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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
24/2000/ND-CP
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Hanoi,
July 31, 2000
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DECREE
DETAILING THE IMPLEMENTATION OF THE LAW ON FOREIGN
INVESTMENT IN VIETNAM
THE GOVERNMENT
Pursuant to the September 30, 1992 Law on
Organization of the Government;
Pursuant to the November 12, 1996 Law on Foreign Investment in Vietnam; and the
June 9, 2000 Law Amending and Supplementing a Number of Articles of the Law on
Foreign Investment in Vietnam;
At the proposal of the Minister of Planning and Investment,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Scope of application
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Foreign investment in industrial parks, export
processing zones and high-tech parks; foreign investment in the forms of
Build-Operate-Transfer (BOT) contracts, Build-Transfer-Operate (BTO) contracts
and Build- Transfer (BT) contracts; foreign investment in the fields of medical
examination and treatment, education and training, and scientific research
shall comply with this Decree and other relevant law provisions.
International credit activities, trade
activities and other indirect investment forms shall not be governed by this
Decree.
Article 2.- Subjects participating in investment cooperation
Subjects participating in investment cooperation
under the Foreign Investment Law shall include:
1. Vietnamese enterprises:
a) State enterprises set up under the State
Enterprises Law;
b) Cooperatives set up under the Cooperatives
Law;
c) Enterprises of political organizations,
socio-political organizations;
d) Limited liability companies, joint-stock
companies, partnerships, private enterprises set up under the Enterprise Law.
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3. Foreign investors.
4. Enterprises with foreign investment capital.
5. Overseas Vietnamese.
6. The State bodies competent to sign BOT, BTO
and BT contracts.
Article 3.- Lists and selection of investment projects
1. Issued together with this Decree:
a) The list of projects where investment is
especially encouraged;
b) The list of projects where investment is
encouraged;
c) The list of geographical areas where investment
is encouraged;
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e) The list of fields where investment is not
licensed.
Basing itself on the socio-economic development planning
and orientation in each period, the Ministry of Planning and Investment shall
coordinate with the ministries and the People’s Committees of the provinces and
centrally-run cities (hereinafter referred to as the provincial-level People’s
Committees) in submitting to the Prime Minister for consideration and
adjustment the above-said lists.
2. Investors may take initiative in selecting
the investment projects, the investment partners, form of investment,
geographical areas and duration of investment, markets for production
consumption, the legal capital contribution percentages, in accordance with the
provisions of the Foreign Investment Law and this Decree.
Article 4.- Governing laws
1. Subjects participating in investment
cooperation prescribed in Article 2 of this Decree shall have to comply with
the provisions of the Foreign Investment Law, this Decree and other relevant
provisions of Vietnamese laws.
2. For any specific case of foreign investment
in Vietnam which has not yet been prescribed by Vietnamese laws, the parties
may agree in the contracts on the application of foreign laws if such foreign
law application does not run counter to the basic principles of Vietnamese laws.
Article 5.- Useable language
The investment project dossiers and official
documents forwarded to the Vietnamese State bodies shall be made in Vietnamese
language or in Vietnamese and a common foreign language.
Chapter II
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Article 6.- Form of business cooperation contracts
A business cooperation contract is a document
concluded between two or more parties for investment and business in Vietnam,
which defines the responsibility of and divide business results to, each party,
without setting up a new legal person.
Business cooperation contracts in the field of
prospection, exploration and exploitation of oil and gas as well as a number of
other natural resources in the form of production-sharing contracts shall
comply with relevant law provisions and the Foreign Investment Law.
Article 7.- Contents of business cooperation contracts
A business cooperation contract must include the
following contents:
1. Names, addresses and competent
representatives of the parties to the business cooperation contract
(hereinafter called business cooperation parties); transaction address or
address of the place where the project is to be executed;
2. Business objectives and scope;
3. The contributions of the business cooperation
parties, the division of business results, the contract performance tempo;
4. Major products, their percentages for export
and domestic consumption;
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6. Rights and obligations of the business
cooperation parties;
7. Financial principles;
8. Procedures for amending, terminating the
contract, the conditions for assignment;
9. Liabilities for breaches of the contract,
mode of settling disputes.
Besides the above-mentioned contents, the
business cooperation parties may agree on other contents in the business
cooperation contract.
The business cooperation contract must be signed
on each page and fully at the end of the contract by the competent
representatives of the business cooperation parties. The business cooperation
contract shall take effect as of the date the investment license is granted.
Article 8.- The coordinating boards
In the business course, the business cooperation
parties, if deeming it necessary, may agree to set up a coordinating board for
the performance of the business cooperation contracts.
A coordinating board shall not be the leading
body of the business cooperation parties. Its functions, tasks and powers shall
be agreed upon by the business cooperation parties.
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Foreign parties may set up executive offices in
Vietnam to act as their representatives in the performance of business cooperation
contracts and shall take responsibility for the operation of their executive
offices.
The executive offices of the foreign parties to
the business cooperation contracts have their own seals, may open accounts,
recruit labor, sign contracts and conduct business activities within the scope
of rights and obligations prescribed in the investment licenses and the
business cooperation contracts.
The executive offices of the foreign parties to
the business cooperation contracts must make registration at the investment
licensing agencies.
Article 10.-
Business cooperation parties’ obligations to pay taxes
1. The foreign parties to the business
cooperation contracts shall perform tax obligations and other financial
obligations according to the Foreign Investment Law; the Vietnamese parties to
the business cooperation contracts shall perform tax obligations and other
financial obligations according to the legislation applicable to domestic
enterprises.
2. The enterprise income tax and other financial
obligations of the business cooperation parties (including land rent, natural
resource tax…) may be incorporated into the products shared to the Vietnamese
parties to the business cooperation contracts and the Vietnamese parties to the
business cooperation contracts shall have to pay them to the State.
Article 11.-
Form of joint-venture enterprises
1. Joint-venture enterprises are those set up in
Vietnam on the basis of joint-venture contracts signed between two or many
parties to carry out investment and business in Vietnam.
In special cases, joint-venture enterprises may
be set up on the basis of the agreements signed between the Vietnamese
Government and the Governments of other countries.
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a) Foreign investor(s);
b) Vietnamese enterprise(s);
c) Establishment(s) for medical examination and
treatment, education and training, or scientific research, which satisfy
conditions prescribed by the Government;
d) Overseas Vietnamese;
e) Joint-venture enterprise(s), enterprise(s)
with 100% foreign capital, which have already been set up in Vietnam.
3. Joint-venture enterprises shall be set up in
form of limited liability companies. Each joint-venture party shall bear
liability within the limit of its capital contributed to its enterprise’s legal
capital. Joint-venture enterprises shall have the legal person status under the
Vietnamese law, be set up and operate from the dates their investment licenses
are granted.
Article 12.-
Contents of the joint-venture contracts
A joint-venture contract must include the
following principal contents:
1. Names, addresses, competent representatives
of the joint venture parties; name and address of the joint-venture enterprise;
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3. The investment capital, the legal capital,
the legal capital contribution percentages, capital contribution mode and tempo
and the construction tempo;
4. Major products, their percentages for export
and domestic consumption;
5. The operating duration of the enterprise;
6. The enterprise’s representative at law;
7. Rights and obligations of the joint-venture
parties;
8. Financial principles;
9. Procedures for amending and terminating the
contract, the conditions for assignment, conditions for operation termination,
enterprise dissolution;
10. Liabilities for breaches of the contract,
mode of dispute settlement.
Besides the above-mentioned contents, the joint-venture
parties may agree on other contents in the joint-venture contract.
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Article 13.-
Joint-venture enterprises’ charters
The charter of a joint-venture enterprise must
include the following principal contents:
1. Name and address of the enterprise; names,
citizenship and addresses of the competent represen-tatives of the
joint-venture parties;
2. Business objectives and scope;
3. The investment capital, the legal capital,
the legal capital contribution percentages, mode and tempo;
4. The organizational structure for management
of the enterprise;
5. Procedures for adopting decisions of the
enterprise; dispute-settling principles;
6. The enterprise�s representative at
law;
7. Financial principles;
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9. Labor relations in the enterprise; matters
related to the employment and training of laborers;
10. Operating duration, conditions for operation
termination and enterprise dissolution;
11. Procedures for amending and/or supplementing
the enterprise’s charter.
