific research into preparation technology and biotechnology serving creation of new medicinal products; manufacturing of medical equipment;

l) Investment in sports facilities for the disabled or professional athletes; protection and promotion of value of cultural heritage;

m) Investment in geriatric centers, mental health centers, treatment for agent orange patients; care centers for the elderly, the disabled, orphans, street children;

n) People's credit funds, microfinance institutions;

o) Manufacturing of goods and provision of services that create or participate in value chains and industry linkage clusters.

2. Areas eligible for investment incentives:

a) Disadvantaged areas and extremely disadvantaged areas;

b) Industrial parks, export-processing zones, hi-tech zones and economic zones.

3. According to the business lines and areas eligible for investment incentives mentioned in Clause 1 and Clause 2 of this Article, the Government shall compile and amend the List of business lines eligible for investment incentives and the List of areas eligible for investment incentives; determine business lines eligible for special investment incentives to be included in the List of business lines eligible for investment incentives.

Article 17. Procedures for applying investment incentives

Based on the objects specified in Clause 2 Article 15 of this Law, the written approval for investment guidelines (if any), the investment registration certificate (if any) and other relevant regulations of law, investors shall determine investment incentives themselves and follow procedures for enjoying investment incentives at the tax authority, finance authority, customs authority or other competent authority corresponding to each type of investment incentive.

Article 18. Forms of investment assistance

1. Forms of investment assistance:

a) Assistance in development of technical infrastructure and social infrastructure inside and outside the perimeter of the investment project;

b) Assistance in training and development of human resources;

c) Credit assistance;

d) Assistance in access to business premises; assistance in relocation of business establishments under decisions of regulatory agencies;

dd) Assistance in science, technology and technology transfer;

e) Assistance in market development and information provision;

g) Assistance in research and development.

2. The Government shall, according to the orientation for socio-economic development and the ability to balance the state budget in each period, specify the forms of investment assistance in Clause 1 of this Article which is provided for hi-tech enterprises, science and technology enterprises, science and technology organizations, enterprises investing in agriculture and rural areas, enterprises investing in education, dissemination of laws and other entities.

Article 19. Assistance in development of infrastructure of industrial parks, export-processing zones, hi-tech zones and economic zones

1. Pursuant to the planning decided or approved in accordance with regulations of the Law on Planning, Ministries, ministerial agencies and provincial People’s Committees shall formulate plans for investment and development and organize construction of technical infrastructure and social infrastructure beyond industrial parks, export-processing zones, hi-tech zones and dedicated areas of economic zones.

2. The State shall provide assistance for part of the capital investment in development from the state budget and concessional loan capital in order to synchronously develop the technical infrastructure and social infrastructure inside and outside the perimeter of industrial parks in disadvantaged areas or extremely disadvantaged areas.

3 . The State shall provide assistance for part of the capital investment in development from the state budget, concessional loan capital, and employ other capital raising methods to develop the technical infrastructure and social infrastructure in economic zones and hi-tech zones.

Article 20. Special investment incentives and assistance

1. The Government shall decide to apply special investment incentives and assistance with a view to encouraging the development of some investment projects that exert significant socio-economic effects.

2. Objects eligible for special investment incentives and assistance specified in Clause 1 of this Article include:

a) Projects on investment in establishment (including the expansion of such establishment project) of innovation centers and research and development centers with a total investment capital of at least VND 3,000 billion and disbursing at least VND 1,000 billion within 03 years from the issuance date of the investment registration certificate or the approval for investment guidelines; the National Innovation Center established under the Prime Minister's decision;

b) Investment projects in the business line eligible for special investment incentives with an investment capital of at least VND 30,000 billion and disbursing at least VND 10,000 billion within 03 years from the issuance date of the investment registration certificate or the approval for investment guidelines.

3. Level and duration of application of special investment incentives are prescribed by the Law on Corporate Income Tax and the Law on Land.

4. Forms of special investment assistance are the same as those mentioned in Clause 1 Article 18 of this Law.

5. Special investment incentives and assistance set out in this Article do not apply to:

a) any investment project that has been granted the investment certificate, the investment registration certificate or the decision on investment guidelines before the effective date of this Law;

b) the investment projects mentioned in Clause 5 Article 15 of this Law.

6. The Government shall request the National Assembly to decide to apply investment incentives other than those specified in this Law and other laws if it is necessary to encourage the development of a project of special importance or a special administrative - economic unit.

7. The Government shall elaborate this Article.

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.

Chapter V

OUTWARD INVESTMENT ACTIVITIES

Section 1. GENERAL PROVISIONS

Article 51. Rules for carrying out outward investment activities

1. The State encourages outward investment in order to exploit, develop and expand the market; improve the export of goods and services, earn foreign currencies; access modern technologies, raise the managerial capability and develop resources for socio-economic development.

2. Investors carrying out outward investment activities shall comply with this Law, other relevant regulations of law, laws of the countries or territories that receive investment (hereinafter referred to as “host countries”) and relevant international treaties, and themselves take responsibility for the efficiency in outward investment activities.

