THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
17/2009/ND-CP
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Hanoi,
February 16, 2009
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DECREE
AMENDING
AND SUPPLEMENTING A NUMBER OF ARTICLES OF DECREE NO. 121/2007/ND-CP OF JULY 25,
2007, PROVIDING FOR OFFSHORE DIRECT INVESTMENT IN PETROLEUM ACTIVITIES
THE GOVERNMENT
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to the November 29, 2005 Investment Law;
At the proposal of the Minister of Industry and Trade,
DECREES:
Article 1. To amend and
supplement a number of articles of Decree No. 121/2007/ND-CP of July 25, 2007,
providing for offshore direct investment in petroleum activities as follows:
1. To add the following
Clause 5 to Article
"5. Executive means an
enterprise established by the investor under Clause 14, Article 1 of this
Decree, for implementing an offshore petroleum project."
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"1. Activities of
formulating a petroleum project are carried out by an investor in a foreign
country or in Vietnam to directly or indirectly support the formulation of an
offshore petroleum project, including:
a/ Researching into markets and
investment opportunities;
b/ Conducting field surveys;
c/ Reviewing documents;
d/ Collecting and purchasing
documents and information relating to the selection of the petroleum project;
e/ Conducting synthesization,
assessment and evaluation of the project, including selecting and hiring
consultants for project assessment and evaluation;
f/ Organizing and participating
in organizing seminars and symposiums;
g/ Establishing and operating
enterprises under Clause 14, Article 1 of this Decree, operating overseas
representative offices, liaison offices, branches and executive offices of the
investor related to the formulation of the petroleum project;
h/ Participating in
international bidding; paying deposits, security or other financial guarantees
as a bidding condition at the request of bid solicitors and
investment-receiving countries;
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j/ Purchasing and hiring assets
for the formulation of the offshore petroleum project;
k/ Other necessary activities."
3. To amend and supplement
Article 7 as follows:
"Article 7. Competence to
approve investment
1. The Prime Minister shall
approve investment in the following petroleum projects:
a/ Petroleum projects formed
under a petroleum contract funded with state capital of VND 3 trillion or more
or with other economic sectors' capital of VND 5 trillion or more.
b/ Petroleum projects formed
through transferring benefits earned from petroleum contract participation or
transferring part or the whole of a company funded with state capital of VND 5
trillion or more or with other economic sectors' capital of VND 8 trillion or
more.
2. For petroleum projects other
than those defined in Clause 1 of this Article, their owner representatives or
investors shall decide on the adjustment of their total investment in
accordance with Article 16 of Decree No 121/2007/ND-CP."
4. To add the following
Clause 5 to Article 9:
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5. To add the following
Clause 7 to Article 11:
"7. An authenticated copy
of the business registration certificate or enterprise founding decision of the
executive, and the authorization contract between the investor and executive,
in case the executive participates in the petroleum project."
6. To amend and supplement
Point a, Clause 1, Article 12 as follows:
"a/ The legal status of the
investor and executive;"
7. To amend and supplement
Clauses 4, 5 and 6, Article 12 as follows:
"4. For petroleum projects
falling within the investment-deciding competence of owner representatives or
investors, within 25 working days after receiving a complete and valid dossier,
the Ministry of Planning and Investment shall verify the petroleum project and
grant an investment certificate.
5. For petroleum projects formed
under petroleum contracts and falling within the approving competence of the
Prime Minister, within 20 working days after receiving a complete and valid
dossier, the Ministry of Planning and Investment shall submit to the Prime
Minister a verification report and opinions of concerned ministries and
branches, and suggestions on the project.
Within 5 working days after
getting the Prime Minister's investment approval, the Ministry of Planning and
Investment shall grant an investment certificate.
6. If finding through
verification that the project is ineligible for an investment certificate, the
Ministry of Planning and Investment shall notify such in writing, stating the
reasons for disapproval. The investor may lodge a complaint about such
disapproval in accordance with law."
