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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence
- Freedom - Happiness
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No.
101/2006/ND-CP
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Hanoi,
September 21, 2006
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DECREE
PROVIDING
FOR THE RE-REGISTRATION, TRANSFORMATION, AND REGISTRATION FOR NEW INVESTMENT
CERTIFICATES OF FOREIGN-INVESTED ENTERPRISES UNDER THE PROVISIONS OF THE ENTERPRISE
LAW AND THE INVESTMENT LAW
THE
GOVERNMENT
Pursuant to the December 25, 2001 Law on Organization
of the Government;
Pursuant to the November 29, 2005 Investment Law;
Pursuant to the November 29, 2005 Enterprise
Law;
At the proposal of the Minister of Planning and Investment,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Scope of regulation
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1. The re-registration and transformation stipulated in
Clauses 2 and 3, Article 170 of the Enterprise Law of foreign-invested
enterprises which have been granted investment licenses under the Law on
Foreign Investment in Vietnam; and the registration for new investment
certificates stipulated in Clause 1, Article 88 of the Investment Law by
parties to business cooperation contracts which have been granted investment
licenses under the Law on Foreign Investment in Vietnam.
2. Rights and obligations of foreign-invested enterprises
which are not required to make re-registration under the Enterprise Law and the
Investment Law; the adjustment of investment licenses of foreign-invested
enterprises which are not re-registered or do not register for new investment
certificates.
Article 2.- Subjects of application
1. Foreign-invested enterprises which have been granted
investment licenses under the Law on Foreign Investment in Vietnam,
including:
a/ Joint venture enterprises;
b/ Enterprises with 100% foreign capital;
c/ Foreign-invested joint-stock companies set up under the
Government’s Decree No. 38/2003/ND-CP of April 15, 2003, on transformation of a
number of foreign-invested enterprises into joint-stock companies.
2. Investment projects in the form of business cooperation
contract, which have been granted investment licenses under the Law on Foreign
Investment in Vietnam.
Article 3.- Interpretation of
terms
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2. “Enterprise
transformation” means the transformation of the type of enterprise by a
foreign-invested enterprise under the Enterprise Law and the Investment Law for
which a new investment certificate is granted.
3. “Registration for a new investment certificate” means
the registration by the parties to a business cooperation contract to convert
the investment license into an investment certificate.
4. “Re-registered enterprise” means a foreign-invested
enterprise which is granted a new investment certificate under the Enterprise
Law and the Investment Law in replacement of the investment license granted
under the Law on Foreign Investment in Vietnam.
5. “Transformed enterprise” means a foreign-invested
enterprise which changes its form under the Enterprise Law and the Investment
Law and is granted a new investment certificate.
6. “Enterprise
which is not re-registered” means an enterprise which does not make
re-registration within 2 years after the effective date of the Enterprise Law.
7. “Valid copy” means a notarized copy or a copy
authenticated by the agency granting the original.
Article 4.- Right to decide on
re-registration or transformation of enterprises
1. A foreign-invested enterprise may decide on its
re-registration or transformation in accordance with the provisions of the
Enterprise Law, the Investment Law and this Decree.
2. The party to a business cooperation contract may decide
to register for a new investment certificate, for projects which have been
granted investment licenses under the Investment Law.
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1. Investment certificates shall be made according to a
form set by the Ministry of Planning and Investment. The investment certificate
is concurrently the business registration certificate.
2. The competence to grant investment certificates and the
state management of re-registered and transformed enterprises shall be as
stipulated in the Government’s Decree guiding the implementation of a number of
articles of the Investment Law.
Chapter II
RE-REGISTRATION AND TRANSFORMATION OF FOREIGN-INVESTED
ENTERPRISES
Article 6.- Forms of
re-registration of enterprises
1. A joint-venture enterprise or an enterprise with 100%
foreign capital with two or more owners shall be re-registered into a limited
liability company with two or more members.
2. An enterprise with 100% foreign capital invested by a
foreign organization or individual shall be re-registered into a one-member
limited liability company.
3. A foreign-invested joint-stock company set up under the
Government’s Decree No. 38/2003/ND-CP of April 15, 2003, shall be re-registered
into a joint-stock company.
Article 7.- Dossiers of
re-registration of enterprises
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1. A written application for re-registration of the
enterprise, signed by the representative at law of the enterprise.
2. The draft charter of the enterprise, which has been
amended to comply with the provisions of enterprise law.
3. Valid copies of the investment license and modified
licenses.
If, when making re-registration, the enterprise requests
the modification of the contents related to business registration and the
investment project, the above dossier must also comprise documents required by
law for the modified contents.
The investment certificate-granting agency may not ask
enterprises to submit papers other than those specified in this Article.