Besides the above-mentioned contents, the
joint-venture parties may agree on other contents in the joint-venture
enterprise’s charter.
Joint-venture enterprises’ charters must be
signed on each page and at the end of the charters by competent representatives
of the joint-venture parties and shall be registered at the investment license-
granting agencies.
Article 14.-
Legal capital of joint-venture enterprises
1. The legal capital of a joint-venture
enterprise must represent at least 30% of its investment capital. For projects
on construction of infrastructure works, projects on investment in geographical
areas where investment is encouraged, forestation projects and large-scale
projects, this percentage may be lower, but not lower than 20% of the
investment capital and must be approved by the investment licensing agencies.
2. The percentage of capital contribution by the
foreign party or parties to the joint-venture shall be agreed upon by the
joint-venture parties, but must not be lower than 30% of the legal capital of
the joint-venture enterprise. Basing themselves on the business fields,
technology, market, business efficiency and other socio-economic benefits of
the projects, the investment license-granting agencies may consider and allow
the foreign parties to the joint-ventures contribute capital at a lower
percentage, but not lower than 20% of the legal capital.
Where a new joint-venture enterprise is
established, the percentage of legal capital contributed by foreign investor
must ensure the above-mentioned condition.
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Article 15.-
Legal capital contribution tempo
1. Legal capital contribution can be made in
lump sum when the joint-venture is set up or part by part according to the
legal capital contribution mode and tempo stipulated in the joint-venture
contract.
2. Where the joint-venture parties fail to make
the capital contribution according to the committed tempo without any plausible
reasons, the investment licensing agencies may withdraw the investment license.
Article 16.-
Legal capital contribution with the land use right value
The legal capital contribution with the land use
right value by the Vietnamese party shall be agreed upon by the joint-venture
parties on the basis of the land leasing prices decided by the provincial-level
People’s Committee within the price bracket issued by the Finance Ministry.
Article 17.-
Managing Board of a joint-venture enterprise
1. The Managing Board is the leading body of a
joint-venture enterprise. It consists of the chairman, vice-chairman and other
members.
The decision on the number of the Managing Board
members, the number of members from each joint-venture party, the nomination of
the Managing Board chairman, the appointment of the General Director and the first
deputy General Director shall comply with the provisions of the Foreign
Investment Law.
The chairman, vice-chairman and other members of
the Managing Board may concurrently act as the General Director, deputy General
Director or hold other posts in the joint-venture enterprise.
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3. Where a new joint-venture enterprise is set
up, the operating joint-venture enterprise party shall have at least 2 members
in the Managing Board and at least one of them is the Vietnamese citizen
representing the Vietnamese party to the joint venture.
4. The Managing Board members shall not enjoy
salary, but may enjoy allowances related to the Managing Board’s operation by
decision of the Managing Board. These expenses shall be accounted into the
management expenses of the joint venture enterprise.
Article 18.-
Meetings of the joint-venture enterprise’s Managing Board
1. The Managing Board meets at least once a
year. It may hold irregular meetings at the request of its chairman or of at
least 2/3 of its members or of the General Director or the first deputy General
Director. The Managing Board meetings shall be convened and presided over by
its chairman. The Managing Board chairman may authorize his/her deputy to
convene and preside over meetings of the Managing Board.
2. The Managing Board’s meeting must be attended
by at least 2/3 of its members representing the joint-venture parties. The
Managing Board members may authorize in writing their representatives to attend
meetings and vote on the authorized issues on their behalf.
3. The Managing Board shall adopt decisions
under its jurisdiction in form of voting at the meetings or gathering written
opinions.
Article 19.-
Rights and responsibilities of the Managing Board
chairman
The Managing Board chairman shall have the
rights and responsibilities:
1. To convene and preside over the meetings of
the Managing Board;
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Article 20.-
Rights and responsibilities of the General Director,
deputy-General Directors
1. The General Director and deputy General
Directors of a joint-venture enterprise shall manage and run daily activities
of the joint-venture enterprise. The General Director is the enterprise’s
representative at law, except otherwise provided for by the enterprise’s
Charter. The General Director or the first deputy General Director shall be
nominated by the Vietnamese party to the joint venture and be the Vietnamese
citizen permanently residing in Vietnam. Where the joint- venture enterprise
has only one deputy General Director, he/she shall be the first deputy General
Director.
2. The Managing Board shall define the powers
and tasks between the General Director and the first deputy General Director.
The General Director shall be accountable to the Managing Board for the
activities of the joint-venture enterprise. The General Director should
exchange ideas with the first deputy General Director on the implementation of
the resolutions of the Managing Board regarding a number of important issues
such as the organizational apparatus; the appointment and dismissal of key
personnel; the annual financial settlement, the final settlement of projects;
the conclusion of economic contracts.
Where there are the divergence of opinions
between the General Director and the first deputy General Director in
administering the activities of the enterprise, the General Director’s opinions
shall be decisive, but the first deputy General Director may reserve his/her
opinions for submission to the Managing Board for consideration and decision at
its nearest meeting.
3. Where the General Director is absent, the
first deputy General Director shall be authorized to represent the General
Director in administering the enterprise and takes responsibility before the
Managing Board and the General Director for his/her work.
Article 21.-
Form of enterprises with 100% foreign investment capital
Enterprises with 100% foreign investment capital
are those under the ownership of foreign investors and established in Vietnam
by foreign investors who manage the enterprises themselves and take
responsibility for the business results.
Enterprises with 100% foreign capital are
established in form of limited liability companies, which have the legal person
status under the Vietnamese laws, are set up and operate from the date they are
granted the investment licenses.
Article 22.-
Charters of enterprises with 100% foreign investment
capital
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1. Name and address of the enterprise; name and
address of the competent representative of the foreign investor;
2. The business objectives and scope;
3. The investment capital, the legal capital;
the mode and tempo of capital disbursement and the construction tempo;
4. The representative at law of the enterprise;
5. The financial principles;
6. The labor relations in the enterprise,
matters related to employment and training of laborers;
7. The operating duration, conditions for
contract termination and enterprise dissolution;
8. Procedures for amending and/or supplementing
the enterprise’s Charter.
Besides the above-mentioned contents, the
enterprise’s Charter may also contain other contents.
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Article 23.-
Legal capital of enterprises with 100% foreign
investment capital
1. The legal capital of an enterprise with 100%
foreign investment capital must represent at least 30% of its investment
capital. For projects on construction of infrastructure works, projects on
investment in geographical areas where investment is encouraged, forestation
projects and large-scale projects, this percentage may be lower but it must not
be under 20% of the investment capital and must be approved by the investment
licensing agencies.
2. The mode and tempo of legal capital
disbursement shall be stipulated in the enterprises’ Charters. Where a foreign
investor fails to disburse the legal capital according to the prescribed tempo
without any plausible reasons, the investment licensing agency shall be
entitled to withdraw the investment license.
3. The adjustment of investment capital and/or
legal capital shall be decided by foreign investors and approved by the
investment licensing agencies.
Article 24.- Representatives at law of the enterprises with 100% foreign
investment capital
The representatives at law of the enterprises
with 100% foreign investment capital shall be the General Directors, except
otherwise provided for by the enterprises’ Charters.
Chapter III
DEPLOYMENT OF PROJECTS
AND ORGANIZATION OF BUSINESS
Article 25.-
Personnel and the first session of the Managing Board of
a joint-venture enterprise
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1. Within 30 days after the granting of the
investment license, the parties to the joint venture shall inform each other of
the list of Managing Board members, nominate the chairman and vice-chairman of
the Managing Board.
