|
THE
COUNCIL OF MINISTERS
-------
|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
---------
|
|
No.
49-HDBT
|
Hanoi,
March 4, 1991
|
DECREE
ON THE TRANSFER OF FOREIGN TECHNOLOGY INTO VIETNAM
THE COUNCIL OF MINISTERS
Pursuant to the Law on
Organization of the Council of Ministers of the Socialist Republic of Vietnam
dated 4 July 1981 ;
Pursuant to the Law on Foreign Investment in Vietnam, dated 29 December 1987
and the Law on Amendment and Addition to the Law on Foreign Investment in
Vietnam, dated 30 June 1990;
Pursuant to the Ordinance on the Transfer of Foreign Technology into Vietnam
dated 10 December 1988 ; and
On the Proposal of the Chairman of the State Committee of Science.
DECREES
Chapter I
GENERAL PROVISIONS
Article 1
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 2
Participants
in the transfer of technology :
1. The transfer of technology
referred to in clause 1 of article 2 of the Ordinance means;
- Foreign legal entities
(economic, financial and scientific organizations; companies and enterprises);
- Non-governmental
organizations;
- Foreign individuals;
- Enterprises and corporations
with foreign owned capital which are Vietnamese legal entities; and
- Overseas Vietnamese.
2. The transferee of technology
referred to in clause 2 of article 2 of the Ordinance means;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- Enterprises and corporations
with foreign owned capital which are Vietnamese legal entities; and
- Vietnamese individuals.
Article 3
Contents
of technology transfer :
The following are transfers of
technology :
1. The transfer of ownership or
the right to use all types of industrial property, including:
- Inventions;
- Industrial designs;
- Trade marks;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
The buying and selling of trade
without the transfer of the associated industrial property rights shall not
constitute a transfer of technology.
2. The transfer through the
purchase, sale or supply of the following (with or without equipment) :
- Technical know-how;
- Technological projects and
processes;
- Preliminary designs and
technical designs;
- Formulate, drawings, graphs, diagrams,
charts; and
- Other technical knowledge and
expertise.
3. The provision of the
following forms of consultancy of support services:
- Technical support, selection
of technology, instructions for the installation of equipment, trial operations
of various types of technology;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- Consultation in relation to
technology management; organization and operation of production and technology
processes;
- Training and improvement of
the professional, technical and managerial skills of administrators,
technicians and other workers; and
- Support services in relation
to the collection, processing and supply of information on markets, technology,
law, resources and the environment.
The importing of conventional
machinery, equipment, and materials shall not be considered to amount to the
transfer of technology and shall not fall within the areas covered by the
Ordinance.
Article 4
Basic
requirements of technology to be transferred into Vietnam :
1. Technology to be transferred
into Vietnam shall be obliged to achieve at least one of the following :
(a) The raising of the
technological level of production by :
- Increasing labour productivity;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- Improvement in design and in
product quality ; or
- Creation of new products to
satisfy local consumption and export requirements.
(b) The efficient exploitation
of local resources such as raw materials and fuel; job creation and employment
of available manpower; or the exploitation and development of recyclable
resources.
2. Technology to be transferred
shall be guaranteed :
(a) Not to result in any effects
which may be detrimental to the environment such as :
- Land, water or air pollution;
- Damage to natural fauna and
flora;
- Ecological imbalances ; and
- Damage to the cultural and
social aspects of populated areas.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
It, due to the nature of the
technology transferred, any of the above effects appear which are detrimental
to the workers or to the environment, the two parties to the technology transfer
shall devise appropriate remedial measures. These measures shall be considered
to be part of the technology to be transferred and shall be explained in detail
in the relevant technology transfer contracts.
Chapter II
TECHNOLOGY TRANSFER
CONTRACTS
Article 5
Every
transfer of technology which takes place and is commercial in nature or binding
in terms of rights and obligations shall take place pursuant to a contract in
writing (hereinafter referred to as the contract).
The written contract document shall
serve as the basis upon which each party may perform its undertakings, shall
guarantee the legal requirements for the import of technology, equipment,
payment, and the settlement of disputes.
Article 6
Principal
provisions to be included in technology transfer contracts :
All technology transfer
contracts shall include the following principal information :
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. Definitions of terms used in
the contracts.
3. Details of technology to be
transferred:
- Name (technology or business);
- Detailed description of
principal contents (according to the classification of the contents of the
technology to be transferred as defined in article 3 of Chapter I);
- Technical and economic value
of each item of technology to be transferred ; and
- Results estimated to be
achieved following, completion of the technology transfer (economically,
technically, socially).
4. Provisions which relate
specifically to industrial property rights, including the supply of documents
which describe the industrial property and all other legal documents which
certify the industrial property rights as being protected.