Article 8.- Order and procedures
for re-registration of enterprises
1. The enterprise applying for re-registration shall
submit a dossier specified in this Decree to the investment
certificate-granting agency according to the provisions of Clause 2, Article 5
of this Decree and be accountable for the truthfulness and accuracy of the
contents of the re-registration dossier.
2. Within 15 working days after receiving a complete and
valid dossier, the investment certificate-granting agency shall consider and
grant an investment certificate. If refusing to grant a certificate, or
requesting modification of the dossier, it shall clearly notify in writing the
enterprise of the reasons therefor.
Article 9.- Rights and obligations
of re-registered enterprises
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2. A re-registered enterprise has the following rights:
a/ To operate under the investment certificate;
b/ To retain its registered name, seal, account and tax
identification number.
c/ Other rights provided for in the Enterprise Law and the
Investment Law.
3. A re-registered enterprise has the obligations defined
in the Enterprise Law and the Investment Law.
Article 10.- Forms of
transformation of enterprises
1. A joint-venture enterprise or an enterprise with 100%
foreign capital with two or more owners shall be transformed into a one-member limited
liability company.
2. An enterprise with 100% foreign capital invested by a
foreign organization or individual shall be transformed into a limited
liability company with two or more members.
3. A foreign-invested enterprise being a limited liability
company shall be transformed into a joint-stock company and vice versa.
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1. To be-transformed enterprises must satisfy the
conditions set in the Enterprise Law applicable on a case-by-case basis.
2. When enterprises are transformed into joint-stock
companies, owners of foreign-invested enterprises must be founding
shareholders. When an enterprise has many owners, at least one of them must be
a founding shareholder.
Article 12.- Dossiers of
transformation of enterprises
1. A dossier of transformation of an enterprise comprises:
a/ A written application for transformation of the
enterprise clearly stating the contents of transformation, signed by the
representative at law of the enterprise;
b/ The draft charter of the enterprise, which is compliant
with the enterprise law;
c/ The decision on enterprise transformation, issued by
the owner of the enterprise with 100% foreign capital, the management board of
the joint-venture enterprise, or the General Meeting of Shareholders of the
foreign-invested joint-stock company. Such a decision must contain the
following principal contents: names and addresses of the head offices of the
pre-transformed enterprise and transformed enterprise; time limit and conditions
for the transfer of property, contributed capital amounts, shares or bonds of
the foreign-invested enterprise to the transformed enterprise; plan on
employment of laborers; and time limit for transformation.
The decision on enterprise transformation must be sent to
all creditors and notified to the enterprise’s laborers within 15 days after it
is approved;
d/ Valid copies of the investment license and modified
licenses.
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a/ For a new member being an individual: a copy of the
identity card, passport or other lawful personal identification paper;
b/ For a new member being a legal person: a copy of the
establishment decision, business registration certificate or other paper of
equivalent validity of the legal person; the authorization decision, identity
card, passport or other lawful personal identification paper of the authorized
representative.
For a new member being a foreign legal person, the copies
of the business registration certificate and charter must be authenticated by
the agency where the legal person makes registration within 3 months before the
date of submission of the dossier.
3. When, upon transformation, the enterprise requests
modification of contents related to business registration and the investment
project, the transformation dossier must also comprise documents required by
law for the to be-modified contents.
Article 13.- Order of
transformation of enterprises
1. The enterprise transformation may be carried out after
or at the same time with the re-registration of foreign-invested enterprises.
2. The to be-transformed enterprise shall submit a dossier
provided for in this Decree at the investment certificate-granting agency under
the provisions of Clause 2, Article 5 of this Decree and be responsible for the
truthfulness and accuracy of the contents of the enterprise transformation
dossier.
3. Within 30 working days after receiving a complete and
valid dossier, the investment certificate-granting agency shall consider and
grant an investment certificate. If refusing to grant a certificate or
requesting modification of the dossier, it shall clearly notify in writing the
enterprise of the reasons therefor.
Article 14.- Rights and
obligations of transformed enterprises
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2. A transformed enterprise is entitled to operate under
its investment certificate; to continue to enjoy investment preferences stated
in the investment license, for licensed investment projects in which foreign
investors hold at least 30% of the charter capital; and to other rights
specified in the Enterprise Law and the Investment Law.
3. A transformed enterprise has the obligations defined in
the Enterprise Law and the Investment Law.
Article 15.- Re-registration and
transformation of enterprises in case of commitment to transfer assets without
indemnification
1. Foreign-invested enterprises whose foreign investors
have committed to transfer without indemnification the invested assets at the
end of the operation duration to the Vietnamese Government may be re-registered
or transformed under this Decree if satisfying the following conditions:
a/ Not changing the commitment to transfer their assets
without indemnification, for licensed projects;
b/ Taking over and continuing to execute investment
projects related to the assets which the foreign investors have committed to
transfer without indemnification.