Article 52. Forms of outward investment

1. Investors shall carry out outward investment activities in the following forms:

a) Establishment of a business organization in accordance with the law of the host country;

b) Making investment on the basis of an overseas contract;

c) Contribution of capital to, purchase of shares or stakes of an overseas business organization to participate in management of such business organization;

d) Trading in securities, other financial instruments, or making investment via securities investment funds and other intermediary financial institutions in a foreign country;

dd) Other forms of investment prescribed by law of the host country.

2. The Government shall elaborate the forms of investment mentioned in Point d Clause 1 of this Article.

Article 53. Business lines banned from outward investment

1. Business lines specified in Article 6 of this Law and relevant international treaties.

2. Business lines with technologies and products banned from export in accordance with the law on foreign trade management.

3. Business lines banned from business investment in accordance with regulations of laws of the host countries.

Article 54. Business lines subject to conditional outward investment

1. Business lines subject to conditional outward investment include:

a) Banking;

b) Insurance;

c) Securities;

d) Press, radio and television;

dd) Real estate business.

2. The conditions for making outward investment in the business lines mentioned in Clause 1 of this Article are specified in the Laws and Resolutions of the National Assembly, Ordinances and Resolutions of the Standing Committee of the National Assembly, Decrees of the Government and international investment-related treaties to which the Socialist Republic of Vietnam is a signatory.

Article 55. Sources of capital for outward investment

1. Investors shall contribute capital and raise capital to carry out outward investment activities.

2. Borrowing foreign currency loans and transferring foreign currency investment capital must comply with the conditions and procedures prescribed in the laws on banking, credit institutions and foreign exchange management.

3. According to objectives of monetary policies and foreign currency management policies in each period, the State Bank of Vietnam shall promulgate regulations on grant of foreign currency loans by credit institutions and branches of foreign banks in Vietnam to investors as prescribed in Clause 2 of this Article to carry out outward investment activities.

Section 2. PROCEDURES FOR GRANTING APPROVAL FOR OUTWARD INVESTMENT GUIDELINES AND MAKING OUTWARD INVESTMENT DECISIONS

Article 56. The power to approve outward investment guidelines

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

a) Investment projects with outward investment capital of VND 20,000 billion or more;

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

2. Except for the investment projects mentioned in Clause 1 of this Article, the Prime Minister shall grant approval for outward investment guidelines of the following investment projects:

a) Investment projects in the banking, insurance, securities, press, radio, television and telecommunications fields with outward investment capital of VND 400 billion or more;

b) Investment projects other than those mentioned in Point a of this Clause with outward investment capital of VND 800 billion or more.

3. Investment projects not mentioned in Clauses 1 and 2 of this article are not subject outward investment guideline approval.

Article 57. Dossiers and procedures for outward investment guideline approval by the National Assembly

1. The investor shall submit an outward investment project dossier to the Ministry of Planning and Investment. The dossier consists of:

a) An outward investment registration form;

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

c) A proposal for the investment project containing at least: form, objectives, scale, and investment location; preliminary determination of investment capital, capital raising plan and structure of capital sources; project execution schedule, investment phases (if any); preliminary analysis of the efficiency of the project;

d) 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 of the investor; a parent company’s commitment to provide financial support; a financial institution’s commitment to provide financial support; guarantee for the investor’s financial capacity; other document proving the investor’s financial capacity;

dd) A commitment to themself balance sources of foreign currency or a commitment of an authorized credit institution to provide foreign currency for the investor;

e) A document issued by the ownership representative agency which approves the investor to carry out outward investment activities, and report on internal appraisal of the outward investment proposal of the state-owned enterprise as prescribed in Clause 1 Article 59 of this Law or decision on outward investment as prescribed in Clause 2 Article 59 of this Law;

g) With regard to an outward investment project in the business lines specified in Clause 1 Article 54 of this Law, the investor shall submit a written certification of the investor’s fulfillment of conditions for outward investment issued by a competent authority in accordance with the relevant regulations of law (if any).

2. Within 05 working days from the date on which the sufficient dossier is received, the Ministry of Planning and Investment shall submit it to the Prime Minister for establishment of a State Appraisal Council.

3. Within 90 days from the date of its establishment, the State Appraisal Council shall organize appraisal and prepare an appraisal report for submission to the Government. An appraisal report shall contain:

a) Conditions for issuance of an outward investment registration certificate prescribed in Article 60 of this Law;

b) Legal status of the investor;

c) Necessity of conducting outward investment activities;

d) Conformity of the investment project with Clause 1 Article 51 of this Law;

dd) Form, scale, location and execution schedule of the investment project, outward investment capital and sources of capital;

e) Assessment of level of risks in the host country.

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

5. An application for outward investment guideline approval includes:

a) The Government’s application form;

b) The dossier 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 outward 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 conducting outward investment activities;

c) Conformity of the investment project with Clause 1 Article 51 of this Law;

d) Form, scale, location and execution schedule of the investment project, outward investment capital and sources of capital;

dd) Assessment of level of risks in the host country;

e) 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 the outward investment guideline approval containing the following contents:

a) The investor executing the project;

b) Investment objectives and location;

c) Outward investment capital, and sources of such capital;

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

9. The Government shall elaborate on the conditions and procedures for appraisal of outward investment project dossiers by the State Appraisal Council.

Article 58. Dossiers and procedures for outward investment guideline approval by the Prime Minister

1. Investment project dossiers shall be prepared as prescribed in Clause 1 Article 57 of this Law.

2. The investor shall submit an outward investment project dossier to the Ministry of Planning and Investment. Within 03 working days from the date on which the sufficient dossier is received, the Ministry of Planning and Investment shall send relevant documents to relevant regulatory agencies to seek their opinions.

3. Within 15 days from receipt of the written request for opinions, the requested agencies shall give their written opinions about the contents under their management.

4. Within 30 days from the date on which the application is received, the Ministry of Planning and Investment shall organize appraisal and prepare an appraisal report for submission to the Prime Minister. The appraisal report includes the contents specified in Clause 3 Article 57 of this Law.

5. The Prime Minister shall consider granting outward investment guideline approval comprising the contents set out in Clause 8 Article 57 of this Law.

Article 59. Outward investment decision

1. A decision on outward investment by a state-owned enterprise shall be made in accordance with the law on management and use of state capital invested in manufacturing and business activities of enterprises and other relevant regulations of law.

2. Outward investment activities not mentioned in Clause 1 of this Article shall be decided by investors in accordance with the Law on Enterprises.

3. Investors and authorities making decisions on the outward investment as prescribed in Clauses 1 and 2 of this Article shall take responsibility for their decisions on outward investment.

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

Article 60. Conditions for issuance of outward investment registration certificate

1. Outward investment activities shall adhere to the rules prescribed in Article 51 of this Law.

2. Outward investment activities do not involve any business line banned from outward investment as prescribed in Article 53 of this Law and conditions for outward investment applicable to business lines subject to conditional outward investment as prescribed in Article 54 of this Law are satisfied.

3. The investor makes a commitment to prepare foreign currencies themself or obtains a commitment to prepare foreign currencies from an authorized credit institution for the purposes of conducting outward investment activities.

4. There is an outward investment decision as prescribed in Article 59 of this Law.

5. There is a tax authority’s certification of the fulfillment of tax obligation by the investor. Such certification must be issued by the tax authority within the last 03 months.

Article 61. Procedures for issuance of outward investment registration certificate

1. If the investment project is subject to approval for its outward investment guidelines, the Ministry of Planning and Investment shall issue the outward investment registration certificate to the investor within 05 working days from receipt of the written approval for investment guidelines and the outward investment decision prescribed in Article 59 of this Law.

2. Regarding the investment project not mentioned in Clause 1 of this article, the investor shall submit an application for issuance of an outward investment registration certificate to the Ministry of Planning and Investment. The application consists of:

a) An outward investment registration form;

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

c) The outward investment decision prescribed in Article 59 of this Law;

d) A commitment to balance foreign currency sources or a commitment of an authorized credit institution to provide foreign currencies for the investor prescribed in Clause 3 Article 60 of this Law;

dd) With regard to an outward investment project in the business lines specified in Clause 1 Article 54 of this Law, the investor shall submit a certification of the investor’s fulfillment of conditions for outward investment issued by a competent authority in accordance with the relevant regulations of law (if any).

3. In case the amount of foreign currency capital transferred abroad is VND 20 billion or more, the Ministry of Planning and Investment shall request the State Bank of Vietnam to provide opinions in writing.

4. Within 15 days from receipt of the application prescribed in Clause 2 of this Article, the Ministry of Planning and Investment shall issue an outward investment registration certificate; in case of rejection of the application, a written explanation shall be provided to the investor.

5. The Government shall elaborate procedures for appraising outward investment projects; issue, adjust and invalidate outward investment registration certificates.

Article 62. Contents of outward investment registration certificate

1. Investment project code.

2. The investor.

3. Name of the investment project and name of the foreign business organization (if any).

4. Investment objectives and location.

5. Investment form, investment capital and sources of such capital, investment capital form, outward investment schedule.

6. Rights and obligations of the investor.

7. Investment incentives and assistance (if any).

Article 63. Adjustment of outward investment registration certificate

1. An investor shall follow procedures for adjusting the outward investment registration certificate in the following cases:

a) Change of the Vietnamese investor;

b) Change of the investment form;

c) Change of outward investment capital; sources of investment capital and form of such capital;

d) Change of investment location with respect to the investment project requiring an investment location;

dd) Change of main objective of the outward investment activity;

e) Use of profit derived from outward investment according to Points a and b Clause 1 Article 67 of this Law.

2. The investor must update changes other than those prescribed in Clause 1 of this Article on the National Investment Information System.

3. An application for adjustment of the outward investment registration certificate includes:

a) An application form for adjustment of the outward investment registration certificate;

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

c) A report on operation of the investment project up to the date of submission of the application for adjustment of the outward investment registration certificate;

d) A decision on adjustment to the outward investment activity pursuant to Article 59 of this Law or the documents prescribed in Point e Clause 1 Article 57 of this Law;

dd) A copy of the outward investment registration certificate;

e) The tax authority’s certification of the investor’s fulfillment of the tax payment obligation in case of increasing the outward investment capital.  Such certification must be issued by the tax authority within the last 03 months.

4. The Ministry of Planning and Investment shall adjust the outward investment registration certificate within 15 days from receipt of the application specified in Clause 3 of this Article.

5. If the investment project is subject to approval for its outward investment guidelines, the Ministry of Planning and Investment shall follow procedures for approving the adjustment to the outward investment guidelines before adjusting the outward investment registration certificate as prescribed in Clause 1 of this Article and Clause 8 Article 57 of this Law.

6. If the adjustment to the outward investment registration certificate results in the investment project being subject to approval for its outward investment guidelines, the investor has to apply for approval for outward investment guidelines before adjusting the outward investment registration certificate.

7. The agency or person that has the power to approve outward investment guidelines also has the power to approve the adjustment to outward investment guidelines. The agency or person that has the power to make the outward investment decision also has power to make a decision on adjustment to contents of the outward investment decision.

8. 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 outward investment guidelines.

Article 64. Invalidation of outward investment registration certificate

1. The outward investment registration certificate shall be invalidated in the following cases:

a) The investor decides to terminate the investment project;

b) The investment project duration is over in accordance with regulations of law of the host country;

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

d) The investor transfers all outward investment capital to a foreign investor;

dd) The investor fails to execute or is unable to execute the investment project in line with the schedule registered with the regulatory agency within 24 months from the date of issuance of the outward investment registration certificate and fails to follow the procedures for adjusting the execution schedule of the investment project;

e) The foreign business organization is dissolved or goes bankrupt in accordance with the law of the host country;

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

2. The investor shall follow the procedures for termination of the outward investment project in accordance with the law of the host country and the procedures for invalidation of the outward investment registration certificate.

3. The Ministry of Planning and Investment shall invalidate outward investment registration certificates.

Section 4. CONDUCT OF OUTWARD INVESTMENT ACTIVITIES

Article 65. Opening of outward investment capital accounts

1. Investors shall open an outward investment capital account at an authorized credit institution in Vietnam in accordance with regulations of law on foreign exchange management.

2. Transfer of money from and to Vietnam pertaining to outward investment activities must be made via the investment capital account specified in Clause 1 of this Article in accordance with regulations of law on foreign exchange management.

Article 66. Transfer of investment capital overseas

1. An investor is allowed to transfer investment capital overseas in order to conduct investment activities if the following conditions are met:

a) The outward investment registration certificate has been granted, except for the case prescribed in Clause 3 of this Article;

b) The investment activities have been approved or licensed by a competent authority of the host country. If the host country’s law does not cover investment licensing or approval, the investor must provide documents proving their right to carry out investment activities in that country;

c) There is a capital account as prescribed in Article 65 of this Law.

2. The transfer of investment capital overseas must comply with regulations of law on foreign exchange management, export and technology transfer and relevant regulations of law.

3. Investors are entitled to transfer foreign currencies, goods, machinery and equipment overseas to serve market survey, research and market exploration and to carry out investment preparatory activities as prescribed by the Government.

Article 67. Use of profit overseas

1. The investor is entitled to retain profit derived from outward investment for reinvestment in the following cases:

a) Continuing to contribute outward investment capital if capital has not yet been fully contributed as registered;

b) Increasing outward investment capital;

c) Executing a new investment project overseas.

2. Investors shall follow the procedures for adjusting the outward investment registration certificate as prescribed in Article 63 of this Law in the cases specified in Points a and b Clause 1 of this Article; and follow the procedures for issuance of the outward investment registration certificate as prescribed in Article 61 of this Law in the case specified in Point c Clause 1 of this Article.

Article 68. Repatriation of profit

1. Within 06 months from the date on which the tax declaration or an equivalent document is available as prescribed by the host country’s law, the investor shall repatriate the entire profit and other incomes derived from outward investment unless the profit is retained as prescribed in Article 67 of this Law.

2. If the profit and other incomes are not repatriated within the time limit prescribed in Clause 1 of this Article, the investor shall send a written notification to the Ministry of Planning and Investment and the State Bank of Vietnam. The time limit for repatriation of profit may be extended by no more than 12 months from the expiry of the time limit specified in Clause 1 of this Article.

3. If the investor, within the time limit specified in Clause 1 of this Article, has failed to repatriate profit or send the notification or if the investor, within the extended time limit specified in Clause 2 of this Article, has failed to repatriate profit, such investor shall incur penalties in accordance with regulations of law.

Chapter VI

STATE MANAGEMENT OF INVESTMENT

Article 69. Responsibility for state management of investment

1. The Government shall perform uniform state management of investment in Vietnam and outward investment.

2. The Ministry of Planning and Investment shall assist the Government in performing uniform state management of investment in Vietnam and outward investment, and has the following tasks and rights:

a) Request the Government and the Prime Minister to consider approving strategies, plans and policies for investment in Vietnam and outward investment;

b) Promulgate or request competent authorities to promulgate legislative documents on investment in Vietnam and outward investment;

c) Promulgate forms of documents serving procedures for investment in Vietnam and outward investment;

d) Provide instructions, disseminate, organize, supervise, inspect and assess the implementation of legislative documents on investment;

dd) Formulate and submit to competent authorities mechanisms for resolving difficulties facing investors and for preventing disputes between the State and investors;

e) Assess and report developments of investment in Vietnam and outward investment;

g) Build, manage and operate the National Investment Information System and national investment database;

h) Issue, adjust and invalidate outward investment registration certificates;

i) Perform state management of industrial parks, export-processing zones and economic zones;

k) Perform state management of investment promotion and coordinate investment promotion activities in Vietnam and overseas;

l) Inspect, supervise and assess investment activities, manage and cooperate in managing investment activities within its power;

m) Negotiate and conclude international investment-related treaties within its power;

n) Perform other tasks and exercise other rights regarding state management of investment as assigned by the Government and the Prime Minister.