5. Time, schedule and place at
which the technology is to be provided.
Where the technology is
transferred with accompanying equipment, there shall be included a list of that
equipment, details of and plans for the delivery of each type of equipment.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
6. Payments :
Prices, conditions and modes of
payment (including type of currency to be used, place where payment is to take
place, time limits and percentages).
Where the technology to be
transferred consists of a number of different items it is necessary to stage
clearly the mode by which each item will be paid for in accordance with the
contract.
Where item or part of the
technology transferred is no longer valid (due to the expiry of a protected
industrial property right or to the technical know-how becoming public
information), the parties shall negotiate further the provisions in relation to
payment.
7. Undertakings shall be made by
both parties in relation to the following:
- Quality of technology
- Reliability of technology
- Duration of guarantees
- Guarantee of confidentiality
during the validity of the project
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- Other undertakings of the two
parties necessary to ensure that the transfer of technology is problem free.
8. Necessary training programs
in relation to the transferred technology :
- Responsibilities of the two
parties for training;
- Form, contents and areas of
training;
- Duration, and location of
training;
- Training expenses and other
related provisions ; and
- Objectives and level of skills
to be achieved from training.
9. Duration of contracts and
provisions allowing changes to be made by the parties to the duration or expiry
of them.
10. Issues in relation to
disputes arising from contracts :
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- Method of resolution to be
adopted ; and
- Bodies to be used in the
resolution of disputes.
Article 7
When
examining the contents of a technology transfer, the two parties shall define
clearly the contents of the technology, the skill, expertise and consultancy
business, the types of resources, materials and machines which Vietnam can
supply and the conditions attached to using them as substitutes for imports and
the replacement process.
Article 8
Provisions
not to be included in contracts :
The following provisions shall
not be included in contracts.
1. Provisions which compel the
transferee of technology to buy or conditionally receive the following objects
(in terms of quantity, quality and specifications) from the transferor or party
appointed by the transferor:
- Raw materials, other
materials;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- Intermediate products; and
- Unskilled labour.
Specific guarantees which are
required for the technology, in terms of resources, materials, accessories,
capital goods or skilled manpower with technical expertise shall be explained
in detail and agreed to by both parties.
2. Provisions which compel the
transferee of technology to agree to and abide by specified limits in relation
to the following :
- Scope of production and
quantity of products (or groups of products) to be produced over a specified
period of time;
- Prices, volume and area of
product consumption ; or
- Appointment of sales agents or
commercial representatives and the activities of and relationship between the
transferee of technology and those agents and representatives.
3. Provisions which restrict the
export market of the transferee of the technology by :
- Specifying those markets which
may not be exported to ;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- Specifying the volume and
composition of the groups of products which are to be exported to a particular
market during a particular time period.
Where the transferor of the
technology is producing and consuming a similar product in a particular market,
or has granted a license to a third party for the exclusive use of the
industrial property rights (monopoly license) thereby enabling them to receive
technology similar to that being transferred, the production and export of
products shall take place in accordance with the agreements contained in the
contracts and in accordance with the Vietnamese laws and international
conventions on industrial property rights to which Vietnam is a party.
4. Provisions which provide that
the transferee of technology shall not research and develop further the
technology transferred or receive similar technology from other sources.
5. Provisions which prohibit the
transferee of technology from utilizing freely the technology after the
duration of the contract or the industrial property rights contained in the
contract have expired.
Where special circumstances
exist (due to the nature of the technology transferred, or to the state of the
national economy) the authorized State body in charge of technology transfers
may consider and allow one or more of the restrictive provisions referred to
above, to be included in the contract.
Article 9
Price of
the technology to be transferred:
The price of the technology to
be transferred shall be agreed upon by the two parties on the basis of equality
and mutual benefit. Price fixing procedures shall accord with the value of the
technology, and the prices and price fixing procedures of similar technology in
international markets at the time of calculation.
Article 10
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Payment may be made by either
package payment, installment payment or a combination of both. The amount of
"installment payments" depends on the nature of technology, but shall
not in total exceed by five (5) per cent or more the net selling price of the
products produced or the services provided as a result of the technology
transferred.
The two parties may agree upon
the currency to be used for payment or for payment to be made in kind. All
payments made in cash and cash transfers shall take place in accordance with
the regulations of the State of Vietnam.
Where payments are made in kind
(goods) then depending on the nature of the goods involved (whether or not they
are included in a quota), the two parties shall clearly define this method of
payment in the contract and shall carry it out in accordance with the
regulations of the management of export and import business of the Council of
Ministers of Vietnam.
