Chương IV Nghị định 118/2015/NĐ-CP: Thực hiện hoạt động đầu tư

Chapter IV

MAKING INVESTMENT

Section 1. GENERAL REGULATIONS ON EXECUTION OF INVESTMENT PROJECTS

Article 21. Responsibility to publish and provide information about investment projects

1. Investment registration authorities, planning, resources, and environment authorities, and other regulatory bodies shall make publicly available the planning and list of investment projects in accordance with law.

2. Where an investor requests information about the planning or list of investment project and other information related to investment projects, the authorities mentioned in Clause 1 of this Article shall provide information within their competence for such investor within 05 working days from the receipt of the investor’s request.

3. Investors are entitled to use information mentioned in Clause 1 and Clause 2 of this Article to compile their investment applications.

Article 22. Procedures for execution of investment projects

1. Depending on the characteristics, scale, and conditions of each project, it shall be executed under one of some procedures below:

a) Obtain a decision on investment guidelines, Investment Registration Certificate in accordance with the Law on Investment and this Decree;

b) Establish a business organization according to Article 44 of this Decree (for foreign investors making investment by establishing business organizations);

c) Follow procedures for land allocation, land lease/sublease, land repurposing in accordance with regulations of law on land (if any);

d) Follow construction procedures in accordance with regulations of law on construction (if any).

2. The investor that is the successful bidder for the land use right or for an investment project using land shall execute the investment project in accordance with the decision on approval for bidding result or decision on approval of investor selection result and regulations of law on investment, construction, and relevant regulations of law without having to obtain a decision on investment guidelines.

Article 23. Following investment procedures on National Foreign Investment Information System

1. Before following procedures for issuance or adjustment of the Investment Registration Certificate, the investor shall provide information about the investment project on National Foreign Investment Information System. Within 15 days from the day on which information is provided, the investor shall submit an application for issuance or adjustment of the Investment Registration Certificate to the investment registration authority.

2. After the application is received by the investment registration authority, the investor shall be given an account to access National Foreign Investment Information System to monitor the application processing.

3. The investment registration authority shall use National Foreign Investment Information System to receive, process applications, and return results, update the processing, and issue project codes.

4. In case National Foreign Investment Information System is inaccessible, investment registration authority shall issue the Investment Registration Certificate under backup procedures below:

a) The investment registration authority shall receive the physical application and request the Ministry of Planning and Investment to issue a code to the investment project. Within 02 days from the day on which the request is received, the Ministry of Planning and Investment shall issue the project code and notify the investment registration authority;

b) Within 05 days from the day on which the Investment Registration Certificate is issued under the backup procedures, the investment registration authority shall update information about the project on National Foreign Investment Information System.

Article 24. Mechanism for cooperating in resolving procedures for investment and enterprise registration for foreign investors

1. Apart from procedures for issuance of the Investment Registration Certificate and enterprise registration specified in the Law on Investment, this Decree, and regulations of law on enterprises, foreign investors may follow these procedures at a single unit in the following order:

a) The investor shall the application for investment registration and application for enterprise registration to the investment registration authority;

b) Within 01 working days from the day on the applications are received, the investment registration authority shall send the application for enterprise registration to the business registration authority;

c) Within 02 working days from the day on the application for enterprise registration is received, the business registration authority shall assess its validity and send a notification to the investment registration authority;

d) If the application for investment registration or application for enterprise registration needs adjusting or supplementing, the investment registration authority shall send a single notification to the investor within 05 working days from the day on which the applications are received;

dd) Accordin8g to the application for investment conditions and application for enterprise registration received, the investment registration authority and business registration authority shall cooperate in processing them and return the result to the investor at the investment registration authority.

2. The Ministry of Planning and Investment shall provide guidance on following the procedures specified in Clause 1 of this Article and other procedures that require cooperation between the investment registration authority and business registration authority.

Article 25. Procedures for obtaining opinions about investment projects required to have decisions on investment guidelines

1. During the process of assessing a project before issuing a decision on investment guidelines, the Ministry of Planning and Investment and the investment registration authority shall consult with other competent authorities about the content of the projects under their management. 2. A competent authority shall not reconsider the issues appraised and approved previously by other competent authorities.

3. If the project is intended to be executed against the planning approved by a competent authority, the investment registration authority shall consult with the planning authority in order to request a decision on investment guidelines.

4. With regard to projects of foreign investors that use land in islands, bordering communes, or coastal communes which are subject to decision on investment guidelines for the People’s Committee of the provinces, the investment registration authority shall consult with relevant authorities in accordance with regulations of law on land while following procedures for obtaining the decision on investment guidelines, except for investment projects in industrial parks, export-processing zones, hi-tech zones, economic zones that are conformable with planning approved by competent authority.

Article 26. Procedures for execution of investment projects

1. During the process of execution of an investment project, the investor shall comply with regulations of law on investment, construction, land, environmental protection, employment, and relevant regulations of law.

2. With regard to an investment project executed under the Investment Registration Certificate or decision on investment guidelines, the investor shall execute it in accordance with the Investment Registration Certificate or decision on investment guidelines and relevant regulations of law.

3. The investor shall report investment activities in accordance with the Law on Investment, this Decree, and relevant regulations of law; provide documents and information related to investment inspection and supervision for competent authorities as prescribed by law.