2. In case of changes in the contents related to the
transfer without indemnification, the re-registration and transformation under
the provisions of this Decree must be approved by the Prime Minister.
Chapter III
REGISTRATION FOR NEW INVESTMENT CERTIFICATES
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The registration for new investment certificates under the
provisions of Article 88 of the Investment Law applies to investment projects
in the form of business cooperation contract which were licensed before July 1,
2006.
Parties to business cooperation contracts that request the
re-registration of investment projects under the Investment Law shall carry out
procedures for registration for a new investment certificate under this Decree.
Article 17.- Dossiers of
registration for new investment certificates
A dossier of registration for a new investment certificate
comprises:
1. A written application for a new investment certificate,
signed by the parties to the business cooperation contract.
2. Valid copies of the investment license and modified
licenses.
When the parties to a business cooperation contract
request modification of the contents related to the investment project and
business cooperation contract, the above dossier must also comprise documents
required by the investment law for the to be-modified contents.
The investment certificate-granting agency may not request
parties to business cooperation contracts to submit papers other than those
specified in this Article.
Article 18.- Order and procedures
for registration for new investment certificates
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2. Within 7 working days after receiving a complete and
valid dossier, the investment certificate-granting agency shall consider and
grant an investment certificate. If refusing to grant a certificate or
requesting modification of the dossier, it shall clearly notify in writing the
enterprise of the reasons therefor.
Article 19.- Rights and
obligations of parties to business cooperation contracts
1. To operate under new investment certificates.
2. To take over the rights and obligations specified in
the granted investment licenses and modified licenses, the approved business
cooperation contracts and the Investment Law.
Chapter IV
FOREIGN-INVESTED ENTERPRISES WHICH ARE NOT
RE-REGISTERED AND BUSINESS COOPERATION CONTRACTS FOR WHICH INVESTMENT
CERTIFICATES ARE NOT RENEWED
Article 20.- Rights and
obligations of enterprises which are not re-registered
1. An enterprises which is not re-registered has the
rights:
a/ To continue to operate under the granted investment
license and enterprise charter; to propose the modification of the investment
license when necessary, except the modification of business lines and operation
duration;
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c/ Other rights provided for by the Enterprise Law and the
Investment Law.
2. An enterprises which is not re-registered has the
obligations:
a/ To operate only within the business lines and duration
specified in the granted investment license. The granted investment license is
concurrently the business registration certificate;
b/ To observe the provisions of the Enterprise Law, the
Investment Law and relevant laws.
Article 21.- Rights and
obligations of parties to business cooperation contracts for which investment
certificates are not renewed
1. The parties to a business cooperation contract may
continue to operate under the granted investment license and the approved
business cooperation contract.
2. The parties to a business cooperation contract are
obliged to observe the provisions of the Investment Law and relevant laws.
Article 22.- Modification of
investment licenses of enterprises which are not re-registered and business
cooperation contracts for which investment certificates are not renewed
1. If, in the course of operation, foreign-invested
enterprises which are not re-registered and parties to business cooperation
contracts for which investment certificates are not renewed wish to modify
their investment licenses, their demand shall be considered, except the
modification of business lines and operation duration.
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3. The investment certificate-granting agency shall issue
a document approving the modification without modifying the investment license
in the following cases:
a/ The enterprise opens a transaction office, goods store
or shop for display of products (other than a production unit) in the province
or centrally run city where the enterprise is headquartered;
b/ The enterprise moves its head office within the
province or centrally run city.
Article 23.- Dossiers, order and
competence to modify investment licenses
1. Depending on the to be-modified contents of their
investment licenses, enterprises which are not re-registered and parties to
business cooperation contracts for which investment certificates are not
renewed shall make dossiers of modification as stipulated in the Decree guiding
the implementation of a number of articles of the Investment Law and send them
to investment certificate-granting agencies.
2. The order and competence to grant certificates of
modification of investment licenses shall comply with the provisions on
decentralization of state management of investment in the Decree guiding the
implementation of a number of articles of the Investment Law.
Chapter V
IMPLEMENTATION PROVISIONS
Article 24.- Implementation
provisions
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2. The Minister of Planning and Investment shall, based on
this Decree, promulgate the form of dossier of enterprise re-registration and
transformation; the form of proposal for a new investment certificate; and the
form of certificate of modification of an investment license.
3. Ministers, heads of ministerial-level agencies, heads
of government-attached agencies, and presidents of provincial/municipal
People’s Committees shall implement this Decree.
ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung