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PRIME
MINISTER’S SPECIAL WORKING GROUP ON REVIEW AND RELIEF OF PROBLEMS AND
DIFFICULTIES, AND ENHANCEMENT OF IMPLEMENTATION OF INVESTMENT PROJECTS
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
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No. 2541/CV-TCT
Re. providing guidance on implementing
business investment projects according to provisions of law.
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Hanoi, April 18,
2022
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To: The
People’s Committees of provinces and central-affiliated cities
Implementing the Prime Minister's Decision No.
1242/QD-TTg dated July 16, 2021 on review and relief of problems and
difficulties and enhancement of implementation of investment projects falling
within the remit of ministries, central and local authorities, the Ministry of
Planning and Investment cooperated with ministries and central authorities in
reviewing, consolidating and reporting problems and difficulties in the
implementation of business investment projects mentioned in Official Dispatch
No. 7521/BKHDT-PC dated November 01, 2021 to the Permanent Deputy Prime
Minister Pham Binh Minh, the Head of the Working Group.
Implementing the direction of the Permanent Deputy
Prime Minister mentioned in Official Dispatch No. 8393/VPCP-CN dated November
16, 2021 and Notification No. 80/TB-VPCP dated March 23, 2022 of the Office of
the Government, the Ministry of Planning and Investment provides guidance on
implementing business investment projects according to provisions of law
(Appendices enclosed with).
For your information and compliance./.
ON BEHALF OF Working group
PP. HEAD
Deputy Head
Deputy Minister of Planning and Investment
Tran Duy Dong
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Guidance on implementing business investment
projects according to provisions of law
(enclosed with Official Dispatch No. 2541/CV-TCT dated April 15, 2022
of the Prime Minister’s Special Working Group)
I. Contents related to procedures for investor
selection, investment guideline approval and investment registration
certificate issuance
1. Concerning an investment project to build
headquarters and offices or carry out commercial works, is it necessary to meet
the condition for determining whether the investment project uses land that the
project belongs to a residential housing development plan or program in
accordance with regulations of law on housing as prescribed in Article 11 of
Decree No. 25/2020/ND-CP?
Answer:
According to the provisions in clause 3 Article 11
of Decree No. 25/2020/ND-CP dated February 28, 2020 elaborating certain
articles of the Law on Procurement in terms of investor selection [1], a
land-based investment project is subject to investor selection in accordance
with the provisions of this Decree if the project belongs to a residential
housing development plan or program in accordance with regulations of law on
housing; an urban development program (if any) in accordance with
regulations of law on urban development.
Thus, according to the above regulations, the
condition that the project belongs to a residential housing development program
or plan only applies in cases where the investment objective or activity of the
land-based project is housing construction; therefore, this condition is not applied
to investment projects to build headquarters, offices, or carry out commercial
works of which investment objectives or activities are not housing
construction.
2. Are investment projects to build and trade
industrial park infrastructure subject to auctions of land use rights (LURs) or
bidding for investors?
Answer:
According to Appendix IX enclosed with Decree No.
15/2021/ND-CP dated March 03, 2021 of the Government elaborating certain
regulations on management of construction investment projects, an investment
project to build infrastructure of an industrial park or an export processing
zone is classified as a multi-purpose construction project (not a civil
engineering project). Thus, the project does not have to undergo bidding for
selection of investors as specified in point b clause 1 Article 1 of Decree No.
25/2020/ND-CP [2].
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Thus, investment projects to build and trade
infrastructure of industrial parks or export processing zones are not subject
to auctions of LURs and bidding for investors as specified in Article 14b of
Decree No. 43/2014/ND-CP dated May 15, 2014 of the Government elaborating
certain articles of the Land Law [4].
If two investors or more in an investment project
have submitted valid applications for project execution at one location, the
investor selection shall comply with the provisions in clause 7 Article 29 of
Decree No. 31/2021/ND-CP dated March 26, 2021 of the Government elaborating the
Law on Investment.
Section 1 Chapter II of the Law on Bidding (Article
20, Article 22) provides for investor selection methods including competitive
bidding and direct contracting, etc.; Article 21 of this Law provides for
limited bidding which is applied in cases where packages have high technical
requirements or involve special techniques that can only be satisfied by some
bidders (not applicable in case of investor selection).
In addition, according to Article 13 and Article 16
of Decree No. 25/2020/ND-CP dated February 28, 2020 of the Government
elaborating the Law on Bidding in terms of investor selection [5], the
preliminary evaluation of the capacity and experience of investors applying for
project execution for determining the number of investors that apply for the project
execution and are qualified in terms of the capacity and experience shall be a
basis for following procedures for investor approval or organizing competitive
bidding for investor selection.
The compulsory competitive bidding mentioned in
this case is reasonable for the above-mentioned regulations in order to ensure
the fairness, transparency and selection of investors qualified for project
execution.
4. How is an investor selected among eligible investors
under bidding laws when at least 02 (two) investors have submitted their
proposals for an investment project specified in clause 7 Article 29 of Decree
No. 31/2021/ND-CP?
Answer:
According to the provisions in clause 7 Article 29
of Decree No. 31/2021/ND-CP, in case an investment project is not subject to a
LUR auction or bidding for investor selection but at least 02 investors have
submitted valid applications for investment project execution at one location,
the investment guideline approving authority shall consider granting approval
for investment guidelines and assign a competent regulatory authority to select
to apply the law on bidding to select an investor among the investors that have
submitted valid applications.
In this case, the competent regulatory authority
specifically determines the terms and conditions to be complied with according
to the law on bidding and other laws, ensuring fairness, transparency and
economic efficiency according to the provisions in Point b, Clause 2, Article 1
of Decree No. 25/2020/ND-CP.
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Answer:
Regulations on specialized agencies affiliated to
the Provincial People's Committees, agencies affiliated to the Provincial
People's Committees, and district-level People's Committees that prepare
project proposals specified in Clause 2, Article 12 of Decree No. 25/2020/ND-CP
[6] only apply to land-based investment projects that are not subject to
investment guideline approval according to the provisions of investment law.
For land-based investment projects subject to
investment guideline approval according to the provisions of investment law,
Decree No. 31/2021/ND-CP shall be complied with.
Therefore, there is no contradiction between the
regulations on agencies preparing project proposals according to Decree No.
25/2020/ND-CP and Decree No. 31/2021/ND-CP.
6. What to do if there are at least two
investors meet the preliminary requirements for capacity and experience, but
then one investor requests in writing not to participate in bidding for project
execution, and there is only one qualified investor left?
Answer:
The preparation, submission of applications,
evaluation of investors’ capacity and experience and investor selection shall
comply with the provisions in Article 13 and Article 16 of Decree No.
25/2020/ND-CP. 7
According to these regulations, the preliminary evaluation of the capacity and
experience of investors applying for project execution for determining the
number of investors that are qualified in terms of the capacity and experience
shall be a basis for following procedures for investor approval or making
competitive bidding for investor selection.
In case there are at least 02 interested investors
who were qualified in terms of the capacity and experience, competitive bidding
must be carried out to select investors for project execution, regardless
of the qualified investors’ rejections in writing.
7. In case there are at least two investors meet
requirements of pre-qualification under Decree No. 30/2015/ND-CP, must the
bidding documents be made in accordance with the provisions of Decree No.
30/2015/ND-CP or Decree No. 25/2020/ND-CP?
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According to Clause 3, Article 90, Decree No.
25/2020/ND-CP [8] and Point b, Clause 1, Article 7, Circular No.
09/2021/TT-BKHDT providing for the transition applicable to projects of which
prequalification documents have been issued before the effective date of Decree
No. 25/2020/ND-CP, the content of bidding documents is developed according to
the provisions of Decree No. 30/2015/ND-CP and Circular No. 16/2016/TT-BKHDT
dated December 16, 2016 of the Minister of Planning and Investment providing
guidance on preparation of request for proposals, bidding documents for
selection of investors carrying out land-based projects and provisions of law
on land, housing, real estate business, investment and construction which are
effective at the time of approval of bidding documents.
8. If the investors wish to participate in
bidding for the land zone in which the project is executed to achieve an objective
(e.g. packaging production) other than one of the project's objectives such as
deciding approval for investment guidelines (e.g. garment processing), how will
the bidding be organized?
Answer:
According to the provisions in clause 1 and clause
2 Article 29 of the Law on Investment, the investor selection by bidding shall
be made after investment guideline approval.
According to the provisions in Article 12 of Decree
No. 25/2020/ND-CP [9], if a project is subject to investment guideline approval
under provisions of law on investment, the investment guideline approval
decision shall be the written decision to approve the list of land-based
investment projects as well. Pursuant to the investment guideline approval
decision of the project under provisions of law on investment, the Planning and
Investment Department shall cooperate with relevant agencies in determining
preliminary requirements in terms of capacity and experience of investors, and
reporting them to the Provincial People’s Committee for approval before
disclosing the list of projects, etc.
Thus, in principle, the selection of investors in
this case is made on the basis of the investment guideline approval decision.
In addition, pursuant to clause 2 Article 17 of the
Law on Bidding, the bidding will be cancelled in case of “change in the
investment objectives or scale recorded in the bidding documents or request for
proposals”.
Therefore, it is required to consider specifically
the actual situations that arise during the investor selection to have a basis
for implementing the above regulations.
9. After the investment guideline decision is
approved, will the Project List announced by Department of Planning and
Investment or agency organizing bidding?
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According to the provisions of Clause 4, Article 12
of Decree No. 25/2020/ND-CP, [10] the Department of Planning and Investment or
the Economic Zone Management Board shall announce the Project List.
10. According to the provisions in Article 10 of
Decree No. 25/2020/ND-CP, international bidding shall be carried out if the
total estimated cost of a project is at least 800 billion VND and at least two
investors are qualified in terms of capacity and experience, including at least
one foreign investor. Thus if the total estimated cost of a project is at least
800 billion VND, must the list of projects or the invitation for expression of
interest (EOI) be made in both Vietnamese and English upon updating?
Answer:
According to clause 4 Article 4 of Decree No.
25/2020/ND-CP [11], in addition to the responsibility to publish the
information specified in Clause 1.c of this Article, information about any
land-based investment project whose total estimated cost (excluding cost of
compensation, assistance and relocation, land levy, land rent) is at least 800
billion must be published on the Provincial People’s Committee’s website (if
any) in both English and Vietnamese.
Pursuant to the regulation above, the invitation
for EOI and the list of land-based investment projects must be published on the
national bidding network system in both English and Vietnamese. Currently,
English language is currently available on the system.
11. Are investment projects to build urban areas
and residential areas with a population of less than 4.000 people or less than
20 hectares subject to the provisions of Point b, Clause 1, Article 1 of Decree
25/2020/ND-CP?
Answer:
According to point b clause 1 Article 1 of Decree
No. 25/2020/ND-CP [12], the bidding for investor selection shall be made if
investment projects use land for construction of urban areas; construction of
civil works having one or more functions, including commercial housing; office
buildings; commercial and services works.
Thus, investment projects that have land for
construction of urban areas; construction of civil works serving one or
multiple purposes, including commercial housing are carried out if the bidding
is made according to the provisions in point b clause 1 Article 1 of Decree No.
25/2020/ND-CP mentioned above. Conditions for determination of land-based
investment projects shall comply with the provisions in Article 11 of this
Decree.
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Answer:
According to the provision in clause 1 Article 29
of Decree No. 31/2021/ND-CP, if an investment project has objectives and
contents subject to approval for its investment guidelines by different
investment guideline approving authorities, the highest authorized authority
shall grant approval for investment guidelines of the entire project. Thus,
this provision and related provisions in Articles 30, 31 and 32 of the Law on
Investment are the basis for determination of the power to approve investment
guidelines for projects having mixed objectives.
13. What other cases specified in Point d,
Clause 4, Article 29 of the Law on Investment are not subject to auction or
bidding according to the provisions of law?
Answer:
Other cases that are not subject to auction or
bidding in accordance with the provisions of law are specified in point d
clause 4 Article 29 of the Law on Investment, clause 2 and point dd clause 5
Article 29 of Decree No. 31/2021/ND-CP.
Thus, other cases that are not subject to LUR
auctions or bidding for investor selection are those that are not subject to
LUR auctions or bidding for investor selection in accordance with the
provisions of law on land, bidding and related laws.
14. Is the investment guideline approval
compulsory if a mineral extraction project is subject to mining right auction?
The auction for mining rights (if any) has to be carried out before or after
investment guidelines are approved?
Answer:
According to clause 1 Article 32 of the Law on
Investment, the provincial People’s Committees shall grant approval for
investment guidelines of investment projects with proposal for land allocation
or lease by the State without auction or bidding and investment projects with
proposal for land repurposing.
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The auction of mineral extraction rights shall be
conducted according to the provisions in Article 16 of Decree No. 22/2012/ND-CP
dated March 26, 2012 of the Government on auction of mineral extraction rights.
Thus, applications for auction of mineral extraction rights do not require
containing written approvals for investment guidelines.
15. If an investment project is included on the
list of projects to encourage investment in agriculture and rural areas that
was approved by the provincial People's Committee, does it have to obtain the
investment guideline approval according to the Law on Investment or it only
needs to comply with point b clause 1 Article 16 of Decree No. 57/2018/ND-CP
(in case only one enterprise submitted the application)?
Answer:
According to clause 2 Article 156 of the Law on
Promulgation of legislative documents, if various legislative documents contain
different regulations on the same issue, the superior document shall apply. Thus,
it is required to follow investment guideline approval procedures under the
provisions of the Law on Investment if projects to encourage investment in
agriculture and rural areas are subject to investment guideline approval
according to the provisions in Articles 30, 31 and 32 of the Law on Investment.
16. Regarding a project subject to investment
guideline approval by the Provincial People’s Committee, if the project has had
the LUR auction plan approved by a competent regulatory agency and the auction
has not been conducted according to provisions of law on land before January
01, 2021, or the project is subject to LUR auction which is being conducted
according to provisions of law on land and the auction result is not available
before January 01, 2021, is it required to follow procedures for approval for
both investment guidelines and investors after a decision to recognize the
successful LUR auction is issued?
Answer:
Article 120 of Decree No. 31/2021/ND-CP provides
for procedures applicable to projects that have had the LUR auction plans
approved by competent regulatory agencies and the auctions have not been
conducted yet according to provisions of law on land before January 01, 2021,
or projects subject to LUR auctions that are being conducted according to
provisions of law on land and the auction result is not available before
January 1/1/2021.
According to the provision in clause 3 Article 120
of Decree No. 31/2021/ND-CP, if the project is not subject to approval for
its investment guidelines by the National Assembly or Prime Minister as
prescribed in Articles 30 and 31 of the Law on Investment, the investor shall
follow the procedures for issuance of the investment registration certificate
(if any) without having to follow the procedures for investment guideline
approval according to regulations of the Law on Investment and this Decree.
17. Is it necessary to follow investment
guideline approval procedures for projects with proposal for land allocation or
lease by the State by auction or bidding of the provincial People’s Committees
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According to clause 2 Article 29 of the Law on
Investment, the selection of investors carrying projects in accordance with the
provisions in points a and b clause 1 of this Article shall be done after
investment guideline approval, except in cases where investment projects are
not subject to investment guideline approval.
According to the provisions in clause 2 Article 29
of Decree No. 31/2021/ND-CP dated March 26, 2021 of the Government on
elaboration of some articles of the law on investment, for an investment
project subject to approval for its investment guidelines specified in Articles
30, 31 and 32 of the Law on Investment, the investment guideline approving
authority shall consider approving investment guidelines and decide on the
method of investor selection through LUR auction, bidding for investor
selection, or approval for both investment guidelines and investor.
According to the provisions in point a clause 1
Article 32 of the Law on Investment, the provincial People’s Committees shall
grant approval for investment guidelines of investment projects with proposal
for land allocation or lease by the State without auction or bidding or
receipt of LURs by transfer and investment projects with proposal for land
repurposing.
Pursuant to the regulations above, investment
projects with proposal for land allocation or land lease by the State through
LUR auction or bidding for investor selection that do not fall under the provisions
in Articles 30 and 31 and points b, c and d clause 1 Article 32 of the Law on
Investment are not subject to investment guideline approval before LUR auction
or bidding for investor selection.
18. According to clause 5 Article 29 of Decree
No. 31/2021/ND-CP, before approving investment guidelines, it is required to
have written permission for receipt of LURs of agricultural land by conveyance,
capital contribution or lease to carry out investment projects for
non-agricultural manufacture and business in accordance with provisions of law
on land.
According to Article 73 of the Land Law,
developers of projects for manufacture and business are entitled to come to
agreements on receipt of LURs by conveyance, capital contribution or lease to
carry out the projects after identifying the project developers (after approval
for investment guidelines and investors).
If so, does Clause 5, Article 29 of Decree No.
31/2021/ND-CP conflict with the provisions in Article 73 of the Land Law?
Answer:
Point b clause 5 Article 29 Article 31 of Decree
No. 31/2021/ND-CP provides for “competent regulatory agencies shall grant
permission for receipt of LURs of agricultural land by conveyance, capital
contribution or lease to carry out investment projects for non-agricultural
manufacture and business in accordance with provisions of law on land”.
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Article 73 of the Land Law solely provides general
regulations on the use of land whose LURs received by conveyance, capital
contribution or lease for manufacture and business (no regulations on
conditions for receipt of LURs of agricultural land by conveyance, capital
contribution, or lease to implement investment projects for non-agricultural
production and business).
Thus, the provisions in point b clause 5 Article 29
of Decree No. 31/2021/ND-CP are completely consistent with Article 193 and are
not contradictory to Article 73 of the Land Law.
19. For a land-based investment project (large
area, multiple purposes, including: urban areas, services, commerce, sports,
golf courses, etc.) Is it necessary to separate the golf course project into an
independent project?
Answer:
The requirement for submitting proposal for
separating the golf course project included in a project to build a
recreational-tourism area with a golf course into an independent project as
prescribed in Clause 2, Article 10 of Decree No. 52/2020/ND-CP on golf course
investment and business has been repealed in Clause 1, Article 107 of Decree
No. 31/2021/ND-CP.
20. How is the appraisal of the project's
conformity with national planning, regional planning, or provincial planning
carried out in cases where the province's master plan for socio-economic
development up to 2020 has expired and the master plan for the next phase has
not been approved because many specialized plans must be integrated into the
master plan?
Answer:
The appraisal of an investment project's conformity
with planning as specified in point a clause 3 Article 33 of the Law on
Investment shall comply with clause 7 Article 31 of Decree No. 31/2021/ND-CP.
Accordingly, in cases where national planning, regional planning, and
provincial planning has not been decided or approved according to the
provisions of the Planning Law, the assessment of the investment project's
conformity with those planning will be carried out on the basis of assessing
the conformity of the investment project with the planning according to the
provisions of point c, clause 1, Article 59 of this Law on the implementation
of planning integrated into the national planning, regional planning or
provincial planning and the Government's Resolution promulgating the List of
planning integrated into these planning.
In cases where planning integrated into national
planning, regional planning, or provincial planning expires before the national
planning, regional planning, or provincial planning is decided or approved, the
duration of that planning will be extended until the national planning,
regional planning, or provincial planning is decided or approved.
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Answer:
According to the provisions in clause 3 Article 33
of the Law on Investment, the appraisal of proposal for investment guideline
approval includes assessment of the investment project's conformity with the
national planning, regional planning, provincial planning, etc. The content of
the provincial planning has been specifically determined in Article 28 of
Decree No. 37/2019/ND-CP dated May 7, 2019 elaborating certain articles of the
Law on Planning. Accordingly, land use planning has been integrated into
provincial planning and includes content on arrangements for land distribution
and zoning by functional areas and by land types to each district-level
administrative division, etc. Therefore, when assessing the project's
conformity with the provincial planning in Clause 3, Article 33 of the
Investment Law, the contents of conformity with the land use planning are
included.
According to the provisions in clause 7 Article 31
of Decree No. 31/2021/ND-CP, in cases where national planning, regional
planning, or provincial planning has not been decided or approved according to
the provisions of the Planning Law, the assessment of the investment project's
conformity with those planning will be carried out on the basis of assessing
the conformity of the investment project with the planning according to the
provisions of point c, clause 1, Article 59 of this Law on the implementation
of planning integrated into the national planning, regional planning or
provincial planning and the Government's Resolution promulgating the List of
planning integrated into these planning.
22. According to Article 65 of the Mineral Law,
in case of a project to explore and exploit minerals belonging to a mineral
exploration and exploitation area, the Ministry of Natural Resources and
Environment shall decide on Bauxite exploration and exploitation before the
project is approved or licensed. How is the appraisal of estimated land area
carried out when approving investment guidelines of the approved project to
explore and exploit minerals belonging to the Bauxite exploration and
exploitation area?
Answer:
The appraisal of proposal for investment guideline
approval, including assessment of the investment project’s conformity with
national planning, regional planning, provincial planning, estimated land
area, capacity to meet conditions for land allocation, land lease, etc.
shall comply with the provisions in clauses 3 and 4 Article 33 of the Law on
Investment.
Regarding this content, when approving investment
guidelines of a project to explore and exploit minerals belonging to a mineral
exploration and exploitation area, it is required to consider the requirements
and conditions for implementing the investment project according to the
relevant regulations in Article 65 Law on Minerals, Article 3 and Article 8 of
Decree No. 51/2021/ND-CP dated April 1, 2021 on mineral management in national
mineral reserve areas.
23. What regulations have to be followed when
making lists of projects at risk of adverse impact on the environment serving
project appraisal and project technology appraisal according to the provisions
of Point dd, Clause 3, Article 33 of the Law on Investment and Point b, Clause
2, Article 13 of the Law on Technology Transfer?
Answer:
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24. According to regulations, enquired
authorities shall give response and take responsibility for their opinions; if
an authority fails to give any opinion, it is considered that it concurs with
the contents. This is impractical because the provincial People’s Committee can
still disagree, in which case re-appraisal will take a lot of time.
Answer:
According to point b clause 2 Article 6 of Decree
No. 31/2021/ND-CP, the enquired authorities shall give response by the
prescribed deadline and take responsibility for their opinions within their
functions and duties; if an authority fails to give any opinion by the
aforementioned deadline, it is considered that it concurs with the contents
under its management.
Thus, it is required that the People’s Committees
of provinces directs Departments and local authorities of the provinces to
improve the effectiveness of coordination in the process of enquiring and
giving opinions on the investment project appraisal by the prescribed deadline
according to the provisions of the Law on Investment and Decree No.
31/2021/ND-CP.
25. What are other documents included when
determining the right to use a location to carry out the investment project
according to the provisions of Point dd, Clause 1, Article 33 of the Law on
Investment?
Answer:
According to the provisions in point dd clause 1
Article 33 of the Law on Investment, an application for approval for investment
guidelines of an investment project proposed by an investor includes a copy of
the document regarding the LURs or other document identifying the right to use
the location for execution of the investment project if the project does not
require the State to allocate or lease out land or to permit land repurposing.
According to the provisions in Article 189 of the
Civil Code, right to use means the right to exploit the uses of, and to enjoy
the yield and income derived from, property; The right to use may be transferred
to another person upon an agreement or as prescribed by law. Accordingly, the
right to use the premises is specified in real estate donation contracts
(Article 459 of the Civil Code), house lease contracts, contracts for house
lease for other purposes (Article 472 of the Civil Code), contracts for
borrowing property (Article 494 of the Civil Code), contracts of LURs (Article
500 of the Civil Code), etc.
Pursuant to the regulations above, the right to use
the location will be shown on different documents according to each specific
case. Thus, it is required to base on the documents and documents prescribed by
the Civil Code to consider the investor's right to use the location.
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Answer:
According to the provisions of Clause 4, Article 29
of the Law on Investment, approval of both investment guidelines and investor
is granted in cases where the investor has land use rights. Therefore, in case
the company is an investor but does not have land use rights, there is no basis
to approve both investment guidelines and investor of the project.
27. Is the investor's ability to meet financial
conditions as prescribed in Point a, Clause 2, Article 14 of Decree No.
43/2014/ND-CP considered before land allocation or at the time of investment
guideline approval.
Answer:
The approval of investment guidelines under the
provisions of the Law on Investment and land allocation under the provisions of
the Land Law is independent procedures.
Regarding the investment guideline approval,
according to the provisions in clause 4 Article 33 of the Law on Investment,
contents of appraisal of proposal for approval for both investment guidelines
and investor include the ability to satisfy the conditions for land
allocation or land lease in the case of land allocation or land lease without
auction of the land use right or bidding for investor selection; the ability
to satisfy the conditions for land repurposing if the project involves land
repurposing.
According to the provisions in clause 8 Article 31
of Decree No. 31/2021/ND-CP, contents of appraisal of the proposal for
approval for both investment guidelines and investor include: the contents in
Clause 4 Article 33 of the Law on Investment; legal bases and conditions for
investor approval prescribed in Clause 1 Article 29 of the Law on Investment
and Article 29 of this Decree; assessment of satisfaction of conditions
in accordance with regulations of law on construction, housing, urban
development and real estate business (for projects on investment in residential
housing and urban area construction and real estate business).
Pursuant to the regulations above, the project
appraisal agency shall consider the investment project's ability to meet
the conditions for land allocation, land lease, or land repurposing at the time
of investment guideline approval. Specific conditions for persons whose land is
received from the State by allocation, lease or permission for repurposing for
carrying out investment projects are prescribed in Article 14 of Decree No.
43/2014/ND-CP.
28. The consideration of eligibility
requirements for project developers according to the provisions of the Housing
Law and Land Law during the housing project investment guideline appraisal
process is given in what manner, as investment laws and guidelines for the Law
on Bidding in terms of investor selection only specify requirements related to
the capacity and experience of investors, without addressing this content?
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Answer:
- Point c clause 8 Article 31 of Decree No.
31/2021/ND-CP provides for contents of appraisal of the proposal for approval
for both investment guidelines and investor including assessment of
satisfaction of conditions in accordance with regulations of law on
construction, housing, urban development and real estate business (for projects
on investment in residential housing and urban area construction and real
estate business).
- Point a clause 3 Article 9 of Decree No.
99/2015/ND-CP [13] provides for contents of enquiry as to appraisal of
eligibility requirements for project developers by competent regulatory
agencies.
- The form of bidding documents under Circular No.
09/2021/TT-BKHDT dated November 16, 2021 of the Ministry of Planning and
Investment providing guidance on the implementation of Decree No. 25/2020/ND-CP
dated February 28, 2020 elaborating certain Articles of the Law on Bidding in
terms of investor selection has provided guidelines for requirements prescribed
in laws on land, housing and real estate business including investor selection
criteria.
Therefore, it is required to consider the
eligibility requirements for selected investors in investment projects
according to the above regulations.
29. Clause 7 Article 29 of Decree No.
31/2021/ND-CP provides for: If at least two investors submit valid applications
for investment project execution at one location, investment registration
authority shall follow the procedures for investment guideline approval in the
form of bidding for investor selection. However, if the project is not included
in the approved list of projects subject to land expropriation according to
provisions of law on land (such as mixed residential and commercial projects),
is it added to the list of projects subject to land expropriation approved by
the provincial People's Council according to Article 62 of the Land Law 2013?
Is the land cleared by the State?
Answer:
The projects that are subject to land expropriation
for socio-economic development in the national/public interest are prescribed
in Article 62 of the Land Law. Accordingly, Article 62 does not provide for
cases of land expropriation for carrying out mixed residential and commercial
projects.
30. Article 52 of the Land Law provides for that
the basis for land repurposing is the estimated land area of the project. Thus,
the Land Law prescribes that the project must be subject to guideline approval
in advance before deciding on land repurposing. However, clause 4 Article 29 of
the Law on Investment lays down that land must be converted into homestead land
before developing guidelines. Is it contradictory to the provisions in Article
52 of the Land Law?
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Clause 4 Article 29 of the Law on Investment
provides regulations on approval of both investment guidelines and investors
without LUR auctions or bidding for investor selection in cases where the
investors have LURs (no regulations on converting land into homestead land
before investment guideline approval).
Previously, according to the provisions of Clause
1, Article 23 of the Housing Law (amended at Point c, Clause 1, Article 75 of
the Investment Law), if investors have lawful rights to use homestead land
and other types of land and are permitted by competent authorities to convert
them to homestead land, such land can also be used for execution of commercial
housing projects.”
However, this regulation has been amended in
Article 4 of Law No. 03/2022/QH15 dated January 11, 2022. Accordingly, the
requirement "other types of land must be permitted by competent
regulatory agencies to be converted to homestead land" has been
abolished. And, Article 4 of Law No. 03/2022/QH15 dated January 11, 2022
stipulates the following procedures: After the competent authority grants an
approval for both investment guidelines and the investor as per the investment
law, the investor shall apply for land repurposing if so required by the
project and fulfil the financial obligations as per the land law.
31. If land-based non-agricultural production
and business projects are not subject to land expropriation by the state (such
as gas stations, warehouses, factories, shopping centers, etc.), and the
investors have land use rights through written agreements, memorandums or
contracts for future sale or purchase between individuals holding land title
and enterprises requesting project execution, are they qualified for investment
guideline approval?
Answer:
According to the provisions of Point d, Clause 2,
Article 31 of Decree No. 31/2021/ND-CP, the investor must submit a valid copy
of the competent People’s Committee’s written approval for receipt of LURs by
conveyance, capital contribution or lease for project execution and valid
copies of other documents containing agreement on use of location for project
execution in the case of proposal for approval for both investment guidelines
and investor with regard to the investor receiving LURs of agricultural land by
conveyance, capital contribution or lease for execution of the project on
non-agricultural production or business as prescribed in Point b Clause 4
Article 29 of the Law on Investment.
32. The approval for investment guidelines of a
housing development and business project that is not included in housing
development programs, plans, or urban development programs of a province is
difficult because the Provincial People's Committee must develop a housing
development program of the province (including both urban and rural areas) for
each period of 5 years and 10 years or longer and submit it to the People's
Council at the same level for adoption before approval according to the
provisions in Article 169 of the Housing Law.
Answer:
According to the provisions of point e, clause 3,
Article 33 of the Law on Investment, the content of appraisal of proposal for
investment guideline approval includes assessment of the investment project’s
conformity with the objectives and orientation of urban development, housing
development programs and plans, etc.
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33. The procedures for approving investment
guidelines of urban area projects and urban beautification projects that are
subject to land expropriation according to Article 62 of the Land Law, but are
not yet included in the list of land expropriation will be followed in the
local context, does the Provincial People's Council only adopt the list of land
expropriation for projects whose investment guidelines have been approved?
Answer:
Clause 3 Article 45 of the Land Law provides for “The
Provincial-level People’s Committees shall submit the lists of projects subject
to land expropriation specified in Clause 3, Article 62 of this Law to the
People’s Councils at the same level for adoption, before approving the
district-level annual land use plans”.
Previously, according to the provisions in clause 6
Article 56 of Circular No. 29/2014/TT-BTNMT dated June 2, 2014 providing
detailed regulations on establishment and adjustment of land use planning and
plans, one of the district-level annual land use planning tasks was to
determine the scale and location of construction works, projects, etc. using
land for the purposes specified in Articles 61 and 62 of the Land Law to serve
land expropriation. For projects not funded by the state budget, written
investment guideline approvals from competent regulatory agencies are
required.
However, this regulation has been amended in Clause
6, Article 46 of Circular No. 01/2021/TT-BTNMT dated April 12, 2021 of the
Ministry of Natural Resources and Environment providing technical regulations
on development and adjustment of land use planning and plans (replacing
Circular No. 29/2014/TT-BTNMT). Accordingly, it is required to have written
investment guideline approvals for projects that are not funded by the
state budget are required has been abolished.
Thus, land laws do not require that the lists of
projects subject to land expropriation must be adopted after the projects’
investment guidelines have been approved.
34. What are the documents proving that the land
has been (or has not been) cleared (if any), documents proving that the project
is not included in the list of projects subject to land expropriation adopted
by the provincial People's Council?
Answer:
According to the provisions in Clause 3 Article 45
of the Land Law, “The Provincial-level People’s Committees shall submit the
lists of projects subject to land expropriation specified in Clause 3, Article
62 of this Law to the People’s Councils at the same level for adoption, before
approving the district-level annual land use plans”;
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It is required to base on the list of projects
subject to land expropriation according to the above regulations to identify
projects that are not on the list of projects subject to land expropriation.
35. What are the procedures for approving
investment guidelines of production and business projects whose land is
directly leased from the State in industrial parks?
Answer:
According to the provisions in clause 2 Article 32
of the Law on Investment, the investment guidelines of the investment projects
in Points a, b and d Clause 1 of this Article executed in industrial parks,
export-processing zones, hi-tech zones and economic zones in conformity with
planning approved by competent authorities shall be approved by management
boards of such industrial parks, export-processing zones, hi-tech zones and
economic zones.
Thus, in case of direct lease of land from the
State for execution of investment projects in industrial parks, it is required
to consider executing in accordance with the above regulations.
36. What are procedures for execution of
projects subject to land allocation, land lease or permission for land
repurposing of households and individuals that are not subject to written
approval by the provincial People's Committees according to the provisions in
Point a, Clause 1, Article 32 of the Law on Investment? In case a business
household leases land for production investment (excluding the area of the
land) or trade in services (with an area of less than 0.5 hectares), is it
required to develop investment guidelines or only follow land procedures?
Answer:
According to the provisions in point a clause 1
Article 32 of the Law on Investment, the provincial People’s Committees shall
grant approval for investment guidelines of investment projects with proposal
for land allocation or lease by the State without auction or bidding or receipt
of LURs by transfer and investment projects with proposal for land repurposing,
except for projects with proposal for land allocation, land lease and
permission for land repurposing of households and individuals that are not
subject to written approval by the provincial People's Committees
According to the provisions in point a clause 2
Article 59 of the Land Law, it is required to have written approvals by the
provincial People’s Committees before deciding to lease out land or grant
permission to convert agricultural land into commercial land with the area of
0,5 ha or more to individuals and households.
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37. Is the appraisal of estimated land area in
the period of investment guideline approval made by the Departments of Natural
Resources and Environment?
Answer:
- According to the provisions in clauses 3 and 4
Article 33 of the Law on Investment, the content of appraisal of the investment
guideline approval, including the assessment of estimated land area and ability
to satisfy the conditions for land allocation or land lease in the case of land
allocation or land lease without LUR auction or bidding for investor selection;
the ability to satisfy the conditions for land repurposing if the project
involves land repurposing, is one of the contents of appraisal when approving
investment guidelines.
According to the provisions in clause 2 Article 36
of the Law on Investment, the investment registration authority shall send
relevant documents to relevant regulatory agencies to seek their opinions about
the contents specified in Article 33 of this Law.
Thus, the Departments of Natural Resources and
Environment shall appraise the above contents within their jurisdiction when
being enquired about the appraisal of investment guidelines.
38. The provincial People's Councils have
authority to decide forest repurposing guidelines, while the provincial
People’s Committees have authority to approve investment guidelines according
to the provisions of the Investment Law. Is the authority to approve investment
guidelines contradictory to the authority to approve forest repurposing?
Answer:
Procedures for approving investment guidelines and
procedures for approving forest repurposing are independent procedures, with
different content, requirements, order, authority and state management
objectives. Thus, the authority to decide forest repurposing guidelines under
the provisions of the Law on Forestry and Decree No. 83/2020/ND-CP does not
contradict the authority to approve investment guidelines under the Law on
Investment.
39. What are documents proving financial
capacity of investors that are newly formed organizations? How to make sure the
time of project proposal does not coincide with the financial reporting period?
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Point c clause 1 Article 33 of the Law on
Investment provides for: “Document(s) proving the financial capacity of an
investor including at least one of the following documents: the investor’s
financial statements for the last two years; commitment of a parent company to
provide financial support; commitment of a financial institution to provide
financial support; guarantee for the investor’s financial capacity; other
document proving the investor’s financial capacity”.
Thus, the investor that is a newly formed
organization may submit documents proving its financial capacity such as
commitment of a parent company to provide financial support; commitment of a
financial institution to provide financial support; guarantee for the
investor’s financial capacity; other document proving the investor’s financial
capacity.
40. For investment projects with a large total
investment capital, there is no requirement that the investor's financial
statements must be independently audited, causing difficulties in verifying the
authenticity of the investor's financial statements.
According to point c clause 1 Article 33 of the Law
on Investment, an application for approval for investment guidelines of an
investment project proposed by an investor includes document(s) proving the
financial capacity of the investor (including at least one of the following
documents: the investor’s financial statements for the last two years;
commitment of a parent company to provide financial support; commitment of a
financial institution to provide financial support; guarantee for the
investor’s financial capacity; other document proving the investor’s financial
capacity).
Point a clause 1 Article 6 of Decree No.
31/2021/ND-CP provided for: “Every investor shall take legal responsibility
for the legitimacy, accuracy and truthfulness of their application and
documents submitted to competent authorities”.
The independent audit of financial statements shall
comply with the provisions of law on accounting and auditing.
Thus, it is required to consider the investor’s
financial statements according the regulations above and provisions of law on
accounting and auditing.
In addition, in cases where it is necessary to
determine the basis for tax calculation, the competent regulatory authority may
require independent assessment of the value of the investment capital in
accordance with the provisions of Article 45 of the Law on Investment and
Article 28 of Decree No. 31/2021/ND-CP.
41. What are other documents proving financial
capacity of an investor under the provisions of point c clause 1 Article 33 of
the Law on Investment of 2020?
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The documents proving financial capacity are
specified in point c clause 1 Article 33 of the Law on Investment. An investment
registration authority is required to, based on the actual documents of an
investment project, determine other valuable documents proving the investor's
financial capacity to carry out such investment project in addition to
documents such as the investor’s financial statements for the last two
years; commitment of a parent company to provide financial support; commitment
of a financial institution to provide financial support; guarantee for the
investor’s financial capacity.
42. The Law on Construction, the Law on Real
Estate Business, the Law on Bidding, and the Law on Urban Planning 2009 all
stipulate that the project developer is the subject directly carrying out a
project. However, Decree No. 31/2021/ND-CP, Circular No. 03/2021/TT-BKHDT and
Decree No. 25/2021/ND-CP do not provide regulations on project developers. How
are the rights, obligations and responsibilities of a project developer during
the project execution (after the investor is selected) determined?
Answer:
Article 7 of the Law on Construction (amended in
Clause 4, Article 1 of Law No. 62/2020/QH14) elaborates the determination of
project developers for projects funded by public investment, projects funded by
non-public state investment, PPP projects and projects funded by other sources.
Accordingly, the project developer of a project, which is funded by lawful
investment sources of organizations and individuals, (project funded by other
sources), for which the law on investment requires selection of investor for
project execution, is an investor approved by a competent regulatory authority.
Where multiple investors involve in the project, they may establish an
organization or authorize a qualified investor to act as the project developer.
If relevant laws stipulate the selection and certification of project
developer, such selection and certification of project developer must meet
relevant conditions and comply with relevant laws.
According to the provisions of Point d, Clause 3,
Article 4 of the Law on Investment, execution of construction, housing and
urban area projects is in compliance with the Law on Construction, Law on
Housing and Law on Real Estate Business after a competent authority grants
approval for the investment guidelines or adjustment to the investment
guidelines in accordance with regulations of the Law on Investment.
Clause 3 Article 42 of the Law on Investment
provides for: Investors shall comply with the provisions of this Law and the
laws on planning, land, environment, construction, labor and fire prevention
and fighting, other relevant laws, written approval for investment guidelines
(if any) and the investment registration certificate (if any) during execution
of their investment projects.
Thus, it is required to exercise the rights,
obligations and responsibilities of a project developer during the project
execution after the investor is approved by a competent regulatory agency
according to investment laws in a manner that complies with the above
regulations.
43. Clause 1 Article 11 and Article 12 of Decree
No. 25/2020/ND-CP of the Government [14] provide for requirements for
determination of a land-based project “the project must be on the list of
projects subject to land expropriation that are approved according to the
provisions of law on land”. And, the determination of a land-based project
subject to investor selection may be based on the zoning planning of 1/2000,
1/5000.