3. Ministries, ministerial agencies shall, within their jurisdiction, cooperate with the Ministry of Planning and Investment in performing the task of state management of investment in Vietnam and outward investment. To be specific:

a) Cooperate with the Ministry of Planning and Investment, Ministries and ministerial agencies in formulating laws and policies on investment;

b) Preside over and cooperate with other Ministries and ministerial agencies in formulating laws, policies, standards, technical regulations and instructions;

c) Request the Government to promulgate conditions for making business investment in the business lines mentioned in Article 7 of this Law;

d) Preside over and cooperate with the Ministry of Planning and Investment in formulating planning and plans, and compiling a list of its projects attracting investment; organize campaigns and specialized investment promotion;

dd) Participate in appraisal of projects subject to approval for their investment guidelines as prescribed in this Law and take responsibility for the contents of the appraisal within their jurisdiction;

e) Carry out supervision, assessment, and specialized inspection of the fulfillment of investment conditions and state management of investment projects within their power;

g) Preside over and cooperate with People’s Committees of provinces, other Ministries and ministerial agencies in resolving difficulties of investment projects in state management; provide guidance on distribution of powers and authorize management boards of industrial parks, export-processing zones, hi-tech zones, and economic zones to perform state management tasks therein;

h) Carry out periodic assessment of socio - economic effects of investment projects under their management and send reports thereon to the Ministry of Planning and Investment;

i) Provide relevant information to establish a national investment database; maintain and update management information systems under their management and integrate them into the National Investment Information System.

4. Provincial People’s Committees and investment registration authorities shall, within their jurisdiction, perform the task of state management of investment in Vietnam and outward investment. To be specific:

a) Cooperate with Ministries and ministerial agencies in compiling and issuing Lists of local projects attracting investment;

b) Preside over or participate in appraisal of projects subject to approval for their investment guidelines as prescribed in this Law and take responsibility for the contents of the appraisal within their jurisdiction; preside over following procedures for issuance, adjustment and revocation of investment registration certificates;

c) Exercise the function of state management of investment projects within their provinces;

d) Resolve or request competent authorities to resolve difficulties faced by investors;

dd) Carry out periodic assessments of efficiency of investment activities and submit reports thereon to the Ministry of Planning and Investment;

e) Provide relevant information to establish a national investment database; maintain and update the National Investment Information System;

g) Provide instructions on organization, supervision and assessment of implementation of investment reporting regulations.

5. Vietnam’s overseas representative missions shall monitor and support investment activities, and protect the lawful rights and interests of Vietnamese investors in the host countries.

Article 70. Supervision and assessment of investment

1. Supervision and assessment of investment activities include:

a) Supervision and assessment of investment projects;

b) Overall investment supervision and assessment.

2. Responsibility for investment supervision and assessment:

a) Investment authorities and specialized authorities conduct overall investment supervision and assessment and supervision and assessment of investment projects under their management;

b) Investment registration authorities shall supervise and assess the investment projects to which they grant investment registration certificates;

3. Contents of supervision and assessment of investment projects:

a) With regard to investment projects funded by state capital, investment authorities and specialized authorities shall carry out supervision and assessment according to the contents and criteria approved in the investment decision;

b) With respect to investment projects funded by other sources of capital, investment authorities and specialized authorities shall supervise and assess the objectives and conformity of the investment projects with planning and investment guidelines approved by competent authorities, the investment schedule, fulfillment of environmental protection requirements, technologies, use of land and other resources as prescribed by law;

c) Investment registration authorities shall assess the adherence to investment registration certificates and written approval for investment guidelines.

4. Contents of overall supervision and assessment of investment:

a) Promulgation of legislative documents elaborating and providing guidelines for implementation thereof; implementation of the law on investment;

b) Progress of execution of investment projects;

c) Assessment of results of investment implementation by the whole country, Ministries, ministerial agencies, local authorities, and investment projects under their management;

d) Suggest investment assessment results and solutions for resolving difficulties and actions against violations of the law on investment to regulatory agencies at the same level and superior investment authorities.

5. Organizations and agencies shall carry out investment assessment themselves or hire capable experts or consultancies to do so.

6. The Government shall elaborate this Article.

Article 71. National Investment Information System

1. The National Investment Information System consists of:

a) National information system for domestic investment;

b) National information system for foreign investment in Vietnam;

c) National information system for outward investment from Vietnam;

d) National information system for investment promotion;

dd) National information system for industrial parks and economic zones.

2. The Ministry of Planning and Investment shall preside over and cooperate with relevant agencies in developing and operating the National Investment Information System; establish the national investment database; assess the operation of such system by central and local investment authorities.

3. Investment authorities and investors shall sufficiently, promptly and accurately update information on the National Investment Information System.

4. Information about investment projects in the National Investment Information System is considered original and lawful information.

Article 72. Reports on investment activities in Vietnam

1. Reporting entities:

a) Ministries, ministerial agencies and provincial People’s Committees;

b) Investment registration authorities;

c) Investors and business organizations executing investment projects as prescribed in this Law.

2. Periodic reporting:

a) Investors and business organizations executing investment projects shall submit quarterly and annual reports to investment registration authorities and local statistical agencies on the investment project execution, which specify: investment capital, investment results, employees, payment to government budget, investment in R&D, environmental protection, and other professional indicators;

b) Investment shall submit quarterly and annual reports to the Ministry of Planning and Investment and provincial People’s Committees on receipt of applications, issuance, adjustment and revocation of investment registration certificates and the operation of investment projects under their management;

c) Provincial People’s Committees shall submit quarterly and annual consolidated reports on local investment to the Ministry of Planning and Investment;

d) Ministries and ministerial agencies shall submit quarterly and annual reports on issuance, adjustment and revocation of investment registration certificates and equivalent papers (if any) under their management; and on investment activities under their management to the Ministry of Planning and Investment, which submit a consolidated report to the Prime Minister;

dd) The Ministry of Planning and Investment shall submit an annual report to the Prime Minister on investment nationwide and adherence to regulations on investment reporting by the entities mentioned in Clause 1 of this Article.

3. Agencies, investors and business organizations shall make reports in writing via the National Investment Information System.

4. Agencies, investors and business organizations mentioned in Clause 1 of this Article shall make ad hoc reports at the request of competent authorities.

5. If a project is exempt from the investment registration certificate, the investor shall submit a report to the investment registration authority before commencement of the project execution.

Article 73. Reporting of outward investment activities

1. Reporting entities:

a) Ministries and ministerial agencies shall manage outward investment activities in accordance with regulations of law, and agencies representing the state capital in enterprises;

b) Investors executing outward investment projects as prescribed in this Law.

2. Regulations on reporting applied to the entities specified in Point a Clause 1 of this Article:

a) Such entities shall submit an annual report on management of outward investment within their jurisdiction to the Ministry of Planning and Investment, which will submit consolidated reports to the Prime Minister;

b) The Ministry of Planning and Investment shall submit an annual report on outward investment to the Prime Minister.

3. Reporting regulations applied to investors:

a) Within 60 days from the day on which the project is approved or licensed as prescribed by law of the host country, the investor shall send a written notification of outward investment enclosed with a copy of the written approval for the investment project or a document proving the right to make investment in the host country to the Ministry of Planning and Investment, the State Bank of Vietnam, and a representative mission of Vietnam in the host country;

b) Investors shall submit quarterly and annual reports on operation of their investment projects to the Ministry of Planning and Investment, the State Bank of Vietnam, and a representative mission of Vietnam in the host country;

c) Within 06 months from the day on which the tax declaration or an equivalent document is available as prescribed by the host country’s law, the investor shall submit a report on the operation of the investment project enclosed with the financial statement, tax declaration, or an equivalent document prescribed by the host country’s law to the Ministry of Planning and Investment, the State Bank of Vietnam, the Ministry of Finance, a representative mission of Vietnam in the host country, and a competent authority prescribed in this Law and relevant regulations of law;

d) If the outward investment project is funded by the state capital, apart from complying with the regulations in Points a, b and c of this Clause, the investor shall make reports in accordance with regulations of law on management and use of state capital invested in manufacturing and business activities of enterprises.

4. The reports mentioned in Clause 2 and Clause 3 of this Article shall be made in writing and via the National Investment Information System.

5. The agencies and investors in Clause 1 of this Article shall make ad hoc reports at the request of competent authorities to meet state management requirements or settle issues arising in relation to investment projects.

Article 74. Investment promotion activities

1. The Government shall direct the formulation and organize the implementation of policies and orientations for investment promotion with a view to promoting and facilitating investment activities by sectors and regions and partners in conformity with strategies, planning, plans and objectives for socio-economic development in each period; and ensure implementation of inter-regional and cross-sectoral investment promotion programs and activities in association with trade promotion and tourism promotion.

2. The Ministry of Planning and Investment shall formulate and organize the implementation of a national investment promotion plan or program; coordinate inter-regional and inter-provincial investment promotion activities; monitor, supervise and assesses the efficiency of investment promotion nationwide.

3. Ministries, ministerial agencies and provincial People's Committees shall, within their jurisdiction, formulate and organize implementation of investment promotion plans and programs in fields and areas under their management in conformity with strategies, planning and plans for socio-economic development and the national investment promotion program.

4. Funding for formulating and organizing the implementation of the investment promotion program shall be covered by the state budget and other lawful sources.

5. The Government shall elaborate this Article.

Chapter VII

IMPLEMENTATION CLAUSE

Article 75. Amendments to some Articles of laws related to business investment

1. The Law on Housing No. 65/2014/QH13 amended by the Law No. 40/2019/QH14 is amended as follows:

a) Clause 2 of Article 21 is amended as follows:

“2. Having a capital deposit or a bank guarantee to execute each project in accordance with the law on investment.”;

b) Point c Clause 2 of Article 22 is amended as follows:

“c) Approving an investor in accordance with the Law on Investment. If multiple investors are approved, the investor shall be determined in accordance with the Law on Construction.

The Government shall elaborate this Point.”;

c) Clause 1 of Article 23 is amended as follows:

“1. Having the lawful right to use residential land and the other types of land which is allowed by a competent authority to be repurposed as residential land.”;

d) Clause 2 of Article 170 is amended as follows:

“2. Regarding other housing construction projects subject to approval for their investment guidelines in accordance with the Law on Investment, regulations of the Law on Investment shall be complied with.”;

dd) Clause 7 of Article 175 is amended as follows:

“7. Provide professional training in residential housing development and management; stipulate the issuance of certificates of training in management and operation of apartment buildings; stipulate and recognize the classification of apartment buildings.”;

e) Clause 3 Article 22 and Article 171 are repealed.

2. The Law on Real Estate Business No. 66/2014/QH13 is amended as follows:

a) Clause 1 of Article 10 is amended as follows:

“1. Any organization or individual engaged in real estate business must establish an enterprise or cooperative (hereinafter referred to as “the enterprise”), except for the cases mentioned in Clause 2 of this Article.”;

b) Article 50 is amended as follows:

“Article 50. The power to allow transfer of real estate projects in part or in full

1. In the case of a real estate project for which the investor has been approved or to which an investment registration certificate has been issued in accordance with the Law on Investment, power and procedures for transfer of real estate projects in part or in full shall comply with the Law on Investment.

2. For a real estate project other than that mentioned in Clause 1 of this Article, the power to allow transfer of real estate projects in part or in full is as follows:

a) People's Committees of provinces and central-affiliated cities (hereinafter referred to as “provincial People's Committees”) shall decide to allow transfer part or whole of real estate projects subject to investment decision by provincial People's Committees;

b) The Prime Minister shall decide to allow transfer of real estate projects in part or in full, for projects subject to investment decision by the Prime Minister.”;

c) The following introductory paragraph is added before Clause 1 of Article 51:

“Procedures for transfer part or whole of real estate projects specified in Clause 2 Article 50 of this Law are as follows:”.

3. Some Points of Clause 2 Article 25 of the Law on Environmental Protection No. 55/2014/QH13 amended by the Law No. 40/2019/QH14 and the Law No. 39/2019/QH14 are amended as follows:

a) Point a Clause 2 of Article 25 is amended as follows:

“a) Regarding the entities prescribed in Article 18 of this Law, the competent authority shall depend on the preliminary environmental impact assessment to grant approval for investment guidelines; and the investor is only allowed to execute the project after the environmental impact assessment report has been approved.

Regarding the public investment project, the competent authority shall depend on the preliminary environmental impact assessment to decide policy guidelines; and depend on the environmental impact assessment to make investment decisions for the projects prescribed in Article 18 of this Law. The Government shall elaborate subjects and contents of preliminary environmental impact assessment;”;

b) Point d Clause 2 of Article 25 is amended as follows:

“dd) With respect to the projects not mentioned in Points a, b, c and d of this Clause, the competent authority shall depend on the preliminary environmental impact assessment to issue the investment registration certificate, except for the case in which the investment registration certificate is issued at the request of the investor; and the investor is only allowed to execute the project after the environmental impact assessment report has been approved.”.

4. The Law on Corporate Income Tax No. 14/2008/QH12 amended by the Law No. 32/2013/QH13 and the Law No. 71/2014/QH13 is amended as follows:

a) Clause 5a is added after Clause 5 of Article 13 as follows:

 “5a. With respect to the investment projects specified in Clause 2 Article 20 of the Law on Investment, the Prime Minister shall decide to apply a preferential tax rate reducing by no more than 50% the preferential tax rate specified in Clause 1 of this Article. The duration of application of the preferential tax rate shall not exceed 1.5 times the duration of application of the preferential tax rate specified in Clause 1 and may be extended for no more than 15 years and must not exceed the duration of the investment project.”;

b) Clause 1a is added after Clause 1 of Article 14 as follows:

 “1a. With respect to the investment projects specified in Clause 2 Article 20 of the Law on Investment, the Prime Minister shall decide to apply tax exemption for no more than 6 years and reduce 50% of the maximum tax payable for no more than the 13 subsequent years.”;

5. The Law on the Law on Cinematography No. 62/2006/QH11 amended by the Law No. 31/2009/QH12 and the Law No. 35/2018/QH14 is amended as follows:

a) Article 14, Article 15 and Clause 3 of Article 30 are repealed;

b) The number “14” and the mark “,” immediately after the number “14” in Article 55 are deleted.

6. Article 10 and Point a Clause 2 Article 43 of the Law on Urban Planning No. 30/2009/QH12 amended by the Law No. 77/2015/QH13, the Law No. 35/2018/QH14 and the Law No. 40/2019/QH14 are repealed.

Article 76. Implementation clause

1. This Law comes into force from January 01, 2021, except for the regulations in Clause 2 of this Article.

2. The regulations set out in Clause 3 Article 75 of this Law come into force from September 01, 2020.

3. The Law on Investment No. 67/2014/QH14 amended by the Law No. 90/2015/QH13, the Law No. 03/2016/QH14, the Law No. 04/2017/QH14, the Law No. 28/2018/QH14 and the Law No. 42/2019/QH14 shall cease to have effect from the effective date of this Law, except for Article 75 of the Law on Investment No. 67/2014/QH14.

4. Individuals who are Vietnamese citizens may use their personal identification numbers instead of copies of their identity cards/citizen identity cards, passports or other personal identification documents upon following administrative procedures set out in the Law on Investment and Law on Enterprises if the national population database is connected to the national investment and enterprise registration database.

5. Any legislative document that refers to regulations on project approval decisions or investment guideline decisions in accordance with the Law on Investment shall be implemented in accordance with the regulations on investment guideline approval of this Law.

Article 77. Grandfather clauses

1. Investors that were issued with investment licenses, investment incentive certificates, investment certificates or investment registration certificates before the effective date of this Law shall execute their investment projects in accordance with such investment licenses, investment incentive certificates, investment certificates or investment registration certificates.

2. Investors are not required to follow procedures for approval for investment guidelines in accordance with this Law with respect to the investment projects in one of the following cases:

a) The investors obtained investment guideline decisions, investment guideline approval or investment approval in accordance with regulations of laws on investment, housing, urban areas and construction before the effective date of this Law;

b) The investors have started execution of projects that are not subject to approval for their investment guidelines, investment guideline decision or investment guideline or issuance of the investment registration certificate in accordance with regulations of laws on investment, housing, urban areas and construction before the effective date of this Law;

c) Investors won the bidding for investor selection or the land use right auction before the effective date of this Law;

d) Projects have been granted investment incentive certificates, investment licenses, investment certificates or investment registration certificates before the effective date of this Law.

3. If an investment project specified in Clause 2 of this Article is adjusted and the adjustments are subject to approval for investment guidelines in accordance with this Law, the procedures mentioned in this Law must be followed to obtain approval for investment guidelines or adjust investment guidelines.

4. Any investment project executed or approved or allowed to be executed in accordance with regulations of law before July 01, 2015 and subject to project execution security as prescribed in this Law is not required to have a deposit or a bank guarantee. If the investor adjusts the objectives or schedule for execution of the investment project or repurposes land after the effective date of this Law, the investor must pay a deposit or obtain a bank guarantee in accordance with this Law.

5. Any debt collection service contract concluded before the effective date of this Law shall cease to have effect from the effective date of this Law; and the parties to such contract may carry out activities to liquidate the contract in accordance with the civil law and other relevant regulations of law.

6. Foreign-invested business organizations to which market access conditions more favorable than those prescribed in the List promulgated under Article 9 of this Law are applied may continue to apply the conditions set out in their issued investment registration certificate.

7. The regulation in Clause 3 Article 44 of this Law applies to both investment projects to which land was allocated before the effective date of this Law and projects to which land has not yet been allocated.

8. In the event that the law stipulates that documentation serving administrative procedures must consist of an investment registration certificate or written approval for investment guidelines but the investment project is not subject to issuance of an investment registration certificate or written approval for investment guidelines as prescribed in this Law, the investor is not required to submit an investment registration certificate or written approval for investment guidelines.

9. With respect to areas which have difficulties in providing land for development of residential housing, service facilities and public utilities for employees working in industrial parks, the competent authority may adjust the planning for construction of industrial zones (for industrial parks established before July 01, 2014) to reserve part of the land area for development of residential housing, service facilities and public utilities for employees working in the industrial parks.

After adjustment of the planning, the land area for development of residential housing, service facilities and public utilities for employees working in an industrial park must be outside the geographical boundary of the industrial park and must ensure an environmental safety distance in accordance with the law on construction and other relevant regulations of law.

10. Grandfather clauses on outward investment activities:

a) Regulations on the duration of outward investment projects set out in outward investment licenses and outward investment certificates issued before July 01, 2015 shall cease to have effect;

b) Any investor issued with an outward investment license or certificate or outward investment registration certificate to make outward investment in a conditional business line subject to conditional outward investment in accordance with this Law may continue to make investment according to the issued outward investment license or certificate or outward investment registration certificate.

11. From the effective date of this Law, if any document has been received and the deadline for processing thereof has expired but the results have not been returned in accordance with the Law No. 67/2014/QH14 on Investment amended by the Law No.  90/2015/QH13, the Law No. 03/2016/QH14, the Law No. 04/2017/QH14, the Law No. 28/2018/QH14 and the Law 42/2019/QH14, such document shall continue to be processed in accordance with regulations of law 67/2014/QH14 on Investment amended by the Law No. 90/2015/QH13, the Law No. 03/2016/QH14, the Law No. 04/2017/QH14, the Law No. 28/2018/QH14 and the Law No. 42/2019/QH14.

12. The Government shall elaborate this Article.

This Law is adopted by the 14th National Assembly of Socialist Republic of Vietnam on this 17th of June 2020 during its 9th session.

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