Article 11
Duration
of contracts :
1. The duration of a contract is
the period of time for which it is valid commencing from the time of approval
and issue of a license for technology transfer by either the authorized
Vietnamese body in charge of technology transfer or the bodies invested with
such power, as referred to in articles 15 and 20 of this Decree.
2. The duration of the contract
shall be determined and agreed upon by the two parties, but shall be no longer
than seven years.
3. The authorized State body in
charge of technology transfers may, in special circumstances at the request of
the two parties, approve of contracts the duration of which are longer than
seven years.
Article 12
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
If, during the performance of a
contract, the transferor or transferee of the technology creates some
improvement or innovation in relation to the technology transferred, each party
may officially request that the other party inform it of the existence and
preliminary contents of these changes and, where necessary, propose official
negotiations aimed at the purchase or receipt of the improvements and
innovations.
Article 13
Supply of
improvements and innovations in the technology transferred :
1. Upon being requested to
supply information on improvements and innovations, each party shall be
responsible to transfer the information to the other party first, on the basis
of agreement, equality and mutual benefit.
In the event that one party
deliberately fails to transfer, brings undue pressure to bear on the other party,
or transfers the innovations and improvements to a third party on more
favorable conditions thereby causing material damage to the other party, the
other party may officially request that the authorized State body in charge of
technology transfer intervene or treat it as a dispute arising under the
contract and which shall be resolved in accordance with article 14 of this
Decree.
2. The transfer of improvements
or innovations shall be effected in the same manner as the ordinary transfer of
technology and may be done by way of a new technology transfer contract or
supplementary technology transfer contract in accordance with the terms
contained in the original contract.
Article 14
Resolution
of disputes :
1. The parties shall attempt to resolve
all disputes which arise during the performance of the contract by negotiation
and reconciliation.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- The Foreign Trade Arbitration
Council affiliated to the Vietnamese Chamber of Commerce and Industry or an
arbitrator of a third country or international arbitration; or
- An arbitration council
mutually agreed upon by the two parties.
Chapter III
MANAGEMENT AND APPROVAL
OF TECHNOLOGY TRANSFER CONTRACTS.
Article 15
The State
Committee of Science shall be the State body which is authorized to manage
contracts of technology transfer from foreign countries into Vietnam.
The power to approve technology
transfer contracts is delegated in accordance with article 20 of this Decree.
Article 16
Application
for approval of technology transfer contracts :
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
When applying for approval of a
contract, the two parties shall submit the following documents :
1. An application for the
approval of a contract completed in accordance with official printed form of
the State Committee for Science.
2. The technology transfer
contract and all attached appendices.
3. A feasibility study.
The feasibility study may be
made by either party and must contain the justifications for the contract,
supplements to analyses and calculations regarding markets, materials,
technology, economy, finance and efficiency of technology transfer.
4. Information ensuring the
status of each party as a legal entity, their property rights and all other
necessary details in relation to the two parties participating in the
technology transfer contract, such as :
- Name and address of the
company;
- The guarantor or sponsoring
organization;
- Bank, account number, capital;
and
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
The languages to be used in the
contract and all attached documents shall be Vietnamese and a widely used
foreign language agreed upon by the two parties in the contract. Both versions
shall be equally valid.
Article 17
Decision
to approve contracts:
The State Committee for Science
or bodies to which the power to approve technology transfer contracts has been
delegated shall, within three months of receipt of the application referred to
in the provisions of article 16 of this Decree, communicate its decision to
approve of or refuse the technology transfer contract.
The communication of approval shall
be effected by the issue of the technology transfer license. The State
Committee for Science shall publish official forms of technology transfer
licenses to be used in relation to all kinds of technology transfer contracts.
Article 18
False
statements and dealing with false statements :
1. Where Vietnamese State bodies
have sufficient evidence that a false statement has been made, the license
permitting technology transfer shall be withdraws and the contract
automatically declared invalid.
Where the contract is invalid,
the market of the statement shall be responsible for all economic and financial
consequences which flow as a result.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 19
Amendments
to contract :
Technology transfer contracts
may be subject to additions, amendments, or cancellations in part provided that
both parties unanimously agree and send a written proposal to the body which
originally approved the contract and granted the technology transfer license.
The body shall then within one month of receiving the parties' request to
change the contract, deliver its findings in writing.
The additions, amendments, and
cancellations in part of the contract shall be effective only when the findings
referred to above are made known.
Article 20
Delegation
of power to approve technology transfer contracts :
The delegation of power to
approve of technology transfer contracts in accordance with article 18 of the
Ordinance is designed to create favorable condition for ensuring the timely
signing and implementation of the contracts.