However, Land Law does not specify requirements,
legal basis, documentation and procedures for approval for the list of projects
requiring land expropriation by the People's Councils of provinces. Therefore,
projects that are proposed on the basis of the zoning planning of 1/2000 and
1/5000 will run into difficulties during consolidation and submission for
approval by the People's Councils of provinces (the basis for consolidation,
the time of consolidation, the basis for determining parameters of projects
requiring land expropriation, etc.), and will not meet requirements for
determination of land-based projects to decide on investment guidelines.
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According to the provisions of Article 11 of Decree
No. 25/2020/ND-CP [15], two of the requirements for determining a land-based
investment project as the basis for investor selection include: the project is
on the list of projects subject to land expropriation that are approved
according to provisions of law on land or located in a land area under
management of the State; and the project is appropriate for the socio-economic
development plan, or the construction planning has a ratio of 1/2.000 or 1/500
(if any), etc.
According to the provisions in Clause 3 Article 45
of the Land Law, for projects falling under the cases prescribed in clause 3
Article 62 of the Land Law, the Provincial-level People’s Committees shall
submit the lists of projects subject to land expropriation to the People’s
Councils at the same level for adoption, before approving the district-level
annual land use plans. The formulation of district-level annual land use plans
has been specifically guided in Circular 01/2021/TT-BTNMT. A district-level
annual land use plan shall show the scale and location of land-based works and
projects according to the provisions of Article 61 and Article 62 of the Land
Law to serve the land expropriation in the plan year.
The conformity with construction planning with a
scale of 1/2.000 or a scale of 1/500 (if any) as prescribed by the above
regulations shall be required when making a list of land-based investment
projects, and not be required when making a list of projects subject to land
expropriation.
44. What are the procedures for investment and
selection of investors in tourism projects combined with real estate business
(villas, apartments for sale or rent for residential purposes, long-term land
use) or tourism projects that have been granted investment approval and are
proposed for repurposing or have various purposes subject to different land use
periods (50 years or long-term use)?
Answer:
- According to the provisions in clause 1 Article
29 of Decree No. 31/2021/ND-CP, if an investment project has objectives and
contents subject to approval for its investment guidelines by different
investment guideline approving authorities, the highest authorized authority
shall grant approval for investment guidelines of the entire project.
- According to the provisions in clause 1 Article
11 of Decree No. 25/2020/ND-CP, [16] if a project has multiple functions, the
determination of a land-based investment project shall be based on the primary
work of the project or primary work with the highest class in case the project
consists of multiples primary works under provisions of law on construction.
It is required to base on the above regulations to
determine appropriate investment procedures for each specific case.
45. How are projects of secondary investors in
industrial clusters managed if these projects are not subject to the issuance
of investment registration certificates as prescribed in Clauses 2 and 2?
Clause 4, Article 37 of the Law on Investment?
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According to the provisions of clause 3 Article 42
of the Law on Investment, investors shall comply with the provisions of this
Law and the laws on planning, land, environment, construction, labor and fire
prevention and fighting, other relevant laws, written approval for investment
guidelines (if any) and the investment registration certificate (if any) during
execution of their investment projects.
Thus, it is required to manage projects of
secondary investors in industrial clusters not subject to issuance of
investment registration certificates according to the regulations above.
II. Contents related
to execution of investment projects
46. Can a successful bidder (selected investor)
as prescribed in Decree No. 25/2020/ND-CP receive land without LUR auction?
Answer:
According to the provisions of clause 2 Article 60
of Decree No. 25/2020/ND-CP [17], after the compensation, support and
resettlement amount has been paid, the procedures for land allocation/land
lease specified in Clause 3 Article 68 of the Government’s Decree No.
43/2014/ND-CP dated May 15, 2014 elaborating certain articles of the Land Law
shall apply when allocating or leasing out land to successful bidders or
enterprises established by successful bidders.
According to the provisions of point b clause 4
Article 29 of Decree No. 31/2021/ND-CP, the successful bidder (The investor
that wins the auction or bid) shall follow procedures for land allocation or
land lease in accordance with provisions of law on land and bidding, and
execute the investment project according to the decision on approval for
investment guidelines, decision on approval for auction results or decision on
approval for investor selection results.
Thus, successful bidders may receive land in
accordance with the above regulations.
47. Can an investor that has been granted
investment guideline approval establish a wholly-owned subsidiary to execute
and manage a project?
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Article 52 of Decree No. 31/2021/ND-CP provides for
the adjustment to investment projects in case of using LURs and/or property
affixed to land belonging to the investment projects for capital contribution
to enterprises. According to the provisions of clause 7 of this Article, if a
business organization is established to execute the investment project that has
had its investment guidelines approved or has been issued with the investment
registration certificate, the investor and business organization shall satisfy
the conditions set out in Clause 2 of this Article. The business organization
established by the investor is entitled to inherit the investor’s rights and
obligations to execute the investment project. The investor establishing the
business organization shall follow the procedures for project adjustment in
accordance with the corresponding regulations prescribed in Clause 5 or 6 of
this Article.
48. Requiring investors to complete the
acceptance of construction works to have their deposit returned according to
the provisions of Point b, Clause 9, Article 26 of Decree No. 31/2021/ND-CP
causes difficulties for investors because the acceptance of construction works
requires a lot of costs, cumbersome procedures and takes a lot of time
according to construction regulations?
Answer:
According to the provisions in point b clause 9
Article 26 of Decree No. 31/2021/ND-CP, the refund and adjustment of a
guarantee amount, and termination of the guarantee obligation shall be carried
out in a manner that the remaining deposit and interest (if any) arising from
the deposit shall be refunded or the guarantee for deposit payment obligation
shall be invalidated at the time when the investor accepts the construction
works.
The requirement to complete the acceptance of
construction works as a basis for refunding the deposit according to the above
regulations is necessary to ensure that the investment project is executed on
schedule committed by the investor.
49. What is the deposit period in case of
increasing capital? and what to do when the investor fails to make payment or
delays paying additional deposit in case of increasing the investment capital
of the project requiring deposit according to the provisions of the Law on
Investment and Decree No. 31/2021/ND-CP dated March 26, 2021?
Answer:
- According to the provisions of clause 5 Article
26 of Decree No. 31/2021/ND-CP, time and duration of guaranteeing project
execution shall be as follows:
a) The investor shall pay the deposit or submit
the credit institution’s guarantee certificate after being issued with the
decision on approval for both investment guidelines and investor or decision on
investor approval or decision on approval for bidding result and prior to
implementing the compensation, support and resettlement plan approved by a
competent authority (if the investor does not advance the payment for
compensation, support and resettlement) or by the time of issuing the decision
on land allocation or land lease or land repurposing (if the investor does not
advance compensation, assistance or relocation payments or the investor is
selected to execute the project through a land use right auction and is leased
out land by the State and pays land rents on an annual basis);
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According to the provisions in point e clause 9
Article 26 of Decree No. 31/2021/ND-CP, regarding a domestic investor that
has their investment guidelines approved and is not required to obtain the
investment registration certificate, when the project not subject to adjustment
of its investment guidelines is adjusted as prescribed in this Decree and the
adjustments change any content of the project execution guarantee agreement,
the investor shall send a written notification to the investment registration
authority prior to the adjustment. The investment registration authority and
investor shall adjust the project execution guarantee agreement in conformity
with the adjustments to the investment project.
Pursuant to the regulations above, if the project
is subject to investment guideline approval, the deposit shall be paid after a
decision to adjust investment guidelines is issued according to the provisions
in clause 5 Article 26 of Decree No. 31/2021/ND-CP. If the project is not
subject to investment guideline adjustment, the deposit shall be paid according
to the agreement principles specified in point e, clause 9, Article 26 of
Decree No. 31/2021/ND-CP.
- Article 19 of Decree No. 122/2021/ND-CP dated
December 28, 2021 of the Government on penalties for administrative violations
against regulations on planning and investment provided for violations against
regulations on investment project execution in Vietnam, including failure to
pay a deposit or obtain a bank guarantee for deposit payment obligation for
execution of an investment project with proposal for land allocation or lease
by the State or grant of permission for land repurposing unless otherwise
prescribed by law; failure to follow procedures for guaranteeing of execution
of an investment project on prescribed schedule; increasing the investment
capital of a project without paying an additional amount of deposit or credit
institution’s deposit payment guarantee when requested in writing by the
investment authority; making an unlawful, untruthful, inaccurate application
for reduction in the costs of guarantee for project execution.
In addition, according to the provisions in point
dd clause 2 Article 48 of the Law on Investment, the investment registration
authority shall terminate an investment project in part or in full in the case
where the investor fails to pay the deposit or obtain a bank guarantee as
prescribed by law if project execution security is required.
Therefore, it is required to consider applying this
regulations for cases where investors fail to make payment or delay payment of
additional deposit when increasing investment capital of projects.
50. If a project has an investor who meets the
capacity and experience requirements and is approved, is the investor exempt
from depositing according to point b, clause 1, Article 43?
Answer:
According to the provisions in point b clause 1
Article 43 of the Law on Investment, the investor who wins bidding for
execution of a land-based investment project shall not be required to pay a
deposit or have a bank guarantee for execution of the investment project with
proposal for land allocation or land lease by the State.
According to the provisions in Article 13 of Decree
No. 25/2020/ND-CP [18], the preliminary evaluation of the capacity and
experience of investors applying for project execution for determining the
number of investors that are qualified in terms of the capacity and experience
shall be a basis for following procedures for investor approval or making
competitive bidding for investor selection.
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51. Are projects that are permitted by the State
for land repurposing serving the execution of investment projects on the basis
of receiving land use rights and property affixed to land by conveyance from
other users and projects whose land is leased on the basis of receiving agricultural
land by conveyance (without approved site clearance plans) to serve the
execution of non-agricultural projects exempt from depositing as prescribed in
point d, clause 1 of Article 43? In case a deposit is required, can point a or
b, Clause 7, Article 26 of Decree No. 31/2021/ND-CP be applied? When a project
is behind schedule but its schedule has been extended by a competent authority,
is it required to pay a deposit as prescribed in point c, clause 7, Article 26
of Decree No. 31/ 2021/ND-CP?
Answer:
According to the provisions in point d clause 1
Article 43 of the Law on Investment, the investor shall pay a deposit or have a
bank guarantee for execution of an investment project with proposal for land
allocation, land lease or grant of permission for land repurposing by
the State, except for the case where the State allocates or leases out land to
the investor for execution of an investment project on the basis of receipt of
the land use rights and/or property affixed to land by conveyance from another
land user.
Pursuant to the regulations above, the deposit is
not exempt in case of land repurposing for execution of an investment project.
Thus, the case of receiving LURs of agricultural land by conveyance to execute
a non-agricultural production and business project is not subject to deposit
exemption as prescribed in Point d, Clause 1, Article 43 of the Law on
Investment because this project involves land repurposing.
Deposit payment as specified in Point a or b,
Clause 7, Article 26 of Decree No. 31/2021/ND-CP applies in cases where the
investor advances compensation, support or resettlement payments to a competent
authority to implement the approved compensation, support or resettlement
arrangement (except for cases where compensation, support or resettlement
arrangements are not approved).
52. Company A has investment guidelines of its
plastic factory project in an area of agricultural land approved. The current
land user is individual B. Individual C is a member of Company A and has
received land use rights by conveyance from B and has contributed capital with
land use rights to Company A to execute the project. In this case, Company A
does not receive the land use rights and/or property affixed to land by
conveyance from other land users, but only members of Company A receive land
use rights and/or property affixed to land by conveyance from other land users
and contribute capital to Company A. In this case, does Company A have to pay a
deposit or obtain a bank guarantee for deposit payment obligation?
Answer:
According to the provisions in point c clause 1
Article 43 of the Law on Investment, the investor shall pay a deposit or have a
bank guarantee for execution of an investment project with proposal for land
allocation, land lease or grant of permission for land repurposing by the
State, except for the case where the State allocates or leases out land to the
investor for execution of an investment project on the basis of receipt of the
land use rights and/or property affixed to land by conveyance from another land
user.
Thus, the deposit exemption as prescribed by the
above regulations does not apply in cases of land repurposing when executing
investment projects.
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53. Who has the authority to implement contents
related to the obligation to guarantee project execution between the Provincial
People's Committee and the investment registration authority related to the
time of guaranteeing investment project execution; how to refund deposits or
transfer deposits to the state budget?
Answer:
- The authority to pay a deposit has been
prescribed in Articles 25 and 26 of Decree No. 31/2021/ND-CP. Accordingly, an
investment registration authority is a regulatory agency having authority to
make a deposit agreement with an investor. The Law on Investment and Decree No.
31/2021/ND-CP do not provide specific regulations on the authority to implement
contents related to the obligation to guarantee project execution between the
Provincial People's Committee and the investment registration authority.
Responsibility for state management of investment shall comply with the
provisions of Clause 4, Article 69, and Article 70 of the Law on Investment and
Clause 3, Article 98 of Decree No. 31/2021/ND-CP.
- The refund of deposits and transfer of deposits
to the state budget has been specifically stipulated in Clauses 9 and 10,
Article 26 of Decree No. 31/2021/ND-CP.
54. According to Clause 4, Article 77 of the Law
on Investment of 2020, if the investor adjusts the objectives or schedule for
execution of an investment project or repurposes land after the effective date
of this Law, the investor must pay a deposit or obtain a bank guarantee for
deposit payment obligation in accordance with this Law. Is this deposit paid
before or after approving the adjustment of investment guidelines?
Answer:
According to the provisions in point a clause 5
Article 26 of Decree No. 31/2021/ND-CP, the investor shall pay the deposit or
submit the credit institution’s certificate of guarantee for deposit payment
obligation after being issued with the decision on approval for both investment
guidelines and investor or decision on investor approval, etc.
According to the provisions in point d clause 9
Article 26 of Decree No. 31/2021/ND-CP, where the project's investment capital is
increased, the investor shall pay an additional amount of deposit or credit
institution’s deposit payment guarantee corresponding to the increased
investment capital according to the decision on approval for adjustment of the
investment guidelines, etc.
Pursuant to the above regulations, the deposit
payment or submission of a credit institution’s certificate of guarantee for
deposit payment obligation shall be made after the project is granted
investment guideline approval or investment guideline adjustment approval.
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Answer:
According to the provisions in point a clause 5
Article 26 of Decree No. 31/2021/ND-CP, the investor shall pay the deposit
or submit the credit institution’s guarantee certificate after being issued
with the decision on approval for both investment guidelines and investor or
decision on investor approval or decision on approval for bidding result and
prior to implementing the compensation, support and resettlement plan approved
by a competent authority (if the investor does not advance the payment for
compensation, support and resettlement) or by the time of issuing the decision
on land allocation or land lease or land repurposing (if the investor does not
advance compensation, support and resettlement payments or the investor is
selected to execute the project through a land use right auction and is leased
out land by the State and pays land rents on an annual basis).
Therefore, Article 26 of Decree No. 31/2021/ND-CP
does not provide for time limit for paying deposit on the project completion
after the investor is granted investment guideline approval but only the
fulfilment of this obligation before organizing making of compensation, support
and resettlement arrangement that has been approved by a competent authority or
before issuing the decision to allocate, lease out land or grant permission for
land repurposing. According to the provisions in clause 3 Article 42 of the Law
on Investment, the investor shall comply with regulations of the written
approval for investment guidelines and the investment registration certificate
during execution of an investment project, including regulations and
commitments on the schedule for execution of the investment project (capital
contribution and capital raising schedule; schedule of achievement of primary
operational objectives of the investment project, schedule for infrastructural development
and inauguration; schedule of each stage (if the project is divided into
multiple stages) specified in Clause 8, Article 40 of the Law on Investment,
Clause 7, Article 32 Decree No. 31/2021/ND-CP.
Thus, it is required to follow procedures for paying
deposit on the project completion.
56. How long is the deposit payment deferral as
prescribed in point a clause 7 Article 26 of Decree No. 31/2021/ND-CP? If an
investor is not required to immediately pay a deposit or submit a certificate
of guarantee, when will the investor have to pay/submit it and is the
investment registration authority required to sign an agreement with the
investor, or is it not necessary for the investor to pay a deposit?
Answer:
According to the provisions in point a clause 7 Article
26 of Decree No. 31/2021/ND-CP, if the advanced amount is equal to or greater
than the guarantee rate prescribed in Clause 2 of this Article, the investor is
not required to immediately pay the deposit amount or submit the credit
institution’s guarantee certificate at the time specified in Point a Clause 5
of this Article.
Point c clause 7 Article 26 of Decree No.
31/2021/ND-CP provides for: “The investor with the deposit amount paid or
credit institution's guarantee certificate submitted in the cases mentioned in
Points a and b of this Clause must pay a deposit to the investment registration
authority in accordance with this Article when the project is behind schedule
according to the decision on approval for investment guidelines, decision on
approval for both investment guidelines and investor or investment registration
certificate”.
Pursuant to the above regulations, the investor is
not required to immediately pay the deposit in the case specified in point a
clause 7 Article 26 of Decree No. 31/2021/ND-CP. In case where the project is
behind schedule according to the decision on approval for investment
guidelines, decision on approval for both investment guidelines and investor or
investment registration certificate, the investor is required to pay the
deposit amount (cannot choose to provide with a guarantee for deposit
obligation) to the investment registration authority in accordance with point c
clause 7 Article 26 of Decree No. 31/2021/ND-CP.
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57. Clause 1 Article 43 of the Law on Investment
provides for “The investor is not required to pay a deposit or get a
guarantee for deposit payment obligation.
Clause 5 Article 26 of Decree No. 31/2021/ND-CP
stipulates that the investor is required to pay the deposit or submit
the credit institution’s certificate of guarantee for deposit payment
obligation after being issued with the decision on approval for bidding result.
Thus, there is a contradiction between the above
regulations.
Answer:
Point a clause 1 Article 43 of the Law on
Investment provides for that the investor is not required to pay a deposit or
get a bank guarantee for deposit payment obligation in the case where the
investor is the successful bidder for the right to use a land area that is
allocated by the State with land levy payment or leased out by the State under one-off
arrangement.
Therefore, the selected investor (the successful
bidder of an auction of LUR of a land area for execution of an investment
project that is leased out by the State with annual land rent payment)
is still subject to payment of deposit on the project completion. Clause 5
Article 26 of Decree No. 31/2021/ND-CP stipulating that the investor must pay
the deposit or submit the credit institution’s certificate of guarantee for
deposit payment obligation after being issued with the decision on approval for
bidding result is consistent with the provisions of Clause 1, Article 43 of the
Law on Investment mentioned above.
58. How is the form of guarantee for project
execution changed to apply the guarantee for deposit payment obligation in case
where the investor has fulfilled their financial obligation or deposit payment
obligation before the effective date of Decree No. 31/2021/ND-CP?
Answer:
The change of the form of guarantee for project execution
to apply the guarantee for deposit payment obligation in case where the
investor has fulfilled their financial obligation or deposit payment obligation
before the effective date of Decree No. 31/2021/ND-CP shall comply with the
provisions in clause 2 and 3 Article 123 of Decree No. 31/2021/ND-CP.
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Only the obligations to be fulfilled after the
effective date of this Decree may be adjusted under the deposit agreement as
specified in Clause 2 of this Article. If the investor violates the obligation
to execute the project, such investor is not allowed to make a request for
change of the form of guarantee for project execution or adjustment of the
conditions for refund of deposit amount until the violation is dealt with. The
deposit amount refunded or not refunded before the date of adjusting the
deposit agreement may be adjusted under the deposit agreement as specified in
this Clause.
59. In case the project runs behind schedule for
no more than 12 months compared to the schedule specified in the first written
approval for investment guidelines, can the investor get their deposit refunded?
Answer:
For investment projects that are executed from the
effective date of the Law on Investment of 2020, the deposit refund and deposit
payment to the state budget shall comply with the provisions in clauses 9 and
10 Article 26 of Decree No. 31/2021/ND-CP. Accordingly, for a project subject
to issuance of an investment registration certificate, the guarantee amount
that is yet to be refunded shall be paid to the state budget as prescribed by
law in cases where the project is not put into operation on the schedule
specified in the investment registration certificate without the competent
authority’s permission for adjusting the schedule as prescribed in the Law on
Investment and this Decree;
In addition, according to the provisions in point e
clause 9 Article 26 of Decree No. 31/2021/ND-CP, if a project whose investment
guidelines have been approved is not subject to issuance of investment
registration certificate, when the project not subject to adjustment of its
investment guidelines is adjusted as prescribed in this Decree and the
adjustments change any content of the project execution guarantee agreement,
the investor shall send a written notification to the investment registration
authority prior to the adjustment. The investment registration authority and
investor shall adjust the project execution guarantee agreement in conformity
with the adjustments to the investment project. In this case, the deposit
refund shall comply with the adjusted project execution guarantee agreement.
For investment projects that are executed before
the effective date of the Law on Investment of 2020, the deposit refund shall
comply with the transitional provisions in Article 123 of Decree No.
31/2021/ND-CP.
60. Is it reasonable to assign the Department of
Planning and Investment to receive and process applications for adjustment of
investment projects that have been approved under Decree No. 11/2013/ND-CP
according to the provisions of Clause 3, Article 117 of Decree No.
31/2021/ND-CP (previously, applications for investment approval for these
projects were received and processed by the Department of Construction)?
Answer:
Currently, the procedures for approving investment
guidelines and adjusting investment projects for housing projects and urban
areas have been agreed to be implemented according to the provisions of the Law
on Investment of 2020 (Point d, Clause 2, Article 4, Point g Clause 1 Article
31, Point b Clause 1 Article 32, Clauses 2 and 6 Article 41 of the Law on
Investment). Thus, the assignment of the Department of Planning and Investment
to receive and process applications for adjustment of investment projects that
have been approved as prescribed in Decree No. 11/2013/ND-CP is consistent with
regulations of law and aims to unify the procedures for investment.
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Answer:
Clause 3 Article 117 of Decree No. 31/2021/ND-CP
provides for procedures for adjustment to investment guidelines of projects
whose guidelines have been approved before the effective date of the Law on
Investment of 2020 and adjustments to projects falling under the cases of
adjustment specified in clause 3 Article 41 of the Law on Investment.
According to the provisions of clause 5 Article 117
of Decree No. 31/2021/ND-CP, if adjustments to an investment project not
falling under the cases specified in Clause 1 or 3 of this Article change any
content of the investment license, certificate of investment incentives,
investment certificate, investment registration certificate or another
equivalent document issued before the effective date of the Law on Investment,
the investor shall follow procedures corresponding to the procedures for
adjusting the investment registration certificate as prescribed in Article 47
of this Decree at an investment registration authority to obtain the investment
registration certificate. The investment registration certificate shall specify
contents of the adjusted investment project and all unchanged and effective
contents of the investment project on the investment license, investment
certificate, certificate of investment incentives, investment registration
certificate or another equivalent document.
Thus, adjustments to a project whose investment
guidelines have been approved before the effective date of the Law on
Investment of 2020 which are not the adjustments specified in clause 3 Article
41 of the Law on Investment and clause 1 Article 117 of Decree No.
31/2021/ND-CP are made in compliance with the provisions of clause 5 Article
117 of this Decree.
62. How is the authority and procedure for
adjusting the project in Clause 1, Article 117 of Decree No. 31/2021/ND-CP when
adjusting the contents in Clause 3, Article 41 of the Investment Law?
Answer:
The adjustment to the project in clause 1 Article
117 of Decree No. 31/2021/ND-CP shall be made in compliance with the procedures
in clause 2 Article 117 of this Decree. Accordingly, in case of adjustment to
the contents specified in points a, b and c clause 1 of this Article, the
investor shall follow procedures for investment guideline approval according to
the corresponding provisions in Section 2 Chapter IV of this Decree before
adjusting the investment project. In this case, the regulatory authority having
authority to approve investment guidelines shall consider the adjustments for
approving investment guidelines.
If adjustments to an investment project not falling
under the cases specified in Clauses 1 and 3 of this Article change any content
of the investment license, certificate of investment incentives, investment
certificate, investment registration certificate or another equivalent document
issued before the effective date of the Law on Investment, the investor shall
follow procedures corresponding to the procedures for adjusting the investment
registration certificate as prescribed in Article 47 of this Decree at an
investment registration authority to obtain the investment registration
certificate (clause 5 Article 117 of Decree No. 31/2021/ND-CP).
63. What are procedures for adjusting a project
that is executed before the effective date of the Law on Investment?
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The adjustment to an investment project that is
executed before the effective date of the Law on Investment shall be made in
accordance with the transitional provisions in Article 77 of the Law on
Investment and Article 117 of Decree No. 31/2021/ND-CP.
According to the provisions in clause 3 Article 77
of the Law on Investment, if an investment project specified in Clause 2 of
this Article is adjusted and the adjustments are subject to approval for
investment guidelines in accordance with this Law, it is required to follow the
procedures for investment guideline approval or investment guideline adjustment
as prescribed in this Law.
Clause 1 and clause 2 Article 117 of Decree No.
31/2021/ND-CP provides for procedures for adjustment to the investment projects
specified in points b, c and d clause 2 Article 77 of the Law on Investment.
Clause 3 Article 117 of Decree No. 31/2021/ND-CP
provides for procedures for adjustment to the investment project specified in
point a clause 2 Article 77 of the Law on Investment and adjustments falling
under one of the cases specified in points a, b, c, d, dd, e and g clause 3
Article 41 of the Law on Investment.
According to Point a clause 3 Article 117 of Decree
No. 31/2021/ND-CP, an investment guideline approving authority as prescribed by
the Law on Investment means an authority that has the power to adjust the
written decision on investment guidelines, written approval for investment
guidelines or written approval for investment of such investment project,
except for the cases in Points b and c of this Clause.
Clause 5 Article 117 of Decree No. 31/2021/ND-CP
provides for: “If adjustments to an investment project not falling under the
cases specified in Clauses 1 and 3 of this Article change any content of the
investment license, certificate of investment incentives, investment
certificate, investment registration certificate or another equivalent document
issued before the effective date of the Law on Investment, the investor shall
follow procedures corresponding to the procedures for adjusting the investment
registration certificate as prescribed in Article 47 of this Decree at an
investment registration authority to obtain the investment registration
certificate. The investment registration certificate shall specify contents of
the adjusted investment project and all unchanged and effective contents of the
investment project on the investment license, investment certificate,
certificate of investment incentives, investment registration certificate or
another equivalent document”.
Thus, it is required to consider adjusting
guidelines of investment projects that are executed before the effective date
of the Law on Investment according to the above regulations.
64. Projects with capital of over 5000 billion
whose investment guidelines have been approved by the Prime Minister are
currently subject to adjustment to investment guideline approval by the
Provincial People's Committees according to the provisions of Article 117
Decree No. 31/2021/ND-CP. However, unlike the Ministry of Planning and
Investment, Departments of Planning and Investment do not have enough
information about the projects to process applications for appraisal. How will
the Departments of Planning and Investment follow procedures for adjustment to
projects?
Answer:
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Accordingly, the procedures for adjustment to
investment guidelines shall comply with the corresponding provisions in Section
4 Chapter IV of this Decree. Article 45 of Decree No. 31/2021/ND-CP has
stipulated procedures for adjustment to investment projects subject to
investment guideline approval by the provincial People’s Committees, including
collecting opinions from competent regulatory authorities about the
adjustments.
Thus, when following procedures for adjustment to
investment guidelines of a project with total investment capital of over 5.000
billion VND, whose investment guidelines have been decided by the Prime
Minister, currently subject to adjustment to investment guideline approval by
the Provincial People’s Committee, if necessary, the investment registration
authority may collect opinions from relevant agencies (including relevant
Ministries and central authorities) about the adjustments.
65. How are procedures for adjustment to a golf
course project that has been approved by the Prime Minister before the
effective date of the Law on Investment followed?
Answer:
The adjustment to an investment project that is
executed before the effective date of the Law on Investment shall be made in
accordance with the transitional provisions in Article 77 of the Law on
Investment and Article 117 of Decree No. 31/2021/ND-CP (see the answer for
question 63).
According to the provisions in point a and point d
Clause 3 Article 117 of Decree No. 31/2021/ND-CP, in case the investment project
prescribed in point a clause 2 Article 77 of the Law on Investment is adjusted
and adjustment contents fall under one of the cases specified in points a, b,
c, d, dd, e and g clause 3 Article 41 of the Law on Investment, the investor
shall follow procedures for adjustment to investment guidelines according to
the corresponding provisions in Section 4 Chapter IV of this Decree.
Clause 5 Article 117 of Decree No. 31/2021/ND-CP
provides for: “If adjustments to an investment project not falling under the
cases specified in Clauses 1 and 3 of this Article change any content of the
investment license, certificate of investment incentives, investment
certificate, investment registration certificate or another equivalent document
issued before the effective date of the Law on Investment, the investor shall
follow procedures corresponding to the procedures for adjusting the investment
registration certificate as prescribed in Article 47 of this Decree at an
investment registration authority to obtain the investment registration
certificate. The investment registration certificate shall specify contents of
the adjusted investment project and all unchanged and effective contents of the
investment project on the investment license, investment certificate, certificate
of investment incentives, investment registration certificate or another
equivalent document”.
Thus, it is required to study for adjustment to the
golf course project that has been approved by the Prime Minister before the
effective date of the Law on Investment in accordance with the above
regulations.
66. An investor wins a LUR auction and is
granted an approval for investment in executing a housing project by the
provincial People’s Committee according to the provisions of the Law on
Housing. Currently, the investor applies for project investment approval
adjustment related to the land use structure in accordance with the local
adjustment to the detailed planning (objectives, scale of construction items of
the project will not be changed according to the investment approval previously
approved by the Provincial People's Committee, and only the land use structure
and building heights will be changed), which agency will advise on adjustment
to investment guideline approval?
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The adjustment to an investment project that is
executed before the effective date of the Law on Investment shall be made in
accordance with the transitional provisions in Article 77 of the Law on
Investment and Article 117 of Decree No. 31/2021/ND-CP (see the answer for question
63).
According to the provisions in clause 3 Article 117
of Decree No. 31/2021/ND-CP, in case the investment project specified in point
a clause 2 Article 77 of the Law on Investment is adjusted and the adjustment
contents fall under the cases specified in points a, b, c, d, dd, e and g
clause 3 Article 41 of the Law on Investment, the investor shall follow
procedures for adjustment to investment guidelines, in which the authority
competent to approve investment guidelines under the Law on Investment is an
authority competent to adjust the written decision on investment guidelines,
written approval for investment guidelines or written approval for investment
of such investment project (except for the cases specified in points b and c of
this clause).
Thus, it is required to determine the authority to
adjust the investment project in accordance with the above regulations and
procedures for adjustment on the basis of the proposed adjustment contents of
the investment project and the project contents specified in the written
approval for investment.
67. In case a commercial project (except for
housing projects) of which a decision on investment guidelines have been issued
under the Law on Investment of 2014 has currently required an adjustment to
expand the project land area according to Clause 1, Article 117 of the Decree.
No. 31/2021/ND-CP, is it required to follow procedures for adjusting investment
guidelines to be granted an adjusted investment guideline decision or conduct
bidding for selection of investor executing the project?
Answer:
According to the provisions in Clause 3 Article 117
of Decree No. 31/2021/ND-CP, in case the investment project prescribed in point
a clause 2 Article 77 of the Law on Investment is adjusted and adjustment
contents fall under one of the cases specified in points a, b, c, d, dd, e and
g clause 3 Article 41 of the Law on Investment, the investor shall follow
procedures for adjustment to investment guidelines. Accordingly, the investor
in an investment project whose investment guidelines have been approved must
follow procedures for approving adjustment to investment guidelines if the used
land area is over 10% or 30 ha (point b clause 3 Article 41 of the Law on
Investment).
According to the provisions in clause 1 Article 32
of the Law on Investment, the provincial People’s Committees shall grant
approval for investment guidelines of investment projects with proposal for
land allocation or lease by the State without auction or bidding or receipt of
LURs by conveyance and investment projects with proposal for land repurposing,
etc.
Cases of approval for both investment guidelines
and investor without LUR auction or bidding for investor selection are
specified in clause 4 Article 29 of the Law on Investment.
Pursuant to the above regulations, in the case
where an investor has LURs or adjusted investment project in a land zone
require expansion is subject to approval for both investment guidelines and
investor as prescribed in clause 4 Article 29 of the Law on Investment, the
investment guideline approval is considered to be adjusted to expand the land
area used to execute the project.
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68. If a project that was granted an investment
certificate under the 2005’s Law on investment is still incomplete after
multiple reschedulings, is it still eligible for another 24-month extension
under Clause 4 of Article 117?
Answer:
The adjustment to the schedule of an investment
project of which a decision on investment guidelines, approval for investment
guidelines or approval for investment has been granted by a competent
regulatory authority according to the provisions of laws on investment,
housing, urban areas and construction before the effective date of the Law on
Investment shall comply with the provisions in point a clause 4 Article 117 of
Decree No. 31/2021/ND-CP. Accordingly, the schedule adjusted before the
effective date of the Law on Investment shall continue to be adjusted according
to regulations of the Law on Investment and this Decree but it shall not be
extended by more than 24 months as of January 01, 2021 (if the final
deadline for adjusting the schedule is specified in the written decision on
investment guidelines, written approval for investment guidelines or investment
registration certificate issued before January 01, 2021) or by more than 24
months from the final deadline for adjusting the schedule specified in the
written decision on investment guidelines, written approval for investment
guidelines or investment registration certificate (to regulations of the Law on
Investment and this Decree but it shall not be extended by more than 24 months
as of January 01, 2021 (if the final deadline for adjusting the schedule is
specified in the written decision on investment guidelines, written approval
for investment guidelines or investment registration certificate issued after
January 01, 2021), except for the cases mentioned in Points a, b, c, d, dd
and e Clause 4 Article 41 of the Law on Investment”.
The restriction on adjustment to the schedule of
investment project execution of no more than 24 months according to the above
regulations only applies to projects whose investment guidelines have been
decided or approved or in which investment is approved (it does not apply to
projects that operate within their investment registration certificates and are
not subject to investment guideline decision/approval).
Thus, if the investment project operates within its
investment certificate and is not subject to investment guideline
decision/approval according to provisions of law effective at the time of
operation, the schedule of investment project execution shall not be restricted
according to the above regulations.
If an investment project has land expropriated due
to failure to put it into use or delay in putting it into use according to the
provisions of land law, the investment registration authority shall terminate
the investment project in part or in full as prescribed in Point d, Clause 2,
Article 48 of the Law on Investment.
69. Where a number of projects whose investment
guidelines have been approved by the Provincial People's Committees according
to the Law on Investment of 2005 and the Law on Investment of 2014 fall behind
the schedule due to adjustments to exploitation arrangements made in accordance
with the guidelines of not converting natural forest land to land used for
other purposes according to Notification No. 191/TB-VPCP dated July 22, 2016 of
the Government Office, can the project schedule be adjusted?
Answer:
Clause 4 Article 117 of Decree No. 31/2021/ND-CP
provides for the adjustment to the schedule of an investment project whose
investment guidelines have been decided or approved or in which investment is
approved by a competent regulatory authority according to the provisions of
laws on investment, housing, urban areas and construction before the effective
date of the Law on Investment.
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Thus, it is required to consider the adjustment to
the project schedule on the basis of the above regulations.
70. How to adjust the execution schedule of a
project that is previously subject to the Prime Minister's investment guideline
decision under the Law on Investment of 2014, but is no longer subject to it
under the Law on Investment of 2020?
Answer:
Projects that are executed before the effective
date of the Law on Investment shall be handed according to the provisions in
Article 77 of the Law on Investment and Article 117 of Decree No. 31/2021/ND-CP
(see the answer for question 63).
According to point a clause 3 Article 117 of Decree
No. 31/2021/ND-CP, an investment guideline approving authority as prescribed by
the Law on Investment means an authority that has the power to adjust the written
decision on investment guidelines, written approval for investment guidelines
or written approval for investment of such investment project, except for the
cases in points b and c of this Clause.
Procedures for adjustment to schedule of an
investment project whose investment guidelines have been decided or approved or
in which investment is approved by a competent regulatory authority according
to the provisions of laws on investment, housing, urban areas and construction
before the effective date of the Law on Investment shall comply with the
provisions in point d clause 3 and point d clause 4 Article 117 of Decree No.
31/2021/ND-CP.
Thus, it is required to consider the authority to
adjust the schedule of the investment project and procedures for adjustment in
accordance with the above regulations.
71. What to do when a project is still
incomplete after 24-month extension under Clause 4 Article 41 of the Law on
Investment and the delay is not caused by any force majeure event?
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a) It is necessary to remedy the consequences of
an event of force majeure in accordance with the civil law and the land law;
b) The project execution schedule is adjusted
because the State delays allocating or leasing out land to the investor or
allowing the investor to repurpose land.
c) The project execution schedule is adjusted at
the request of a regulatory agency or the regulatory agency delays in
performing administrative procedures;
d) The investment project is adjusted because
the regulatory agency changes the planning;
dd) Any objective specified in the written
approval for investment guidelines is changed; any objective that is subject to
approval for investment guidelines is added;
e) The total investment capital is increased or
reduced by 20% or more, thereby changing the scale of the investment project”.
Pursuant to the above regulations, the investor
does not only adjust the schedule in cases of force majeure but also adjust the
project schedule beyond 24 months in other cases because the State delays
allocating or leasing out land to the investor or allowing the investor to
repurpose land; the project execution schedule is adjusted at the request of a
regulatory agency or the regulatory agency delays in performing administrative
procedures; or the regulatory agency changes the administrative
procedure etc. However, this regulation only applies to projects subject
to investment guideline approval.
Thus, it is required to review reasons why the
project is behind the schedule to consider cases where the investor is allowed
to adjust the schedule beyond 24 months according to the above regulations.
72. How to inspect, monitor and supervise an
investment project, handle violations of the investor, consider handling
project execution deposits of the investor in case the investor makes an
adjustment to extend the project execution schedule by 12 months or less (the
investor is not required to follow procedures for approval for adjustment to
investment guidelines as prescribed in Clause 3, Article 41 of the Law on
Investment?
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According to the provisions in point d clause 3
Article 41 of the Law on Investment, the investor that has an investment
project whose investment guidelines have been approved shall follow procedures
for approving the adjustment to the investment guidelines; in case extension of
the project execution schedule results in total duration of the project being
extended by 12 months or less compared to that stated in the first written
approval for investment guidelines, the investor is not required to adjust
investment guidelines.
Thus, the supervision and fulfilment of obligations
to pay deposit on the investment project completion guaranty in this case is
carried out on the basis of the investment registration certificate (if any)
and the deposit agreement.
- For a project to which an investment registration
certificate is granted:
The investor shall follow the procedures for
adjusting the investment registration certificate to adjust schedule of the
investment project according to the provisions in clause 3 Article 43 of Decree
No. 31/2021/ND-CP. Accordingly, the investor of an investment project that is not
subject to investment guideline approval or a project whose investment
guidelines have been approved not falling under the cases in clause 3 Article
41 of the Law on Investment shall follow procedures for adjusting the
investment registration certificate (if any) according to the provisions in
Article 47 of this Decree. The investment registration authority shall, based
on the adjustment contents in the adjusted investment registration certificate,
conduct inspection, supervision and state management in terms of investment of
project execution guarantee activities.
- For a project to which an investment registration
certificate is not granted:
The investor and the investment registration
authority shall make adjustments to the deposit agreement according to the
provisions of point e, clause 9, Article 26 of Decree No. 31/2021/ND-CP.
Accordingly, regarding a domestic investor that has their investment guidelines
approved and is not required to obtain the investment registration certificate,
when the project not subject to adjustment to its investment guidelines is
adjusted as prescribed in this Decree and the adjustments change any content of
the project execution guarantee agreement, the investor shall send a written
notification to the investment registration authority prior to the adjustment.
The investment registration authority and investor shall adjust the project
execution guarantee agreement in accordance with the adjustments to the
investment project. In this case, the investment registration authority shall,
based on the adjustment contents in the deposit agreement, conduct inspection,
monitoring and management of the investor's deposit payment.
73. Clause 4 Article 41 of the Law on Investment
of 2020 stipulates that the investor is not allowed to extend the investment
execution schedule by more than 24 months compared to that stated in the first
written approval for investment guidelines, except in some cases. However, in
case projects whose schedule is extended by more than 24 months compared to that
stated in the first written approval for investment guidelines are eligible to
extend the land use period as prescribed in point i, clause 1, Article 64 of
the Land Law and clause 12, Article 2 of Decree No. 01/2017/ND-CP dated January
6, 2017 of the Government, is it possible to extend the project execution
schedule?
Answer:
The extension of the investment project execution
schedule by more than 24 months is specified in clause 4, Article 41 of the Law
on Investment and clause 4, Article 117 of Decree No. 31/ND-CP (see the answers
for the questions 71 and 77).
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According to the provisions in point i clause 1
Article 64 of the Land Law, if the State allocates, leases out land but the
land is not used for 12 consecutive months or the land use schedule extends by
24 months compared to that stated in the investment project from the date of
actual land receipt, such land must be put into use; if the land is not put
into use, the project developer is allowed to extend the land use period by 24
months and has to pay the State an amount corresponding to the land levy or
land rent for the delay in project execution during this extended period; At
the end of the extended period, if the investor still has not put the land into
use, the State shall expropriate the land without compensation for the land and
property affixed to the land, except in cases of force majeure.
Therefore, in case the project is eligible to be
granted an extension for land use according to the provisions of Point i,
Clause 1, Article 64 of the Land Law and falls into the cases specified in
Points a, b, c, d, dd, e Clause 4, Article 41 of the Law on Investment or
Clause 4, Article 117 of Decree No. 31/ND-CP, it is allowed to extend the
investment project execution schedule by more than 24 months according to the
provisions of this Article.
74. When is a project execution schedule
adjusted in case land has not been allocated or leased? What is the basis for
adjusting the schedule in case of changing objectives and increasing total
investment capital?
Answer:
According to the provisions of clause 3 Article 42
of the Law on Investment, the investor shall comply with the provisions of the
written approval for investment guidelines and the investment registration
certificate during execution of their investment project.
Therefore, if the project is not likely to be executed
according to the schedule specified in the written approval for investment
guidelines or investment registration certificate, the investor must follow
procedures for adjusting the project execution schedule according to the
provisions of Article 41 of the Law on Investment.
The regulatory agency shall review the investor’s
proposal for investment registration to appraise the adjustment to the project
execution schedule in accordance with the provisions in Article 41 of the Law
on Investment and guidelines of Decree No. 31/2021/ND-CP.
75. What is the maximum time to adjust the
project execution schedule in case only the investment registration certificate
is issued?
Answer:
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Thus, restrictions on period of adjustment to
project execution schedule as prescribed in clause 4 Article 41 of the Law on
Investment only apply to projects subject to investment guideline approval, and
do not apply to projects that only operate within their investment registration
certificates and are not subject to investment guideline approval.
76. The investment certificate for a tourism
project is issued with a term of 50 years from the date of issuance. During
operation, the works were degraded, the Company upgraded and renovated them and
requested an increase in the operating term to 50 years from the date of
adjustment. Is it possible to increase the operating term of the project to 50
years from the date of adjustment?
Answer:
According to the provisions in Article 44 of the
Law on Investment, the operating term of an investment project in an economic
zone must not exceed 70 years. The operating term of an investment project
outside an economic zone must not exceed 50 years.
According to the provisions of clause 1 Article 27
of Decree No. 31/2021/ND-CP, the operating term of an investment project as
specified in clauses 1 and 2 Article 44 of the Law on Investment shall be
calculated from the date on which the investor is granted with an investor
approval decision, a decision on approval for both investment guidelines and
investor or the first investment registration certificate. The operating
term of an investment project whose land is allocated, leased out by the State
or repurposed shall be calculated from the date on which the investor is issued
with a decision to allocate land, a decision to lease out land or a decision to
repurpose land. If the investor has had the decision to allocate land, decision
to lease out land or decision to repurpose land but he/she faces a delay in
land handover, the operating term of the investment project shall be calculated
from the date of handover of land in the field.
According to the provisions in clause 2 Article 27
of Decree No. 31/2021/ND-CP, during the investment project execution, the
investor may increase or decrease the operating term of the investment project.
The adjusted operating term of the investment project must not exceed the terms
specified in clauses 1 and 2 Article 44 of the Law on Investment.
Pursuant to the above regulations, the operating
term of an investment project shall be calculated from the time of issuance of
the first investment registration certificate and must not exceed the terms
specified in clauses 1 and 2 Article 44 of the Law on Investment in case of
adjustment.
Thus, in case the investment certificate with a
term of 50 years from the date of issuance has been issued, the operating term
of the project cannot be increased to 50 years from the date of adjustment. In
case the operating term of the investment project expires, the investor shall
follow procedures for extending the operating term of the investment project
according to the provisions of Article 27 and Article 55 of Decree No.
31/2021/ND-CP.
77. In case an extension of an investment project
to which an approval for adjustment to execution schedule is granted for no
later than December 31, 2022 according to the provisions of points a and b,
Clause 4, Article 117 of Decree No. 31/2021/ND-CP, if the project continues to
be behind schedule due to no fault of a regulatory agency, is it possible to
adjust the schedule according to Clause 4, Article 41 of the Law on Investment
of 2020?
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According to the provisions of clause 4 Article 117
of Decree No. 31/2021/ND-CP, Regarding an investment project whose investment
guidelines are decided or approved or in which the investment is approved by a
competent authority in accordance with regulations of law on investment,
housing, urban areas and construction before the effective date of the Law on Investment,
the project execution schedule shall be adjusted as follows: “The schedule
adjusted before the effective date of the Law on Investment shall continue to
be adjusted according to regulations of the Law on Investment and this Decree
but it shall not be extended by more than 24 months as of January 01, 2021 (if
the final deadline for adjusting the schedule is specified in the written
decision on investment guidelines, written approval for investment guidelines
or investment registration certificate issued before January 01, 2021) or by
more than 24 months from the final deadline for adjusting the schedule
specified in the written decision on investment guidelines, written approval
for investment guidelines or investment registration certificate (to regulations
of the Law on Investment and this Decree but it shall not be extended by more
than 24 months as of January 01, 2021 (if the final deadline for adjusting the
schedule is specified in the written decision on investment guidelines, written
approval for investment guidelines or investment registration certificate
issued after January 01, 2021), except for the cases mentioned in Points a,
b, c, d, dd and e Clause 4 Article 41 of the Law on Investment”.
Clause 4 Article 41 of the Law on Investment provides
for: “With respect to the investment project whose investment guidelines are
approved, the investor is not allowed to extend the investment execution
schedule by more than 24 months compared to that stated in the first written
approval for investment guidelines, except for one of the following cases:
a) It is necessary to remedy the consequences of
an event of force majeure in accordance with the civil law and the land law;
b) The project execution schedule is adjusted
because the State delays allocating or leasing out land to the investor or
allowing the investor to repurpose land.
c) The project execution schedule is adjusted at
the request of a regulatory agency or the regulatory agency delays in
performing administrative procedures;
d) The investment project is adjusted because
the regulatory agency changes the planning;
dd) Any objective specified in the written
approval for investment guidelines is changed; any objective that is subject to
approval for investment guidelines is added;
e) The total investment capital is increased or
reduced by 20% or more, thereby changing the scale of the investment project”.
Pursuant to the above regulations, in addition to
adjustment to the schedule at the request of the regulatory agency, adjustment
to the investment project due to the change in planning by the regulatory
agency, the investor may extend the project schedule to more than 24 months in
other cases where the delay is not the regulatory agency's fault (such as force
majeure, change of objectives specified in the written approval for investment
guidelines, addition of objectives subject to investment guideline approval,
increase in total investment capital of at least 20% resulting to a change in
the scale of the investment project).
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78. Clause 3 Article 41 of the Law on Investment
of 2021 only stipulates that the investor shall follow procedures for approving
the adjustment to the investment guidelines (does not stipulate that the
investor must adjust the investment registration certificate when falling into
the subjects specified in this clause). This regulation will cause difficulties
for the investor who has a project to which both the investment guideline
approval and the investment registration certificate are granted because the
information about the project stated in these documents is not adjusted
consistently with each other.
Answer:
The adjustment to the investment registration
certificate of a project subject to investment guidelines adjustment shall be
made according to the provisions in point a clause 2 Article 43 of Decree No. 31/2021/ND-CP.
Accordingly, for an investment project to which both the investment guideline
approval and the investment registration certificate are granted, after
following the procedures for adjusting the decision on investment guideline
approval according to the corresponding provisions in Articles 44, 45 and 46 of
this Decree, the investor shall follow procedures for adjusting the decision on
investor approval (if any) or the investment registration certificate (if any).
Thus, information about the adjusted investment project in the adjusted
decision on investment guideline approval and the adjusted investment
registration certificate will be adjusted to be consistent with each other.
79. How to transfer a project that is unfinished
or has come into operation partially to another investor?
Answer:
- According to the provisions of clause 1 Article
46 of the Law on Investment, the investor is entitled to convey part
or whole of an investment project to another investor when the following
conditions are satisfied:
a) The investment project or the part of the
investment project which is transferred has not been terminated in accordance
with Clauses 1 and 2 Article 48 of this Law;
b) The foreign investor receiving the investment
project or part of the investment project must satisfy the conditions set out
in Clause 2 Article 24 of this Law;
c) The conditions set forth in the law on land
are complied with if the transfer of an investment project is associated with
transfer of the land use rights/property on land;
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dd) The conditions set forth in the written
approval for investment guidelines or the investment registration certificate
or in relevant laws (if any) are complied with;
e) Upon transfer of an investment project, in
addition to compliance with this Article, the state-owned enterprise shall
comply with provisions of law on management and use of state capital invested
in manufacturing and business activities of enterprises before making any
adjustment to the investment project.
- According to the provisions of clause 2 Article
46 of the Law on Investment, if the conditions for transfer set forth in Clause
1 of this Article are satisfied, the investor shall follow the procedures for
transferring the investment project in part or in full as follows: In case the
investor in an investment project to which an investment registration
certificate is granted has been approved in accordance with Article 29 of this
Law, he/she shall follow procedures for adjusting the investment project as
prescribed in Article 41 of this Law; for an investment project other than that
prescribed in Point a of this Clause, the transfer of the investment project or
transfer of property ownership to the investor receiving the investment project
shall be carried out in accordance with the civil law, the law on enterprises,
the law on real estate business and other regulations of law.
- Regarding the transfer of an investment project
associated with the transfer of land use rights and property affixed to land,
the Land Law (Articles 189, 194, etc.) stipulates conditions for selling and
purchasing property affixed to land that is leased out by the State with annual
land rent payments; conditions for transferring land use rights applied in
executing investment projects for housing construction and business; investment
projects to build infrastructure for transfer or lease, etc.
According to the provisions in Article 194 of the
Land Law, land use rights shall be conveyed in the form of land subdivision
after completing investment in infrastructure construction and financial
obligations relating to land; for an investment project for housing
construction and business, land use rights can be conveyed in conjunction with
all or part of the project if a certificate is obtained; land use rights will
be conveyed in conjunction with the entire investment project to build
infrastructure for conveyance or lease if the conditions that the construction
of corresponding infrastructure works must be finished according to the
schedule stated in the approved project are met.
- Article 49 of the Law on Real Estate Business
stipulated conditions for conveyance of all or part of a real estate project.
Accordingly, the conveyed real estate project must meet the following
conditions: The project has been approved by a competent authority; the
approved detailed planning of 1/500 scale or general site planning is
available; compensation and land clearance tasks related to the project or part
of the project to be conveyed have been finished. If the entire investment
project to build infrastructure is conveyed, the construction of corresponding
technical infrastructure must be finished according to the schedule stated in
the approved project, etc.
The transferor has obtained the certificate of land
use rights over the whole or part of project to be conveyed. The transferee
must be a real estate enterprise and financially capable, and undertake to keep
conducting the investment and business in accordance with regulations of law,
and ensure the project's schedule and contents.
Thus, it is required to study for implementation as
prescribed in the above regulations.
80. According to the provisions in clause 1
Article 127 of Decree No. 31/2021/ND-CP dated March 26, 2021 of the Government:
The investor in a project to which a certificate of investment incentives is
granted before the effective date of the Law on Investment may replace it with
an investment registration certificate. The investor shall submit an
application for replacement of the investment registration certificate to an
investment registration authority How does the investment registration
authority update the investment project content to reissue an investment
registration certificate to the investor (because the content of the
certificate is very sketchy)?
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Point b clause 1 Article 127 of Decree No.
31/2021/ND-CP provides for: “The investment registration certificate shall
contain information about the investment project in the investment license,
certificate of investment incentives, investment certificate or equivalent
document”.
According to Template No. A.I.16 - the application
for replacement of investment registration certificate enclosed with Circular
No. 03/2021/TT-BKHDT dated April 9, 2021 of the Minister of Planning and
Investment, the investor shall provide proposed information stated in the
investment registration certificate (write all information according to the
investment registration certificate template prescribed in this Circular on the
basis of the investment certificate/adjusted investment license/adjusted
business license or equivalent documents that have been granted).
Thus, it is required that the investment
registration authority complies with the above regulations.
81. Clause 3 Article 116 of Decree No.
31/2021/ND-CP dated March 26, 2021 of the Government provides for equivalent
documents. For projects with adjustment contents falling into one of the cases
specified in Points a, b, c, d, dd, e and g, Clause 3, Article 41 of the Law on
Investment and falling into the cases specified in Clause 3 Article 116 Decree
No. 31/2021/ND-CP (particularly, documents and decisions of regulatory agencies
competent to decide investment guidelines or grant the project investment
permission or approval according to regulations of laws on land, bidding, and
enterprises in effect at the time of issuance of these documents and
decisions), are these projects subject to adjustment to investment guidelines
according to the provisions of Clause 3, Article 117 of Decree No.
31/2021/ND-CP?