Article 27. Performance security

1. The investor must pay a deposit when receiving land, leasing land, or permitted to repurpose land by the State to execute the investment project, except for the following cases:

a) The investor is the successful bidder for land use right to execute the investment project and receives levied land from the State or leases land from the State and pay a lump sum rent for the entire lease term;

b) The investor is a successful bidder for an investment project using land according to regulations of law on bidding;

c) The investor receives land or lease land from the State on the basis of transfer of an investment project has paid the deposit of completely contributed capital and/or raised capital according to the schedule specified in the Investment Registration Certificate or decision on investment guidelines;

d) The investor receives land or leases land from the State to execute an investment project on the basis of receipt of land use right or property on land of another land user;

dd) The investor is a revenue-earning public service agency, a hi-tech zone development company established under a decision of a competent authority to execute investment projects that receive land or lease land from the State to develop infrastructure of industrial parks, export-processing zones, hi-tech zones, specialized areas in economic zones.

2. The deposit mentioned in Clause 1 of this Article shall be paid under a written agreement between the investment registration authority and the investor after a decision on investment guidelines is issued and before the time of land transfer, land lease, or land repurposing. If the investment project is not required to have a decision on investment guidelines, the time for paying the deposit is the time of land transfer, land lease, or land repurposing.

3. The deposit is a progressive percentage of the project capital written on the decision on investment guidelines or Investment Registration Certificate. To be specific:

a) If the capital does not exceed VND 300 billion, the deposit is 3%;

b) The deposit on the amount of capital in surplus of VND 300 billion but not exceeding VND 1,000 billion is 2%;

c) The deposit on the amount of capital in surplus of VND 1,000 billion is 1%.

4. Capital of the project mentioned in Clause 3 of this Article does not include land levy or land rent payable to the State and the cost of construction of public works of the project. If the project receives land or leases land from the State in stages, the deposit shall depend on the capital of the project in each stage.

5. The deposit shall be paid to the account of the investment registration authority a Vietnamese commercial bank selected by the investor. The investor shall incur the cost of opening, maintaining the deposit account, and making transactions related to the deposit account.

6. The investor shall receive a deposit reduction in the following cases:

a) 25% reduction of deposit for investment projects in business lines eligible for investment incentives; investment projects in disadvantaged areas, investment projects in industrial parks and export-processing zones, including projects for construction and operation of infrastructure in industrial parks and export-processing zones;

b) 50% reduction of deposit for investment projects in business lines eligible for special investment incentives; investment projects in extremely disadvantaged areas, investment projects in business lines eligible for investment incentives located in disadvantaged areas; investment projects in hi-tech zones and economic zones, including projects for construction and operation of infrastructure in hi-tech zones and economic zones;

7. The investor that has advanced the payment for land clearance and relocation may delay paying the amount of deposit equal to the advance payment for land clearance and relocation.

8. The investor shall receive refund of the deposit as follows:

a) 50% of the deposit shall be returned when the investor completes procedures for land transfer, land lease, or land repurposing and obtain other licenses/approvals to commence the construction (if any) according to the schedule on the Investment Registration Certificate or decision on investment guidelines;

b) The remaining deposit and interest on which (if any) shall be returned when the investor accepts the construction and installation for the project to be inaugurated according to the schedule on the Investment Registration Certificate or decision on investment guidelines;

c) Where the project capital is decreased, the investor shall receive a refund of an amount of deposit which is equal to the decrease in capital according to the adjusted Investment Registration Certificate or adjusted decision on investment guidelines;

d) Where the execution of an investment project cannot be continued because of a force majeure event or on account of a competent authority while following administrative procedures, the investor may claim the refund of the deposit under an agreement of the investment registration authority.

9. The deposit shall be transferred to state budget except for the cases specified in Clause 8 of this Article.

10. Where adjustments to an investment project also change the deposit conditions, the investment registration authority and the investor shall reach an agreement on deposit adjustment in accordance with provisions of this Article.

Section 2. PROCEDURES FOR ISSUANCE OF DECISION ON INVESTMENT GUIDELINES, INVESTMENT REGISTRATION CERTIFICATE

Article 28. The power to receive applications, issue, adjust, and revoke Investment Registration Certificates

1. The Department of Planning and Investment of each province shall receive applications, issue, adjust, and revoke Investment Registration Certificates of:

a) Investment projects outside industrial parks, export-processing zones, hi-tech zones, and economic zones;

b) Projects of investment in development of infrastructure of industrial parks, export-processing zones, hi-tech zones, and investment projects in industrial parks, export-processing zones, and hi-tech zones in areas without management boards of industrial parks, export-processing zones, and hi-tech zones.

2. Management boards of industrial parks, export-processing zones, hi-tech zones, and economic zones shall receive applications, issue, adjust, revoke Investment Registration Certificates of investment projects therein, including:

a) Projects of investment in development of infrastructure of industrial parks, export-processing zones, and hi-tech zones;

b) Investment projects executed within industrial parks, export-processing zones, hi-tech zones, and economic zones.

3. The Department of Planning and Investment of the province in which the investor’s premises or offices are located or intended to be located shall receive applications, issue, adjust, revoke Investment Registration Certificates of:

a) Any investment project that is executed in more than one province;

b) Any investment project executed both inside and outside an industrial park, export-processing zone, hi-tech zone, or economic zone.

4. The authorities specified in Clause 1 through 3 of this Article have the power to adjust and revoke the Investment Licenses, Investment Incentive Certificates, Investment Certificates, and equivalent documents issued to investors before the effective date of the Law on Investment.

Article 29. Procedures for issuance of Investment Registration Certificate to investment project that is not required to have a decision on investment guidelines

1. The investor shall submit 01 application for investment registration specified in Clause 1 Article 33 to the investment registration authority.

2. If the investment project is being executed, the project proposal in the application mentioned in Clause 1 of this Article shall be replaced with a report on project execution for the period from the beginning of the project execution to the submission of the application for the Investment Registration Certificate.

