Chương 2 Luật Đầu tư nước ngoài tại Việt Nam 1996: Hình thức đầu tư

Chapter II

FORMS OF INVESTMENT

Article 4.- Foreign investors may invest in Vietnam in the following forms:

1. Business cooperation under a business cooperation contract;

2. Joint venture enterprises;

3. Enterprises with 100% foreign invested capital.

Article 5.- Two or more parties may enter into business cooperation under a business cooperation contract such as profit-sharing or product-sharing production cooperation and other business cooperation forms.

The objects, contents and duration of business, the interests, obligations and responsibilities of each party and the relationships between the parties shall be agreed upon by the parties and written in the business cooperation contract.

Article 6.- Two or more parties may cooperate to establish in Vietnam a joint venture enterprise under a joint venture contract.

A joint venture enterprise may cooperate with a foreign investor or a Vietnamese enterprise to establish a new joint venture in Vietnam.

A joint venture enterprise shall be established in the form of a limited liability company with the legal person status as prescribed by Vietnamese law.

Article 7.-

1. The foreign party to a joint venture enterprise may make its contributions to the prescribed capital in:

a/ Foreign currency and/or Vietnamese currency originating from the investment in Vietnam;

b/ Equipment, machinery, workshops or other constructions;

c/ The value of the industrial property right, technical know-how, technological processes, technical services.

2. The Vietnamese party to a joint venture enterprise may make its contribution to the prescribed capital in:

a/ Vietnamese currency and/or foreign currency;

b/ The value of the land-use right in accordance with the land legislation;

c/ The national resources, the value of the right to use water or sea surface as prescribed by law;

d/ Equipment, machinery, workshops or other constructions;

e/ The value of the industrial property right, technical secrets, technological processes, technical services.

3. The capital contribution by the parties in forms other than those defined in Item 1 and Item 2 of this Article must be approved by the Government.

Article 8.- The capital contributed by the foreign party(ies) to the prescribed capital of a joint venture enterprise shall not be limited as to its maximum as mutually agreed upon by the parties but must be not less than 30% of the prescribed capital, except for cases stipulated by the Government.

With regard to a multi-party joint venture enterprise, the minimum capital contribution by each Vietnamese party shall be stipulated by the Government.

With regard to an important economic establishment as decided by the Government, the parties shall agree to gradually increase the proportion of the Vietnamese party's contribution to the prescribed capital of the joint venture enterprise.

Article 9.- The value of the capital contributed by each party to a joint venture enterprise shall be determined according to market price at the moment the capital contribution is made. The capital contribution schedule shall be, as agreed upon by the parties, written in the joint venture contract and approved by an agency performing State management over foreign investment.

The value of equipment and machinery used for capital contribution must be certified by an independent evaluation body.

The parties involved shall be accountable for the authenticity and accuracy of their capital contribution value. In case of necessity, the agency performing the State management over foreign investment shall be entitled to nominate an evaluation body to reinspect the capital contribution values of the parties.

Article 10.- The parties shall share the profits and bear the risks associated with the joint venture enterprise in proportion to their respective capital contributions, unless otherwise agreed upon by the parties in the joint venture contract.

Article 11.- The Board of Management shall be the leading body of a joint venture enterprise consisting of representatives of the parties to the joint venture enterprise.

Each party shall appoint its representatives to the Board of Management in proportion to its contribution to the prescribed capital of the joint venture enterprise.

With regard to a two-party joint venture each shall party have at least two members on the Board of Management.

With regard to a multi-party joint venture, each party shall have at least one member on the Board of Management.

If a joint venture enterprise involves one Vietnamese party and more than one foreign party or one foreign party and more than one Vietnamese party, such Vietnamese or foreign party shall be entitled to appoint at least 2 members to the Board of Management.

In the Board of Management of a joint venture enterprise established between a joint venture enterprise operating in Vietnam and a foreign investor or a Vietnamese enterprise, the operating joint venture enterprise shall have at least two members, at least one of whom shall be from the Vietnamese party.

Article 12.- The Chairman of the Board of Management of a joint venture enterprise shall be appointed by common agreement between the involved parties. The Chairman of the Board of Management shall be responsible for convening and presiding over the meetings of the Board of Management and supervising the implementation of its resolutions.

The General Director and Deputy General Directors shall be appointed and dismissed by the Board of Management and take responsibility before the Board of Management and before Vietnam's law for the management and direction of the enterprise's activities.

Either the General Director or the first Deputy General Director shall be a Vietnamese citizen.

The tasks and powers of the Chairman of the Board of Management, the General Director and Deputy General Directors shall be written in the enterprise’s Statute.

Article 13.- The regular meetings of the Board of Management shall be decided by itself. The Board of Management may convene extraordinary meetings at the proposal of the Chairman of the Board of Management or two-thirds of its members or the General Director or the first Deputy General Director. The meetings of the Board of Management shall be convened by its Chairman.

A meeting of the Board of Management must be attended by at least two thirds of its members representing the parties to the joint venture.

Article 14.-

1. All the most important issues concerning the organization and operation of a joint venture enterprise including the appointment and dismissal of the General Director, the first Deputy General Director and the Chief Accountant; the amendment and supplement to the enterprise's Statute; the approval of the annual financial statements of revenues and expenditures and spending accounts of the constructions; the borrowing of investment capital shall be decided by the Board of Management on the principle of consensus among the Board’s members present at the meeting.

The parties to a joint venture enterprise may agree in its Statute that other issues should be decided on the principle of consensus.

2. For issues not defined in Item 1 of this Article, the Board of Management shall decide on the principle of majority vote by the Board's members present at the meeting.

Article 15.- The foreign investors may establish in Vietnam enterprises with 100% foreign invested capital.

An enterprise with 100% foreign invested capital shall be established in the form of a limited liability company with the legal person status in accordance with Vietnamese law.

An enterprise with 100% foreign invested capital may cooperate with a Vietnamese enterprise to establish a joint venture enterprise.

With regard to important economic enterprises as decided by the Government, Vietnamese enterprises may, on the basis of agreement with the owners of such enterprises, purchase part of their capital to form a joint venture enterprise.

Article 16.- The prescribed capital of an enterprise with foreign invested capital must be equal to at least 30% of its invested capital. In special cases, this percentage may be less than 30% but it must be approved by an agency performing State management over foreign investment.

During the course of its operation, an enterprise with foreign invested capital must not reduce its prescribed capital.

Article 17.- The operational duration of an enterprise with foreign invested capital and the term of a business cooperation contract shall be written in the Investment License for each project as stipulated by the Government but shall not exceed 50 years.

Basing itself on the provisions of the Standing Committee of the National Assembly, the Government shall decide a longer duration for each project but the maximum duration shall not exceed 70 years.

Article 18.- Foreign investors may invest in Industrial Zones and Export Processing Zones in the forms prescribed in Article 4 of this Law.

Vietnamese enterprises of all economic sectors may cooperate with foreign investors to invest in Industrial Zones and Export Processing Zones in the forms defined in Point 1, Point 2, Article 4 of this Law or may establish enterprises with 100% of capital owned by themselves.

The relations of goods exchange between the enterprises in Vietnamese market and the export processing enterprises shall be regarded as export-import relations and must comply with import-export legislation. The export processing enterprises may purchase materials, supplies and goods from the local market and bring them into the Export Processing Zone according to simple and convenient procedures stipulated by the Government.

The Government shall issue specific regulations on the Industrial Zones and Export Processing Zones.

Article 19.- A foreign investor who is to invest in constructing an infrastructure project(s) may sign with a competent State agency of Vietnam a Build-Operate-Transfer contract, a Build-Transfer-Operate contract or a Build-Transfer contract. The foreign investor shall be entitled to enjoy the benefits and perform the obligations defined in the contract.

The Government shall detail the investment under Build-Operate-Transfer, Build-Transfer-Operate and Build-Transfer contracts.