Answer:
Clause 3 Article 117 of Decree No. 31/2021/ND-CP
stipulates the procedures for adjustment to investment guidelines in case the
investment project prescribed in point a clause 2 Article 77 of the Law on
Investment is adjusted and adjustment contents fall under one of the cases
specified in points a, b, c, d, dd, e and g clause 3 Article 41 of the Law on
Investment.
Point a Clause 2 Article 77 of the Law on
Investment stipulates cases where an investor is granted a decision on
investment guidelines, investment guideline approval or investment approval by
a competent regulatory authority according to the provisions of laws on investment,
housing, urban areas and construction before the effective date of this
Law.
Pursuant to the above regulations, only projects
subject to investment guideline decisions, investment guideline approvals or
investment approvals according to regulations of law on investment, housing,
urban areas and construction before the effective date of this Law in
compliance with Point a, Clause 2, Article 77 of the Law on Investment, it is
required to follow procedures for adjusting investment guidelines according to
the provisions of Clause 3, Article 117 of Decree No. 31/2021/ND-CP when
adjusting one of the cases specified in Points a, b, c, d, dd, e and g, Clause
3, Article 41 of the Law on Investment.
III. Content related
to termination of investment projects
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Answer:
According to the provisions in clause 3 Article 48
of the Law on Investment, the investment registration authority shall terminate
the investment project after obtaining the opinion of the authority granting
approval for investment guidelines.
Pursuant to the above regulations, the investment
registration authority shall terminate the investment project whose investment
guidelines are approved after obtaining the opinion of the authority granting
approval for investment guidelines.
Assigning the investment registration authority to
terminate the investment project whose investment guidelines are approved is
intended to simplify administrative procedures and facilitate state management
of investment.
83. How to terminate investment projects in the
following cases:
- Some projects that violate land regulations are
subject to land expropriation, but investment registration authorities do not
have any information about that, so there is no basis to terminate the
projects' operations;
- Some projects are executed slowly but it is
not considered failure to put land into use according to the Land Law; project
developers of projects are slow in performing site clearance tasks or
deliberately delay site clearance tasks, or are slow in following land lease
procedures, etc.
Answer:
- Regarding information about projects that violate
land regulations and are subject to land expropriation, it is required to study
for implementation as prescribed in the provisions of Clause 3, Article 15 of
Decree No. 43/2014/ND-CP. According to which the Provincial People's Committees
are responsible for organizing the review, handling and public announcement on
the websites of the Provincial People's Committees of investment projects that
have land unused for 12 consecutive months or are delayed by 24 months
according to the initial schedule stated in the investment projects; projects
that are extended; projects that are behind schedule in terms of land use due
to force majeure, etc.
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According to the provisions in point dd clause 2
Article 47 of the Law on Investment, the investment authority shall decide to
suspend an investment project in part or in full in case the investor fails to
adhere to the written approval for investment guidelines or the investment
registration certificate and recommits administrative violations after
incurring penalties.
The above regulations must be applied to the
termination of an investment project if it is executed slowly and it is not
considered failure to put land into use; if site clearance tasks are
deliberately delayed, the land lease is delayed or is not right on schedule
under the written approval for investment guidelines, etc.
84. Why is it stipulated that a project will be
terminated only when it has been suspended and incurred an administrative
penalty?
Answer:
Clause 2 Article 47 of the Law on Investment
stipulates that the investment authority shall decide to suspend an investment
project in part or in full in case the investor fails to adhere to the written
approval for investment guidelines or the investment registration certificate
and recommits administrative violations after incurring penalties.
Administrative penalties must be stipulated before
the investment project is suspended or terminated to ensure the transparency
and the investor’s interests and avoid arising complaints.
85. A project is terminated due to violations
against the Law on Investment; and according to the provisions of the Land Law,
the project developer is entitled to sell the legal property on land to
individuals or organizations in need within 24 months from the date on which
the decision to terminate the project is issued. What is the basis for
considering and approving the investment guidelines for an investor to define
his/her project's operating term as 50 years or less or to define it according
to the remaining operating term of the original project as specified in the
decision to allocate land or lease out land, or the certificate of land use
rights?
Can an investor whose project is terminated be
allowed to sell legal property on land to individuals or organizations in need
within 24 months from the date on which the decision to terminate the project
is issued according to the provisions of the Land Law?
Answer:
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- After an investment project is terminated, the
liquidation of the project shall comply with the provisions in clause 8 Article
57 of Decree No. 31/2021/ND-CP and relevant laws. Accordingly, the investor
shall themselves liquidate the investment project according to the provisions
of law on property liquidation; for the investment project whose land is
allocated, leased out by the State or repurposed, the handling of land use
rights and property affixed to land shall comply with the provisions of land
law and relevant laws, etc.
Article 15b concerning land expropriation in case
of termination of an investment project as prescribed by law on investment of
Decree No. 43/2014/ND-CP [19] stipulates that the project developer is entitled
to sell the legal property affixed to land to the other investor according to
the provisions of law within 24 months from the date on which the investment
project is terminated as per regulation.
Thus, it is required to study for the liquidation
of property of investment projects that are terminated according to the above
regulations.
86. When an investor decides to terminate a
project according to the provisions of Clause 1, Article 48 of the Law on
Investment of 2020, what forms of notification of proceeding procedures related
to land, tax, etc. do investment registration authorities need to use to send
to Departments and local authorities?
Answer:
Clause 2 Article 57 of Decree No. 31/2021/ND-CP
provides for: “Termination procedures are as follows:
a) If the investor decides to terminate the
investment project himself/herself/itself as prescribed in Point a Clause 1
Article 48 of the Law on Investment, such investor shall send the termination
decision to the investment registration authority within 15 days from the date
of making the decision together with the investment registration certificate
(if any);
b) If the investment project is terminated
according to the conditions set out in the contract or enterprise's charter or
upon the expiration of the project’s duration as specified in Points b and c
Clause 1 Article 48 of the Law on Investment, the investor shall notify and
return the investment registration certificate (if any) to the investment
registration authority within 15 days from the date of termination together
with a copy of the document recording the termination. The investment
registration authority shall notify the project termination to relevant
authorities”.
Pursuant to the above regulations, it is required
that investment registration authorities have to send notifications of the
termination of investment projects enclosed with decisions or notifications of
the investors concerning the termination of the investment projects and
investment registration certificates (if any) to relevant agencies.
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Answer:
According to the provisions in point d clause 2
Article 48 of the Law on Investment, the investment registration authority shall
terminate an investment project in part or in full if the investment project is
subject to land expropriation due to failure to put land into use or delay in
putting land into use according to the provisions of land law.
Clause 5 Article 57 of Decree No. 31/2021/ND-CP
provides for: “If the investment project is terminated as prescribed in
Points a, b and dd Clause 2 Article 48 of the Law on Investment, the investment
registration authority shall make a record prior to making a decision on
termination. If the investment project is terminated as prescribed in Point d
Clause 2 Article 48 of the Law on Investment, the investment registration
authority shall decide to terminate the project after the land expropriation
decision is issued”.
Thus, the land expropriation under land regulations
is carried out first, serving as a basis for the investment registration
authority to terminate the investment project in part or in full.
88. What are procedures for revoking investment
registration certificates; and handling problems that arise after revoking such
investment registration certificates?
Answer:
Procedures for handling and revocation of an
investment registration certificate and handling of an investment project after
being terminated shall comply with the provisions of Clauses 4, 5, 6, Article
48 of the Law on Investment and Article 57 of Decree No. 31/2021/ND-CP.
According to the provisions of Clauses 4, 5 and 6,
Article 48 of the Law on Investment, the investment registration authority
shall decide to revoke the investment registration certificate if the
investment project is terminated in accordance with Clause 2 of this Article,
except for the case of termination of part of the investment project. The
investor shall liquidate the investment project in accordance with the law on
liquidation of property upon termination of the investment project, except for
the case specified in Clause 5 of this Article. The settlement of the rights to
use land and property on land upon termination of the investment project shall
comply with the law on land and other relevant regulations of law.
Article 57 of Decree No. 31/2021/ND-CP provided
detailed guidelines on conditions and procedures for termination of investment
projects. Clause 8 of this Article provides for the liquidation of investment
projects after they are terminated. According to these regulations, the
investor shall liquidate the investment project according to the provisions of
law on property liquidation; if the investment project whose land is allocated,
leased out by the State or repurposed, the settlement of land use rights and
property affixed to land shall comply with the provisions of land law and
relevant laws; during the liquidation of the investment project, if the
investor is a business organization that is dissolved or falls into bankruptcy,
the liquidation of the investment project shall comply with the provisions of
law on dissolution and bankruptcy of business organizations.
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LIST
Members of the PRIME MINISTER’S SPECIAL
WORKING GROUP ON REVIEW AND RELIEF OF PROBLEMS AND DIFFICULTIES, AND
ENHANCEMENT OF IMPLEMENTATION OF INVESTMENT PROJECTS falling within the remit
of ministries, central and local authorities
1. Mr. Phan Chi Hieu, Deputy Minister of Justice -
Deputy Head of the Working Group
2. Mr. Luong Tam Quang, Deputy Minister of Public
Security - Member
3. Mr. Nguyen Minh Vu, Deputy Minister of Foreign
Affairs - Member
4. Mr. Pham Anh Tuan, Deputy Minister of
Information and Communications - Member
5. Mr. Nguyen Ngoc Dong, Deputy Minister of Transport
- Member
6. Mr. Le Van Thanh, Deputy Minister of Labor, War
Invalids and Social Affairs - Member
7. Mr. Ta Anh Tuan, Deputy Minister of Finance -
Member
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9. Mr. Bui Hong Minh, Deputy Minister of
Construction - Member
10. Mr. Le Minh Ngan, Deputy Minister of Natural
Resources and Environment - Member
11. Mr. Doan Van Viet, Deputy Minister of Culture,
Sports and Tourism - Member
12. Mr. Pham Cong Tac, Deputy Minister of Science
and Technology - Member
13. Mr. Nguyen Hoang Hiep, Deputy Minister of
Agriculture and Rural Development - Member
14. Mr. Doan Thai Son, Deputy Governor of the State
Bank of Vietnam - Member
15. Mr. Nguyen Cao Luc, Deputy Head of the
Government Office - Member
16. Mr. Ho Sy Hung, Vice Chairman of the Commission
for the Management of State Capital at Enterprises - Member
17. Ms. Tong Thi Hanh, Director of Department of
Legal Affairs - Ministry of Construction, Member
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19. Mr. Nguyen Van Viet - Director of Planning
Department of the Ministry of Agriculture and Rural Development, Member
20. Ms. Nguyen Minh Hang - Director of the Department
of General Economic Affairs - Ministry of Foreign Affairs, Member
21. Mr. Nguyen Thanh Tu, Director of the Department
of Economic-Civil legislation, Ministry of Justice, Member
22. Mr. Dao Trung Chinh - Deputy Director General
of the General Department of Land Management -Ministry of Natural Resources and
Environment, Member
23. Mr. Bui Tat Hop - Deputy Director of the
Industry Department of the Government Office, Member
24. Ms. Do Vu Anh Thu - Deputy Director of the
Planning Department - Ministry of Industry and Trade, Member
25. Ms. Nguyen Thi Hong Lien - Deputy Director of
the Department of Planning and Finance - Ministry of Culture, Sports and
Tourism, Member
26. Ms. Nguyen Thi Quyen - Deputy Director of the
Department of Employment - Ministry of Labor, War Invalids and Social Affairs,
Member
27. Mr. Le Nam Trung - Deputy Director of the
Department of Planning and Finance - Ministry of Information and
Communications, Member
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29. Mr. Ho Duc Thang - Deputy Director of the
Department of General Affairs - Commission for the Management of State Capital
at Enterprises, Member
30. Mr. Duong Ba Duc - Deputy Director of the
Department of Investment - Ministry of Finance, Member
31. Mr. Hoang Van Thu - Deputy Director of the
Department of Corporate Finance - Ministry of Finance, Member
32. Mr. Vo Huu Hien - Deputy Director of the
Department of Debt Management and External Finance -Ministry of Finance, Member
1
Amended by Clause 4, Article 108 of Decree No. 31/2021/ND-CP
2
Amended by Clause 1 Article 108 of Decree No. 31/2021/ND-CP
3
Amended by Clause 6 Article 3 of Decree No. 135/2016/ND-CP dated September 09,
2016
4
Amended by Clause 12 Article 1 of Decree No. 148/2020/ND-CP dated December 18,
2020
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6
Amended by Clause 5 Article 108 of Decree No. 31/2021/ND-CP
7
Amended by Clauses 6 and 7, Article 108 of Decree No. 31/2021/ND-CP
8
Amended by point a Clause 29 Article 89 of Decree No. 35/2021/ND-CP
9
Amended by Clause 5 Article 108 of Decree No. 31/2021/ND-CP
10
Amended by Article 108 of Decree No. 31/2021/ND-CP.
11
Amended by Clause 2 Article 108 of Decree No. 31/2021/ND-CP
12
Amended by Clause 1 Article 108 of Decree No. 31/2021/ND-CP
13
Amended by Decree No. 30/2021/ND-CP.
14
Amended by Article 108 of Decree No. 31/2021/ND-CP.
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16
Amended by Clause 4 Article 108 of Decree No. 31/2021/ND-CP.
17
Amended by Clause 9 Article 108 of Decree No. 31/2021/ND-CP.
18
Amended by Clause 6 Article 108 of Decree No. 31/2021/ND-CP.
19
Amended by Decree No. 01/2017/ND-CP dated January 6, 2017 on amendments to
certain Decrees elaborating the Land Law