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"Article 13. Shortening of
the verification time limit for the grant of investment certificates
Petroleum projects formed
through transferring benefits earned from petroleum contract participation or
transferring part or the whole of a company, and other petroleum projects for
which the investors can justify the request for urgent shortening of the
verification time limit shall be verified and granted investment certificates
as follows:
1. The investor shall send to the
Ministry of Planning and Investment and concerned ministries and branches a
request for shortening the verification time limit, enclosed with the dossier
as prescribed in Article 11 of Decree No. 121/2007/ND-CP and Clause 5, Article
1 of this Decree.
2. Within 5 working days after
receiving a valid dossier, the Ministry of Planning and Investment shall hold a
meeting with concerned ministries and branches to conduct verification and
grant an investment certificate instead of consulting ministries and branches
under Clauses 2 and 3, Article 12 of Decree No. 121/2007/ND-CP.
3. For petroleum projects
falling within the investment-deciding competence of owner representatives or
investors, within 3 working days after meeting with ministries and branches,
the Ministry of Planning and Investment shall grant an investment certificate,
except for projects which are found ineligible through dossier verification and
are disapproved. When finding through verification that a project is ineligible
for an investment certificate, the Ministry of Planning and Investment shall
notify such in writing, stating the reasons for disapproval. The investor may
lodge a complaint about such disapproval in accordance with law.
4. For petroleum projects
falling within the approving competence of the Prime Minister, within 3 working
days after meeting with ministries and branches, the Ministry of Planning and
Investment shall submit to the Prime Minister a verification report and
suggestions on the project.
Within 2 working days after getting
the Prime Minister's investment approval, the Ministry of Planning and
Investment shall grant an investment certificate.
5. The Ministry of Planning and
Investment shall send copies of the investment certificate to the Ministry of
Trade and Industry, the Ministry of Finance, the State Bank of Vietnam and the
provincial-level People's Committee of the locality where the investor makes
business registration (for institutional investors) or registers permanent
residence (for Vietnamese individual investors)."
9. To amend and supplement
Clause 1, Article 14 as follows:
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10. To amend and supplement
Clause 1, Article 15 as follows:
"1. A petroleum project
must be registered and granted a modified investment certificate if it is
adjusted in terms of form of investment, execution term, matters related to
investor and executive or total investment which, after being adjusted, will be
30% or more lower or higher than that stated in the investment certificate but
does not exceed VND 15 billion."
11. To amend and supplement
Clause 1, Article 16 as follows:
"1. A petroleum project
must be verified for the grant of a modified investment certificate if. after
being adjusted, its total investment will change 30% or more lower or higher
than that stated in its investment certificate and exceeds VND 15
billion."
12. To amend and supplement
Points d and e, Clause 3, Article 16 as follows:
"d/ For petroleum projects
formed under petroleum contracts and falling within the approving competence of
the Prime Minister and those, after adjustment, having total state investment
capital of VND 3 trillion or more or capital raised from various economic
sectors of VND 5 trillion or more, within 25 working days after receiving a
complete and valid dossier, the Ministry of Planning and Investment shall
submit to the Prime Minister a report on verification results, enclosed with
opinions of concerned ministries and branches and suggestions on the
modification of the investment certificate.
Within 5 working days after
getting the Prime Minister's written approval, the Ministry of Planning and
Investment shall grant a modified investment certificate.
e/ For petroleum projects other
than those defined at Point d, Clause 3 of this Article, the Ministry of
Planning and Investment shall verify the dossier and grant a modified
investment certificate within 25 working days after receiving a complete and valid
dossier."
13. To add the following
Article 16a:
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Petroleum projects formed
through transferring benefits earned from petroleum contract participation or
transferring part or the whole of a company, and other petroleum projects for
which the investors can justify the request for urgent shortening of the
verification time limit shall be verified and granted certificates as follows:
1. The investor shall send to
the Ministry of Planning and Investment and concerned ministries and branches a
request for shortening the verification time limit, enclosed with the dossier
as prescribed in Article 16 of Decree No. 121/2007/ND-CP.
2. Within 5 working days after
receiving a valid dossier, the Ministry of Planning and Investment shall hold a
meeting with concerned ministries and branches to conduct verification and
grant a modified investment certificate instead of consulting ministries and
branches under Clauses 2 and 3, Article 16 of Decree No. 121/2007/ND-CP.
3. For petroleum projects
falling within the investment-deciding competence of owner representatives or
investors, within 3 working days after meeting with ministries and branches,
the Ministry of Planning and Investment shall grant a modified investment
certificate, except for projects which are found ineligible through dossier
verification and are disapproved. When finding through dossier verification
that a project is ineligible for a modified investment certificate, the
Ministry of Planning and Investment shall notify such in writing, stating the
reasons for disapproval. The investor may lodge a complaint about such
disapproval in accordance with law.
4. For petroleum projects
falling within the approving competence of the Prime Minister and petroleum
projects with total investment, after adjusted, reaching the level falling
within the approving competence of the Prime Minister, within 3 working days
after meeting with ministries and branches, the Ministry of Planning and
Investment shall submit to the Prime Minister a verification report and
suggestions on the project adjustment.
Within 2 working days after
getting the Prime Minister's written approval, the Ministry of Planning and
Investment shall grant a modified investment certificate.
5. The Ministry of Planning and
Investment shall send copies of the investment certificate to the Ministry of
Trade and Industry, the Ministry of Finance, the State Bank of Vietnam and the
provincial-level People's Committee of the locality where the investor makes
business registration (for institutional investors) or registers permanent
residence (for Vietnamese individual investors)."
14. To amend and supplement
Article 19 as follows:
"Article 19. Establishment
of new legal persons and competence of executives
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2. If the investor authorizes
the executive to carry out the petroleum project, the executive shall be named
in the investment certificate granted to the investor under Articles 10, 12,
13, 15 and 16 of Decree No. 121/2007/ND-CP and Clause 13, Article 1 of this
Decree . The executive may use the investment certificate or modified
investment certificate in activities related to the project implementation. The
investor and executive shall be held responsible for the project implementation
in compliance with the investment certificate or modified investment
certificate and laws."
15. To amend and supplement
Article 21 as follows:
"Article 21. Termination
and liquidation of petroleum projects
1. Before terminating a
petroleum project, the investor shall report it to competent authorities
defined in Clause 3, Article 1 of this Decree for consideration and decision.
2. The procedures for
terminating an offshore petroleum project shall be carried out in accordance
with the related petroleum contract and the law of the investment-receiving
country."
16. To amend and supplement
Article 23 as follows:
"Article 23. Irrecoverable
expenses
When a petroleum project is
incapable of recovering expenses, the investor may account them as production
and business expenses within 5 years at most after completing the project. For
investors governed by the Government's Decree No. 142/2007/ND-CP of September
5, 207, promulgating the Regulation on financial management of the Parent
Company-Vietnam Petroleum Corporation, their petroleum projects which are
incapable of recovering expenses comply with Decree No. 142/2007/ND-CP, Decree
No. 121/2007/ND-CP and this Decree."
17. To amend and supplement
Clause 1,Article 24 as follows:
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a/ Reinvestment in the petroleum
project which has been granted an investment certificate or a modified one;
b/ Investment in other petroleum
projects in the investment-receiving country for which the investor has been granted
an investment certificate or a modified one."
18. To amend and supplement
Clause 2, Article 30 as follows:
"2. The investor may
transfer foreign currencies abroad before being granted an investment
certificate to cover expenses for the formation of an investment project under
Clause 2, Article 1 of this Decree."
19. To replace the
phrases "Ministry of Industry" and "Ministry of Trade" in
Decree No. 121/2007/ND-CP with the phrase "Ministry of Industry and
Trade."
20. To replace the word
"notarized" in Articles 9, 11, 15 and 16 of Decree No. 121/2007/ND-CP
with the word "authenticated".
Article 2. Effect
This Decree takes effect on
April 6, 2009.
Article 3. Implementation
responsibility
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ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung