Chương V Nghị định 15/2015/NĐ-CP: Lựa chọn nhà đầu tư và ký kết thỏa thuận đầu tư, hợp đồng dự án

Chapter V

INVESTOR SELECTION AND THE CONCLUSION OF INVESTMENT AGREEMENTS AND PROJECT CONTRACTS

Article 29. Investor selection

1. The selection of investor is carried out in the form of open bidding or contractor appointment.

2. An investor may receive concession in the investor selection progress if such organization has a feasibility study report or has a project proposal (applied to group C projects) approved by Ministries, regulatory bodies or provincial People’s Committees.

3. Conditions, procedures for investor selection and concession granted to the investor in the bidding process shall be according to the regulations on bidding.

Article 30. Conclusion of the investment agreement

1. Regulatory agencies shall organize the project contract negotiation with the investor (hereinafter referred to as the contracting party) that is selected according to the provisions of Article 29 of this Decree.

2. After the project contract negotiation, the regulatory agency and investor may sign an investment agreement to confirm the following contents:

a) The draft of project agreement;

b) The rights and obligations of each contracting party to the implementation of the procedures prescribed in Article 40 and 42 of this Decree to be issued with the Investment Registration Certificate and set up the project enterprises;

c) Other matters according to the agreement between the parties.

Article 31. Conclusion of the project contract

1. After receiving the Investment Registration Certificate as prescribed in Clause 3 of Article 40 of this Decree, the regulatory agency and the investor may sign the project contract.

2. With regard to group C project, after completing the project contract negotiation, the regulatory agencies and the investor may sign the project contract.

3. The rights and obligations of the project enterprise are negotiated in one of the following ways:

a) The project enterprise shall sign a contract with the investor to become a contracting party who is bound to the project contract;

b) The regulatory agencies, investors and project enterprises shall enter into the written permission allowing the project enterprise to exercise the rights and assume obligations of investors specified in the investment registration certificate and the project contracts. This document is an integral part of the project contract.

Article 32. Contents of the project contract

1. Based on the target, characteristic and type of project contract, the contracting parties agree to all or some of the following basic contents:

a) The target, scope, location, time limit and progress of the project; time for the construction of works in the project;

b) Requirements that technique, technology, quality of works, products or supplied services must conform to;

c) The total investment and financial plans of the project;

d) The conditions, the rate and the progress of the disbursement of the State funding (if any);

dd) Requirements for the use of land and related work;

e) The indemnity, site clearance and the resettlement;

g) The construction, inspection, monitoring, quality control, acceptance testing and final settlement of the project;

h) Inspection, operation, maintenance, sales and development of projects; project transfer;

i) The safety and environment protection;

k) The conditions and procedures for project acceptance of the lenders and appointed organizations;

l) Risk allocation between the regulatory agencies and investors; the force-majeure events and handling principles;

m) The incentives and investment guarantee (if any);

n) The laws on governing relation of contracting parties in the contracts, relevant contracts and solutions to handling disputes;

o) The effect and duration of the project contract;

p) The rules and conditions for amendments and termination of the project contract; the transfer of rights and obligations agreed under the project contract;

q) Other matters according to the agreement between the contracting parties.

2. The documents enclosed with the project contract (if any) include appendices, documents and other papers integral to the project contract.

3. Based on the types of project contracts specified in Clauses 3, 4, 5, 6, 7, 8 and 9 of Article 3 of this Decree, Ministries, regulatory bodies and provincial People's Committee shall propose the similar types of contract and request the Prime Minister to consider and decide.

4. Based on the regulation laid down in Point 1 of this Article, Ministries and regulatory bodies shall cooperate with the Ministry of Planning and Investment in providing guidance on the contents of the project contract in accordance with the requirements for execution and management of projects owned by each regulatory agency.

Article 33. Lenders’ right to take over the project

1. Lenders are entitled to take over or appoint a competent organization to take over a part or all of the rights and obligations of investors, project enterprises (hereinafter referred to as the take-over right) in case the investor or project enterprise fails to fulfill the obligations specified in the project contract or loan agreement.

2. A written agreement on the project must be made between the lenders and regulatory agencies or the contracting parties. Lenders and regulatory agencies are entitled to decide the time to sign the agreement on the project take-over.

3. After taking over the project, the lender or his/her authorized organization shall assume all of the obligations as an investor, project business as prescribed in the project contract and agreement on the project take-over right.

Article 34. Transfer of rights and obligations under the project agreement

1. Investors may transfer a part or all of the rights and obligations under the project agreement to the lender or another investor.

2. The transfer of a part or all of the rights and obligations under the project agreement shall not affect the target, scope, technical standards, and progress of the project and must meet the conditions for investment and operation according to the regulations defined in the law on investment and other agreed requirements specified in the project contract.

3. A written agreement on the transfer prescribed in Clause 1 of this Article shall be made between the parties in the project contract and the transferee. Lender shall negotiate the concession agreement under the terms of the loan agreement.

Article 35. Amendments to the project contract

Project contract may be amended due to a change of scale, technical standards, the contractual total investment or a force-majeure event, the adjustment to the feasibility study report as prescribed in the regulation in Article 28 of this Decree and other cases specified in the project contract.

Article 36. Contract term

1. The duration of the project contract shall be agreed upon between the parties according to the field, the scope, the characteristic and type of contracts, projects.

2. Project contract may ends its validity if the agreed contract term expire, or else the project contract may be terminated prior to the maturity date due to the violation of one of the parties without that defaulting party’s effective remedies, due to force majeure events or other cases specified in the project contract.

3. The parties shall negotiate the conditions for the termination of the project contract and measures to handle any issue that may arise during the contract termination.

Article 37. Application of foreign laws

1. The contracting parties may negotiate the application of foreign laws to govern the following contracts:

a) A project contract of which one contracting party is a foreign investor;

b) A contract that is guaranteed by the Government for the obligations prescribed in Article 57 of this Decree.

2. The Agreement that applies foreign laws specified in Clause 1 of this Article shall be conformable to Vietnam law on selection and application of foreign laws.

Article 38. Performance guarantee

Regulatory agencies and investor shall negotiate the form, value, duration of performance guarantee according to the regulations on bidding