1. The State Committee for
Science shall study, investigate, decide, approve of and issue licenses in
respect of the following contracts :
- Contracts worth more then one
million (1,000,000) US dollars (regardless of the source from which they are
paid);
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- Contracts of branches which
require national security guarantees such as national defense and interior
affairs; and
- Contracts which may have
exceptional consequences.
2. The Ministries, other State
Committees and bodies under the Council of Ministers, people's committees of
the provinces, towns and special zones under central authority shall, after
consulting the State Committee for Science, study, investigate, decide, approve
of and issue licenses in respect of the following contracts :
- Contracts worth less than one
million (1,000,000) US dollars which are financed by means other than the State
Treasury; and
- Contracts worth less than five
hundred thousand (500,000) US dollars which are financed by the State Treasury.
3. The approval of all
technology transfer contracts which are within the framework of foreign
investment shall take place in accordance with the articles contained in
Chapter V of this Decree.
Article 21
Registration
of contracts :
After a decision to approve and
grant a license in respect of a contract has been made, the Ministries or
Committees concerned shall, within two weeks, copy and send all relevant
documentation to the State Committee for Science.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Managing
and guiding the implementation of contracts :
The State Committee for Science
shall be responsible for managing, storing and classifying all technology
transfer contracts, for periodically informing all related bodies of matters
necessary for the creation of favorable conditions for the implementation of
contracts and for avoiding the import of any technology already in existence in
the country.
The Ministries and the
provincial people's committee shall monitor the performance of all technology
transfer contracts approved and shall inform the Foreign Trade Bank concerned
of matters necessary for the raising of foreign currency which is required
where payment is made by installments. This monitoring shall assist in
evaluating the standard of handling of the technology transferred, particularly
when extensions to contracts are being considered.
Chapter IV
RIGHTS AND OBLIGATIONS
OF THE CONTRACTING PARTIES IN THE TRANSFER OF TECHNOLOGY
Article 23
Taxes on
transfer of technology :
1. The transferor of technology shall
in accordance with the taxation laws of Vietnam in force at the time pay income
tax and import duty on all machinery and equipment which is related to the
transfer of technology.
2. In order to encourage the
transfer of foreign technology into Vietnam, the transferor shall be exempt
from all income tax for a period of three years from the date of promulgation
of this Decree.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
All
foreigners entering Vietnam for the purposes of studying, preparing for,
signing and implementing technology transfer contracts shall be considered to
be entering Vietnam in preparation for, and for the implementation of, and
investment project, and shall, accordingly, be entitled to benefit from all
regulations of the State of Vietnam on customs, immigration, residence,
communication and transport, in accordance with Chapter 10 of Decision No.
28-HDBT of the Council of Ministers dated 6 February 1991 which provides
detailed regulations for the implementation of the Law on Foreign Investment in
Vietnam.
Article 25
The
signatories to a technology transfer contract are obligated to implement
strictly its terms. All breaches of technology transfer licenses which occur
for reason of personal gain shall be punished in accordance with the laws of
Vietnam.
Chapter V
TECHNOLOGY TRANSFER IN
FOREIGN INVESTMENT
Article 26
The
following shall be considered to continue technology transfers in foreign
investment:
1. Technology transferred by a
foreign party in the form of capital contribution in whole or in part for the
establishment of an enterprise of joint venture enterprise with a Vietnamese
party in accordance with the Law on Foreign Investment in Vietnam.
2. Technology transferred by a
foreign party in the form of capital contribution in whole or in party to a
business co-operation contract entered into with a Vietnamese party in
accordance with the Law on Foreign Investment in Vietnam.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Technology
transfer contracts which form part of foreign investment shall be made
separately and included in the documents filed when an application is made for
an investment license.
Article 28
The State
Committee for Co-operation and Investment shall consider, investigate, decide
and issue investment licenses and shall also issue licenses in respect of
technology transfer contracts in foreign investment, after obtaining an
official written opinion from the State Committee for Science.
After the issue of licenses, the
State Committee for Co-operation and Investment shall copy and send to the
State Committee for Science the particular sections relevant to the technology
transfer contract.
Chapter VI
FINAL PROVISIONS
Article 29
This
Decree shall be of full force and effect as of the date of its promulgation.
Article 30
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 31
The
Chairman of the State Committee for Science shall be responsible for drafting
and submitting to the Council of Ministers all documents necessary for the
implementation of article 19 of the Ordinance on Technology Transfer.
Article 32
Ministers,
chairmen of State Committee, heads of bodies of the Council of Ministers and
chairmen of the people's committee of the provinces, cities and special zones
under central authority shall be responsible for the implementation of this
Decree.
FOR
THE COUNCIL OF MINISTERS
VICE CHAIRMAN
Vo Van Kiet