3. The investment registration authority shall issue the Investment Registration Certificate within 15 days from the receipt of the valid application as set out in Clause 1 of this Article if the conditions below are satisfied:

a) The project does not involve the business lines banned from investment;

b) The project satisfied conditions applied to foreign investors specified in Clause 1 Article 10 of this Decree (if any).

Article 30. Procedures for issuance of Investment Registration Certificates to investment projects whose decisions on investment guidelines are issued by the People’s Committees of provinces

1. Investment projects whose decisions on investment guidelines are issued by the People’s Committees of provinces are specified in Article 32 of the Law on Investment.

2. The investor shall submit 04 sets of application for investment registration specified in Clause 1 Article 33 of the Law on Investment to the investment registration authority of the administrative division in which the project is intended to be located.

3. The investment registration authority shall consult with other competent authorities about the content of the project under their management, including:

a) Conformity of the project with overall planning for socio-economic development, sector development planning, and land-use planning;

b) Land use demand, conditions for land transfer, land lease, land repurposing (if the project receives or leases land from the State, or is permitted to repurpose land);

c) Investment conditions applied to foreign investors (if the project involves multiple business lines subject to conditions applied to foreign investors);

d) Investment incentives and conditions for receiving them (if the project is eligible for such investment incentives);

dd) Technologies used by the project (if the project uses technologies restricted from transfer according to regulations of law on technology transfers specified in Point b Clause 1 Article 32 of the Law on Investment).

4. Procedures and content of decisions on investment guidelines issued by the People’s Committees of provinces are specified in Clause 2 through 8 Article 33 of the Law on Investment.

5. Within 25 days from the receipt of the valid application as set out in Clause 2 of this Article, the investment registration authority shall make and submit a review report to the People’s Committee of the province. Within 07 working days the receipt of the review report, the People’s Committee of the province shall consider issuing the decision on investment guidelines.

6. Within 05 working days from the receipt of the decision on investment guidelines from the People’s Committee of the province, the investment registration authority shall issue the Investment Registration Certificate to the investor.

7. With regard to a project that receives land or leases land from the State without bidding, receives a land use right or property on land, or requires land repurposing specified in Point a Clause 1 Article 32 of the Law on Investment and is executed in an industrial park, export-processing zone, hi-tech zone, or economic zone in conformity with the planning approved by a competent authority, the investment registration authority shall consult with relevant authorities in order to issue the Investment Registration Certificate within 25 days from the day on which the valid application is received without having to request the People’s Committee of the province to issue a decision on investment guidelines.

Article 31. Procedures for issuance of Investment Registration Certificates to investment projects whose decisions on investment guidelines are issued by the Prime Minister

1. Investment projects whose decisions on investment guidelines are issued by the Prime Minister are specified in Article 31 of the Law on Investment.

2. The investor shall submit 08 sets of application for investment conditions specified in Clause 1 Article 34 of the Law on Investment to the investment registration authority of the administrative division in which the project is intended to be located.

3. Within 03 working days from the receipt of the valid application as set out in Clause 2 of this Article, the investment registration authority shall send 02 sets to the Ministry of Planning and Investment and one set to each competent authority related to the investment project to receive comments about the issues specified in Clause 3 Article 30 of this Article.

4. Within 15 days from the day on which the request of the investment registration authority is received, the authorities mentioned in Clause 3 of this Article shall send the Ministry of Planning and Investment their comments about the issues within their management.

5. Within 25 days from the receipt of the valid application as set out in Clause 2 of this Article, the investment registration authority shall request the People’s Committee of the province to consider and send comments about the following issues to the Ministry of Planning and Investment:

b) Land use demand, conditions for land transfer, land lease, land repurposing (if the project receives or leases land from the State, or is permitted to repurpose land);

b) Plan for land clearance, relocation (if any) if the project receives or leases land from the State, or is permitted to repurpose land;

c) Other issues within the competence of the People’s Committee of the province (if any).

6. Within 15 days from the receipt of the comments from the People’s Committee of the province, the Ministry of Planning and Investment shall make and submit a review report which contains the information specified in Clause 6 Article 33 of the Law on Investment to the Prime Minister for issuance of a decision on investment guidelines.

7. Within 07 working days the receipt of the review report, the Ministry of Planning and Investment and the Prime Minister shall issue a decision on investment guidelines which contain the information specified in Clause 8 Article 33 of the Law on Investment. The decision on investment guidelines shall be sent to the Ministry of Planning and Investment, the People’s Committee of the province, and the investment registration authority.

8. Within 05 working days from the receipt of the decision on investment guidelines, the investment registration authority shall issue the Investment Registration Certificate to the investor.

9. With regard to an investment project whose capital is VND 5,000 billion or over as specified in Clause 2 Article 31 of the Law on Investment and is conformable with planning approved by a competent authority, the investment registration authority shall consult with the Ministry of Planning and Investment and relevant authorities as set out in Clause 3 Article 30 of this Decree in order to issue the Investment Registration Certificate as follows:

a) With regard to an investment project specified in Clause 1 and Clause 3 Article 28 of this Decree, within 05 working days from the receipt of comments from the Ministry of Planning and Investment and relevant authorities, the investment registration authority shall make and submit a review report to the People’s Committee of the province for issuance of a decision on investment guidelines. Within 05 working days from the receipt of review report from the investment registration authority, the People’s Committee of the province shall issue the decision on investment guidelines. Within 05 working days from the receipt of the decision on investment guidelines from the People’s Committee of the province, the investment registration authority shall issue the Investment Registration Certificate to the investor;

b) With regard to an investment project specified in Clause 2 Article 28 of this Decree, within 05 working days from the receipt of comments from the Ministry of Planning and Investment and relevant authorities, the management board of the industrial park, export-processing zone, hi-tech zone, or economic zone shall issue the Investment Registration Certificate to the investor.

Article 32. Procedures for issuance of decisions on investment guidelines to investment projects that are not required to have Investment Registration Certificate

1. The issuance of decisions on investment guidelines to projects that are not required to have Investment Registration Certificates is specified in Article 30 and Article 31 of this Decree.

2. With regard to a project that receives land or leases land form the State without bidding, receives a land use right or property on land, or requires land repurposing specified in Point a Clause 1 Article 32 of the Law on Investment and is executed in an industrial park, export-processing zone, hi-tech zone, or economic zone in conformity with the planning approved by a competent authority, the management board of the industrial park, export-processing zone, hi-tech zone, or economic zone shall request comments as set out in Clause 3 Article 30 of this Decree to issue a decision on investment guidelines.

3. With regard to an investment project whose capital is VND 5,000 billion or over as specified in Clause 2 Article 31 of the Law on Investment and is conformable with planning approved by a competent authority, the investment registration authority shall consult with the Ministry of Planning and Investment and relevant authorities as set out in Clause 3 Article 30 of this Decree in order to issue the decision on investment guidelines as follows:

a) With regard to an investment project specified in Clause 1 and Clause 3 Article 28 of this Decree, within 05 working days from the receipt of comments from the Ministry of Planning and Investment and relevant authorities, the investment registration authority shall make and submit a review report to the People’s Committee of the province for issuance of a decision on investment guidelines. The People’s Committee of the province shall issue the decision on investment guidelines within 05 working days from the receipt of review report from the investment registration authority. The decision on investment guidelines shall be sent to the Ministry of Planning and Investment, the investment registration authority, and the investor;

b) With regard to an investment project specified in Clause 2 Article 28 of this Decree, within 05 working days from the receipt of comments from the Ministry of Planning and Investment and relevant authorities, the management board of the industrial park, export-processing zone, hi-tech zone, or economic zone shall consider issuing the decision on investment guidelines. The decision on investment guidelines shall be sent to the Ministry of Planning and Investment and the investor.

Section 3. PROCEDURES FOR ADJUSTING INVESTMENT REGISTRATION CERTIFICATE AND DECISION ON INVESTMENT GUIDELINES

Article 33. Procedures for adjusting Investment Registration Certificates of investment projects that are not required to have decisions on investment guidelines

1. In case of a change to the investment project’s name, investor’s address, or investor’s name, the investor shall submit an application for adjustments to the investment project to the investment registration authority together with documents about such changes. The investment registration authority shall adjust the Investment Registration Certificate within 03 working days from the day on which the application for adjustment is received.

2. In case of a change in the investment project’s location, land area, targets, scale, capital, capital contribution schedule or capital raising schedule, operating duration, execution schedule, investment incentives, investment assistance (if any) and conditions to be fulfilled by the investor, the investor shall submit an application to the investment registration authority, which consists of:

a) A written request for permission for project adjustments;

b) A report on the project’s progress up to the time of adjustment;

c) The investor’s decision on project adjustment (in case of changes specified in Clause 4, Clause 5, Clause 6, Clause 7, Clause 8, and Clause 10 Article 39 of the Law on Investment);

d) Explanation or documents related to the changes specified in Point b through g Clause 1 Article 33 of the Law on Investment (if any).

3. Within 10 working days from the receipt of the valid application as specified in Clause 2 of this Article, the investment registration authority shall adjust the Investment Registration Certificate.

4. Provisions of Article 37, Article 38, and Article 39 of this Decree shall apply to change of investors.

Article 34. Procedures for adjusting Investment Registration Certificates of investment projects whose decisions on investment guidelines are issued by the People’s Committees of provinces1. In case of a change in the investment project’s target, location, primary technology, increase or decrease in capital by over 10% that changes the project’s target, scale, and capacity; execution period, or conditions to be fulfilled by the investor (if any), the investor shall follow procedures for adjusting the Investment Registration Certificate as follows:

a) The investor shall submit 04 sets of application specified in Clause 2 Article 33 of this Decree to the investment registration authority;

b) Within 03 working days from the receipt of the valid application, the investment registration authority shall send the application to relevant authorities to receive comments about the adjustments;

c) Within 10 working days from the day on which the request of the investment registration authority is received, the authorities mentioned in Point b of this Clause shall make comments about the issues under their management;

d) Within 05 days from the receipt of the comments from the authorities mentioned in Point c of this Clause, the investment registration authority shall make and submit a review report to the People’s Committee of the province;

dd) Within 05 working days from the receipt of review report from the investment registration authority, the People’s Committee of the province shall issue the decision on adjustments to investment guidelines and send it to the investment registration authority;

e) According to the decision on adjustments to investment guidelines for the People’s Committee of the province, the investment registration authority shall adjust the Investment Registration Certificate within 03 working days from the day on which the decision is received.

2. The procedures specified in Article 33 of this Decree shall apply to the changes that are not specified in Clause 1 of this Article.

Article 35. Procedures for adjusting Investment Registration Certificates of investment projects whose decisions on investment guidelines are issued by the Prime Minister

1. In case of a change in the investment project’s target, location, primary technology, increase or decrease in capital by over 10% that changes the project’s target, scale, and capacity; execution period, or conditions to be fulfilled by the investor (if any), the investor shall follow procedures for adjusting the Investment Registration Certificate as follows:

a) The investor shall submit 08 sets of application specified in Clause 2 Article 33 of this Decree to the investment registration authority;

b) Within 03 working days from the receipt of the valid application as set out in Point a of this Clause, the investment registration authority shall send 02 sets of the application to the Ministry of Planning and Investment and one set to each relevant competent authority to receive comments about the issues specified in Clause 3 Article 30 of this Article;

c) Within 10 working days from the day on which the request of the investment registration authority is received, the authorities mentioned in Point b of this Clause shall make comments about the issues under their management;

d) Within 20 days from the receipt of the valid application as set out in Point a of this Clause, the investment registration authority shall request the People’s Committee of the province to consider and send comments about the issues specified in Clause 5 Article 31 of this Decree to the Ministry of Planning and Investment;

dd) Within 15 days from the receipt of the comments from the People’s Committee of the province as set out in Point d of this Clause, the Ministry of Planning and Investment shall make and submit a review report to the Prime Minister for issuance of a decision on adjustments to investment guidelines;

e) Within 07 working days the receipt of the review report, the Ministry of Planning and Investment and the Prime Minister shall consider issuing a decision on adjustments to investment guidelines. The decision on adjustments to investment guidelines shall be sent to the Ministry of Planning and Investment, the People’s Committee of the province, and the investment registration authority;

g) Within 05 working days from the receipt of the decision on adjustments to investment guidelines, the investment registration authority shall adjust the Investment Registration Certificate.

2. The procedures specified in of Article 33 of this Decree shall apply to the changes that are not specified in Clause 1 of this Article.

Article 36. Procedures for adjusting decisions on investment guidelines for investment projects that are not required to have Investment Registration Certificates

1. With regard to an investment project which is required to have a decision on investment guidelines and not required to have an Investment Registration Certificate, its investor shall follow procedures for adjusting the decision on investment guidelines in the following cases:

a) The project’s target, location, primary technology is changed;

b) An increase or decrease in total capital by over 10% changes the project’s target, scale, and capacity;

c) The project’s execution period or conditions to be fulfilled by the investor are changed (if any).

2. The procedures specified in Article 34 and Article 35 of this Decree shall apply to issuance of the decision on adjustments to investment guidelines.

3. With regard to an investment project specified in Clause 2 Article 32 of this Decree, the management board of the industrial park, export-processing zone, hi-tech zone, or economic zone shall collect comments about the adjustments in accordance with Clause 3 Article 30 of this Decree. Within 05 working days from the receipt of comments, the management board of the industrial park, export-processing zone, hi-tech zone, or economic zone shall issue a decision on adjustments to investment guidelines.

4. With regard to an investment project specified in Clause 3 Article 32 of this Decree, the investment registration authority shall request the Ministry of Planning and Investment and relevant authorities to make comments as set out in Clause 3 Article 30 of this Decree in order to issue a decision on adjustments to investment guidelines as follows:

a) With regard to an investment project specified in Point a Clause 3 Article 32 of this Decree, within 05 working days from the receipt of comments from the Ministry of Planning and Investment and relevant authorities, the investment registration authority shall make and submit a review report to the People’s Committee of the province for issuance of a decision on adjustments to investment guidelines. The People’s Committee of the province shall issue the decision on adjustments to investment guidelines within 05 working days from the receipt of review report from the investment registration authority. The decision on adjustments to investment guidelines shall be sent to the Ministry of Planning and Investment, the investment registration authority, and the investor;

b) With regard to an investment project specified in Point b Clause 3 Article 32 of this Decree, within 05 working days from the receipt of comments from the Ministry of Planning and Investment and relevant authorities, the management board of the industrial park, export-processing zone, hi-tech zone, or economic zone shall consider issuing the decision on adjustments to investment guidelines. The decision on adjustments to investment guidelines shall be sent to the Ministry of Planning and Investment and the investor.

Article 37. Procedures for changing investors in case of investment project transfer

1. An investor (the transferor) may transfer part of or the whole investment project to another investor (the transferee) in accordance with the conditions specified in Clause 1 Article 45 of the Law on Investment. If the project transfer generates income, the transferor shall fulfill his/her tax liability as prescribed by law.

2. Procedures for changing the investor of a project operating under an Investment Registration Certificate which is not required to have a decision on investment guidelines:

a) The transferor shall submit a set of application to the investment registration authority, which consists of: a written request for permission for project adjustments, a report on the project’s progress up to the time of transfer; the project transfer contract or another document with equivalent legal value; copies of the ID card or passport (if the investor is an individual) or Certificate of Enterprise Registration or another document with equivalent legal value (if the investor is an organization); copies of the Investment Registration Certificate or decision on investment guidelines (if any); copies of the BCC contract (for BCC projects); copies of one of the following documents of the transferee: financial statements of the last 02 years; commitment to provide financial support by the parent company, commitment to provide financial support by a financial institution, the guarantee of transferee’s financial capacity, documents describing the transferee’s financial capacity;

b) the investment registration authority shall consider the fulfillment of conditions for project transfer specified in Clause 1 Article 45 of the Law on Investment to adjust the Investment Registration Certificate within 10 working days from the day on which the valid application specified in Point a of this Clause is received.

3. Procedures for changing the investor of a project operating under an Investment Registration Certificate whose decision on investment guidelines is issued by the People’s Committee of the province:

a) The investor shall submit 04 sets of application specified in Point 2 Clause 2 of this Article to the investment registration authority;

b) Within 03 working days from the receipt of the valid application as set out in Point a of this Clause, the investment registration authority shall send 02 it to competent authorities to receive comments about the conditions for project transfer specified in Clause 1 Article 45 of the Law on Investment;

c) Within 10 working days from the day on which the request of the investment registration authority is received, the authorities mentioned in Point b of this Clause shall make comments about the issues under their management;

d) Within 20 days from the receipt of the valid application, the investment registration authority shall make a report on fulfillment of conditions for project transfer according to Clause 1 Article 45 of the Law on Investment and submit it to the People’s Committee of the province;

dd) Within 05 working days from the receipt of the report from the investment registration authority, the People’s Committee of the province shall consider issuing a decision on adjustments to investment guidelines;

e) Within 03 working days from the receipt of the decision on adjustments to investment guidelines, the investment registration authority shall adjust the Investment Registration Certificate of the transferee.

4. Procedures for changing the investor of a project operating under an Investment Registration Certificate whose decision on investment guidelines is issued by the Prime Minister:

a) The investor shall submit 08 sets of application specified in Point 2 Clause 2 of this Article to the investment registration authority;

b) Within 03 working days from the receipt of the valid application as set out in Point a of this Clause, the investment registration authority shall send 02 it to competent authorities to receive comments about the conditions for project transfer specified in Clause 1 Article 45 of the Law on Investment;

c) Within 10 working days from the day on which the request of the investment registration authority is received, the authorities mentioned in Point b of this Clause shall make comments about the issues under their management;

d) Within 25 days from the receipt of the valid application as set out in Point a of this Clause, the investment registration authority shall request the People’s Committee of the province to consider and send comments about the issues specified in Point c and Point d Clause 1 Article 45 of the Law on Investment (if any) to the Ministry of Planning and Investment.

dd) Within 10 working days from the receipt of comments from the People’s Committee of the province, the Ministry of Planning and Investment shall make a report on fulfillment of conditions for project transfer as set out in Clause 1 Article 45 of the Law on Investment;

e) Within 07 working days the receipt of the report, the Ministry of Planning and Investment and the Prime Minister shall consider issuing a decision on adjustments to investment guidelines. The decision on adjustments to investment guidelines shall be sent to the Ministry of Planning and Investment, the People’s Committee of the province, and the investment registration authority;

g) Within 05 working days from the receipt of the decision on adjustments to investment guidelines, the investment registration authority shall adjust the Investment Registration Certificate of the transferee.

5. The procedures specified in Clause 3 and Clause 4 of this Article shall apply to the change of the investor of a project that is required to have a decision on investment guidelines and not required to have an Investment Registration Certificate.

6. With regard to a project having a decision on investment guidelines issued by the management board of an industrial park, export-processing zone, hi-tech zone, or economic zone (hereinafter referred to as management board), the management board shall decide the adjustments to investment guidelines when the conditions specified in Clause 1 Article 45 of the Law on Investment are fulfilled.

7. With regard to a project having a decision on investment guidelines, if the investor in which has finished contributing and/or raising capital, and the project has been put into operation, it is not required to follow the procedures for adjusting investment guidelines specified in Clause 3 through 6 of this Article. Where project is executed under an Investment Registration Certificate, the investor shall follow procedures for adjusting the Investment Registration Certificate as set out in Clause 2 of this Article.

8. Where a foreign investor receives a project and establish a business organization to execute it, such foreign investor shall follow procedures for issuing or adjusting the Investment Registration Certificate, then follow procedures for establishing a business organization in accordance with regulations of law on establishment of the corresponding type of business organization.

Article 38. Procedures for adjusting a project in case of corporate division, acquisition, consolidation, or conversion

1. A business organization established on the basis of a corporate division, acquisition, consolidation, or conversion shall inherit the investor’s rights and obligations to the investment project before restructuring.

2. The investor shall decide the restructuring and settle the assets, rights and obligations to the project in accordance with regulations of law on enterprises and relevant regulations of law.

3. After the procedures mentioned in Clause 2 of this Article are completed, the investor shall submit an application for project adjustments to the investment registration authority of the administrative division in which the project is located. The application consists of:

a) A written request for permission for project adjustments;

b) Copies of the Certificate of Enterprise Registration or an equivalent document of the transferee;

c) Copies of the investor’s resolution or decision on restructuring which specifies the settlement of assets, rights and obligations to the project.

4. Within 15 working days from the receipt of the valid application as specified in Clause 3 of this Article, the investment registration authority shall adjust or issue the Investment Registration Certificate.

5. If the project is not executed under an Investment Registration Certificate, the investor is not required to follow procedures for change of investor specified in Clause 3 and Clause 4 of this Article. Ownership or assets shall be transferred to the transferee in accordance with civil law, regulations of law on enterprises, and relevant regulations of law.

Article 39. Procedures for adjusting an investment project according to a court decision or arbitral award

1. Where a project has to be adjusted according to a court decision or arbitral award, the investor shall make such adjustments in accordance with the court decision or arbitral award and keep executing the project.

2. With regard to an investment project executed under an Investment Registration Certificate, the investor shall submit 01 set of application to the investment registration authority of the administrative division where the project is located. The application consists of:

a) A written request for permission for project adjustments;

b) Copies of the ID’s card or passport (if the investor is an individual); copies of the Certificate of Enterprise Registration or an equivalent document which certifies the investor’s legal status (if the investor is an organization);

c) The effective court decision or arbitral award.

3. The investment registration authority shall adjust the Investment Registration Certificate within 15 working days from the receipt of the valid application as specified in Clause 2 of this Article.

Article 40. Procedures for reissuance of Investment Registration Certificate and correction of information thereon

1. Where an Investment Registration Certificate is lost or damaged, the investor shall submit an application for its reissuance to the investment registration authority. The investment registration authority shall consider reissuing the Investment Registration Certificate within 05 working days from the day on which the application is received.

2. If information on the Investment Registration Certificate is different from that on the application for investment registration, the investment registration authority shall rectify information on the Investment Registration Certificate within 03 working days from the day on which the investor’s request is received.

3. With regard to a project having an Investment Registration Certificate without having to follow procedures for issuance of the Investment Registration Certificate specified in Clause 1 Article 36 of the Law on Investment, the investor may keep executing the project and return the Investment Registration Certificate.

Section 4. PROCEDURES FOR SHUTTING DOWN INVESTMENT PROJECTS

Article 41. Conditions and procedures for shutting down an investment project and revoking its Investment Registration Certificate

1. A project is shut down in the cases specified in Clause 1 Article 48 of the Law on Investment.

2. Procedures for shutdown of a project:

a) If the investor decides to shut down the project as set out in Point a Clause 1 Article 48 of the Law on Investment, the investor shall send the decision on project shutdown to the investment registration authority within 15 days from its issuance date together with the Investment Registration Certificate (if any);

b) Where a project is shut down under the conditions of a contract, enterprise’s charter, or upon the expiration of its operating period specified in Point b and Point c Clause 1 Article 48 of the Law on Investment, the investor shall submit a notification and return the Investment Registration Certificate (if any) to the investment registration authority within 15 days from the date of shutdown of the project together with documents about the shutdown;

c) In case of shut down of a project set out in Point d, dd, e, g, and h Clause 1 Article 48 of the Law on Investment, the investment registration authority shall issue a decision on project shutdown and revoke the Investment Registration Certificate (if the project has one). The Investment Registration Certificate is annulled from the effective date of the decision on project shutdown.

3. With regard to a project operating under an Investment Certificate (also the certificate of business registration) or Investment License, the investment registration authority shall issue a decision on project shutdown without revoking the Investment Certificate (also the certificate of business registration) or Investment License. In this case, the business registration information on the Investment Certificate (also the certificate of business registration) or Investment License is still effective.

4. In case of concurrent shutdown of a project and a business organization, the project shall be shutdown as set out in this Article and the investor shall follow procedures for shutting down the business organization according to relevant regulations of law.

5. After the project is shut down, it shall be liquidated as follows:

a) The investor liquidates the project in accordance with regulations of law on asset liquidation;

b) With regard to a project that receives land, leases land from the State, or repurposes land, the right to use land and property on land shall comply with regulations of law on land;

c) During the course of liquidation of a project, if the investor is a business organization that is dissolved or goes bankrupt, the project shall be liquidated in accordance with regulations of law on dissolution and bankruptcy of business organizations.

Article 42. Shutdown of a project in case the investment registration authority cannot contact the investor

1. Where a project is shut down and the investment registration authority cannot contact the investor or the investor’s legal representative, the investment registration authority shall follow the procedures below:

a) Make a record on the shutdown of the project and failure to contact the investor;

b) Send a request that the investor contact the investment registration authority to settle the project shutdown to the address registered by the investor with the investment registration authority. Within 30 working days from the day on which the request is sent, if the investor does not contact, the investment registration authority take the step in Point c of this Clause;

c) Send a request for assistance in contacting the investor to, if the investor is a Vietnamese person, the People’s Committee of the commune where the investor resides, or, if the investor is a foreign entity, the diplomatic mission in Vietnam of the investor’s home country and publish a notice that the investor contact the investment registration authority for 90 days on National Foreign Investment Web Portal.

2. After all the measures specified in Clause 1 of this Article are taken and the investor or the investor’s legal representative cannot be contacted after 12 months from the date of shutdown of the project, the investment registration authority shall issue a decision on project shutdown.

3. After the investment registration authority issues such decision, assets of the project shall be managed in accordance with regulations of law on management of property of absent residents.

4. Within the scope of their competence, competent authority shall perform the following tasks:

a) The investment registration authority shall appoint a person to supervise the management of assets of the project after its shutdown at the request of competent authority and persons having relevant rights and benefits, unless otherwise prescribed by law;

b) The tax authority and customs authority shall take the measures prescribed by regulations of law on tax administration and relevant regulations of law to collect tax debts and other financial obligations to the State of the investor (if any);

c) The land authority shall withdraw land and settle property on land if the project’s land is withdrawn as prescribed by regulations of law on land;

d) The labor authority shall assist workers who lose their jobs and provide relevant benefits in accordance with regulations of law on labor;

dd) Other competent authorities shall perform other management tasks related to the project within the scope of their competence.

5. Every request of dispute between the investor and other entities over rights and obligations relevant to the project shall be settled through court or arbitration proceedings as agreed by the parties and in accordance with law.

Article 43. Invalidation of the decision on investment guidelines

The decision on investment guidelines and decision on adjustments to investment guidelines shall be invalidated if a project is shut down as specified in Article 48 of the Law on Investment.

Section 5. ESTABLISHMENT OF BUSINESS ORGANIZATIONS, CAPITAL CONTRIBUTION, PURCHASE OF SHARES/STAKES BY FOREIGN INVESTORS

Article 44. Establishment of business organizations by foreign investors

1. A foreign investor shall establish a business organization as follows:

a) Follow procedures for issuance of an Investment Registration Certificate specified in Article 29 through 31 of this Decree;

b) Follow procedures for establishment of a business organization after being granted the Investment Registration Certificate mentioned in Point a of this Clause in order to launch the project and business operation.

2. Documentation and procedures for establishment of a business organization shall comply with regulations of law on enterprises and other regulations of law relevant to the type of business entity. The business registration authority must not request the investor to submit any other document other than those specified in regulations of law on enterprises and relevant regulations of law. The content of the Investment Registration Certificate shall not be reconsidered.

3. Charter capital of a business organization established by a foreign investor for execution of an investment project is not necessarily equal to the capital of the project. The business organization mentioned in Point b Clause 1 of this Article shall contribute capital and raise capital to execute the project according to the schedule on the Investment Registration Certificate.

Article 45. Execution of investment project and business operation of foreign-invested business organization

1. From the day on which the Certificate of Enterprise Registration or an equivalent document is issued, the business organization established by a foreign investor shall be the investor that executes the project as set out in the Investment Registration Certificate.

2. If there is new project besides the project granted the Investment Registration Certificate, the foreign-invested business organization shall follow these procedures:

a) The business organization specified in Point a through c Clause 1 Article 23 of the Law on Investment shall follow procedures for issuance of the Investment Registration Certificate as set out in Article 29 through 31 of this Decree;

b) A business organization other than those specified in Point a of this Clause shall make a report in accordance with Clause 5 Article 71 of the Law on Investment. The report shall specify: The project’s name, targets, scale, capital, location, schedule, labor demand, and investment incentives (if any).

3. The foreign-invested business organization may adjust the enterprise registration information at the business registration authority without having to have an investment project. The addition of business lines of a foreign-invested business organization must satisfy investment conditions applied to foreign investor (if any).

4. The foreign-invested business organization may open branches, representative offices, and business locations without having to have an investment project. Documentation and procedures for establishment of branches, representative offices, business locations of a business organization shall comply with regulations of law on enterprises and other regulations of law relevant to the type of business entity.

5. When making investment or trading in securities on securities market, foreign-invested business organizations that are listed public companies and public funds are only required to apply regulations on investment, charter capital holdings, unless regulations of law and international agreements on investment specify otherwise. The Ministry of Finance shall take charge and cooperate with the Ministry of Planning and Investment in providing guidance on this Clause.

Article 46. Procedures for investment through capital contribution, purchase of shares/stakes by foreign investors

1. Foreign investors who make investment through capital contribution or purchase of shares/stakes of business organizations are not required to obtain Investment Certificates.

2. Any business organization invested by a foreign investor through capital contribution or purchase of shares/stakes shall follow procedures for registration of change of members/shareholders at a business registration authority in accordance with regulations of law on enterprises and other regulations of law relevant to its type of business entity, except for the following cases:

a) The investor contributes capital to or purchase shares/stakes of the business organization whose business lines are subject to conditions applied to foreign investors;

b) The capital contribution or purchase of shares/stakes that leads to a foreign investor or business organization specified in Point a, Point b, and Point c Clause 1 Article 23 of the Law on Investment holds 51% of charter capital of the business organization or more in the following cases: The charter capital held by the foreign investor is increased to 51% or over and the charter capital held by the foreign investor is increased while such foreign investor is holding 51% charter capital of the business organization or more.

3. A foreign investor that makes investment through capital contribution or purchase of shares/stakes of a business organization in the cases specified in Point a and Point b Clause 2 of this Article shall follow these procedures:

a) The investor shall submit 01 application for registration of capital contribution or purchase of shares/stakes as set out in Clause 2 Article 26 of the Law on Investment to the Department of Planning and Investment of the province where the business organization’s headquarters is located;

b) Within 15 days from the receipt of the valid application as set out in Point a of this Clause, the Department of Planning and Investment shall assess the foreign investor’s fulfillment of investment conditions and send a notification to the investor;

c) After receiving the notification specified in Point b of this Clause, the business organization invested by the foreign investor through capital contribution or purchase of shares/stakes shall follow procedures for registration of change of members/shareholders at a business registration authority in accordance with regulations of law on enterprises and other regulations of law relevant to its type of business entity.

4. The business organization invested by the foreign investor is not required to follow procedures for issuance or adjustment of the Investment Registration Certificates or decisions on investment guidelines for the projects executed before the foreign investor makes such investment.

Section 6. INVESTMENT IN INDUSTRIAL PARKS, EXPORT-PROCESSING ZONES, HI-TECH ZONES, ECONOMIC ZONES

Article 47. Operation of investors executing investment projects in industrial parks, export-processing zones, economic zones, and hi-tech zones

1. Leasing or purchasing existing buildings, offices, warehouses and depots to serve their business operation.

2. Paying for the use of technical infrastructure and service facilities, including roads, electricity supply, water supply and drainage, communications, treatment of wastes and wastewater, and other public facilities (hereinafter referred to as infrastructure charges)

3. Transferring, receiving the right to use land or lease land with available infrastructure to construct buildings, offices, and other works serving their business operation in accordance with regulations of law on land and real estate trading.

4. Leasing, subleasing their buildings, offices, and other works to serve their business operation in accordance with regulations of law on land and real estate trading.

5. Performing other activities specified in the Law on Investment, this Decree, and relevant regulations of law.

Article 48. Operation of investors executing investment projects and operating infrastructure of industrial parks, export-processing zones, economic zones, and hi-tech zones

1. Constructing buildings, offices, warehouses and depots for sale or for lease.

2. Fixing rents for land with available infrastructure; charges for using infrastructure; rents and selling prices for buildings, offices, warehouses and depots, and other services charges as registered with management board. Price brackets and prices for use of infrastructure shall be registered every 6 months or when there are changes.

3. Collecting infrastructure charges.

4. Transfer the right to use land, lease land, sublease land with available infrastructure in industrial parks, export-processing zones, hi-tech zones, economic zones to other investors in accordance with regulations of law on land and real estate trading.

5. Performing other activities specified in the Law on Investment, this Decree, and relevant regulations of law.

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