2. Within 60 days after the granting of the
investment license, the Managing Board shall hold its first meeting to carry
out the following principal tasks:
a) Adopting the Regulation on operation of the
Managing Board;
b) Appointing the General Director, Deputy
General Directors and chief accountant (or Finance Director);
c) Determining in detail the tempo of legal
capital contribution by the joint-venture parties, the construction plan and
tempo.
3. The minutes of the first session of the
Managing Board shall be forwarded to the provincial/municipal Planning and
Investment Service of the locality where the joint-venture enterprise is
headquartered. For enterprises in the industrial parks, export-processing parks
or high-tech parks, such minutes shall be addressed to the Management Boards of
the industrial parks, export-processing zones or high-tech parks (hereinafter
referred collectively to as the Industrial Parks Management Boards) where the
projects are implemented.
4. The lists of the Managing Board members, the
General Director and deputy General Directors of joint-venture enterprises
shall be registered at the provincial/municipal Planning and Investment
Services; for enterprises in the industrial parks, export-processing zones or
high-tech parks, the above lists shall be registered at the Industrial Parks
Management Boards.
Article 26.-
Establishment and registration of the management
apparatuses of enterprises with 100% foreign investment capital and business
cooperation contracts
The establishment of the management apparatus
and nomination of personnel of enterprises with 100% foreign investment capital
shall be decided by the foreign investors.
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Article 27.-
Establishment announcement
After being appointed, the General Director of
the foreign-invested enterprise, and representatives of the business
cooperation parties shall publish on a central or local daily newspaper in
three consecutive issues the following principal contents:
1. Name and address of the enterprise or the
location for performance of the business cooperation contract; names and
addresses of branches, representative offices, executive offices (if any);
2. Names and addresses of the parties to the
joint-venture or the business cooperation, or foreign investors;
3. The representatives at law of the enterprise
or the business cooperation parties;
4. The serial number and date of issuance of the
investment license, the investment licensing agency, the operation duration of
the enterprise or the duration for performance of the business cooperation
contract;
5. The investment capital, the legal capital of
the enterprise; the percentage of capital contribution by each joint-venture
party and the capital committed to disburse by the business cooperation parties;
6. Operation objectives and scope.
Article 28.-
Business registration, practitioner’s certificate
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2. For domains or business lines which require
business licenses as stipulated by law, the foreign-invested enterprises or
business cooperation parties only need to register with the competent State
bodies for carrying out the business activities under the provisions in the
investment licenses without having to apply for the business licenses.
3. For domains and business lines which require
the practitioners’ certificates as stipulated, before commencing operation, the
foreign-invested enterprises and business cooperation parties must acquire the
practitioners’ certificates as provided for by law.
Article 29.-
Branches, representative offices
1. Foreign-invested enterprises and business
cooperation parties may open branches and/or representative offices outside the
provinces or cities where they are headquartered or at the major operating
locations of the business cooperation contracts in order to carry out business
activities according to the provisions in the investment licenses.
Where it is necessary to step up the export,
foreign-invested enterprises may open their branches or representative offices
overseas in order to carry out transaction, marketing and product-selling
activities. The establishment of overseas branches or representative offices
must be considered and approved by the Ministry of Planning and Investment.
2. The foreign-invested enterprises shall be
responsible for the operation of their overseas branches and/or representative
offices. The incomes of branches shall be included into the income of the
foreign-invested enterprises and must be annually transferred to their parent
companies in Vietnam and liable to the enterprise income tax at the rates
prescribed in the investment licenses. Where foreign-invested enterprises open
their branches in countries which have signed with Vietnam the agreements on
avoidance of double taxation, the provisions of such agreements shall apply.
3. The Ministry of Planning and Investment shall
guide the order and procedures to open branches and/or representative offices
of foreign-invested enterprises and business cooperation parties.
Article 30.-
Hiring of managerial organizations
1. For the fields of hotels, leased offices,
leased apartments, golf courses, sports, entertainment, medical examination and
treatment, education and training and a number of other fields which require
specialized management skills, foreign-invested enterprises and business
cooperation parties may hire managerial organizations to manage the business
activities.
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3. The management hiring shall be effected
through management contracts signed between foreign-invested enterprises and
managerial organizations. The management charges shall be agreed upon by the
parties in the management contracts, and accounted into the managerial expenses
of the enterprises or the business cooperation parties.
The management contracts shall take effect only
after they are approved by the investment license-granting agencies.
4. The managerial organizations shall operate in
the names and use the seals and accounts of foreign-invested enterprises, or
one or many business cooperation parties. The managerial organizations shall be
accountable to the foreign-invested enterprises or business cooperation parties
and abide by Vietnamese laws in the course of exercising their rights and
performing their obligations prescribed in the management contracts.
The managerial organizations shall have to pay
taxes and fulfill other financial obligations according to the provisions of
law. Foreign-invested enterprises or business cooperation parties shall have to
pay on behalf of the managerial organizations these amounts to the Vietnamese
State.
In all circumstances, the foreign-invested
enterprises and the business cooperation parties shall bear responsibility for
the entire operation of the managerial organizations before Vietnamese laws
regarding matters related to the management activities stated in the management
contracts. The managerial organizations shall bear responsibility before
Vietnamese law for their activities outside the scope of the management
contracts.
Article 31.-
Reorganization of enterprises
1. The division, separation, merger, consolidation
of enterprises, the change of investment forms (hereinafter referred
collectively to as reorganization of enterprises) must be approved by the
investment license- granting agencies.
A dossier requesting the reorganization of
enterprise shall include:
a) The written application for reorganization of
enterprise;
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c) The resolution of the Managing Board of the
joint venture or the agreement reached between the business cooperation parties;
d) The Charter of the new enterprise (except the
cases of conversion into Vietnamese enterprises);
e) The report on the enterprise’s financial
activities before the reorganization;
f) The exposition on the reorganization of the
enterprise;
g) The documents relating to the land use right;
h) Other documents when requested by the
investment license- granting agencies.
2. The exposition on the enterprise
reorganization shall contain the following principal contents:
a) Name and address of the representative at
law; names and addresses of the enterprises before and after the enterprise
reorganization;
b) Production and business objectives;
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d) The plan on settlement of rights and
obligations of the enterprises involved in the enterprise reorganization;
e) The time limit for implementation of the
enterprise reorganization.
3. Within 30 working days after the receipt of
complete and valid dossiers, the investment licensing agency shall issued a
decision to approve the enterprise reorganization in form of granting the
investment license. In case of non-approval, the investment licensing agency
must send a written reply clearly explaining the reasons therefor.
Article 32.-
Inheritance of rights and obligations after the enterprise
reorganization
After being granted the investment license for
enterprise reorganization, the new enterprise shall inherit all the rights and
obligations of the former enterprise according to the plan on settlement of
rights and obligations of enterprises stated in the exposition on the
enterprise reorganization stipulated in Clause 2, Article 31 of this Decree.
Article 33.-
Capital transfer
1. When transferring their capital,
foreign-invested enterprises and business cooperation parties shall register
the capital transfer with the investment licensing agencies.
2. The dossier of capital transfer registration
shall include:
a) The application for capital transfer
registration;
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c) The resolution of the Managing Board of the
joint-venture enterprise or the agreement of the business cooperation parties;
d) Amendments, supplements to the joint-venture
contract, the business cooperation contract, the enterprise’s Charter;
e) The report on the enterprise’s operation;
f) The legal status and financial situation of
the capital transferee in case the capital is transferred outside the
enterprise.
3. Within 15 working days after the receipt of
the dossier of capital transfer registration, the investment licensing agency
shall decide the adjustment of the investment license.
Article 34.-
Restructuring of the investment capital, the legal
capital
1. In the course of operation, foreign-invested
enterprises may restructure their investment capital and/or legal capital when
there appear changes in the objectives, project scale, partners, capital
contribution mode and other circumstances.
2. The restructuring of investment capital
and/or legal capital mentioned in Clause 1 of this Article must not reduce the
legal capital percentage to below the levels prescribed in Articles 14 and 23
of this Decree.
3. The restructuring of investment capital
and/or legal capital as well as the change of the percentages of capital
contribution by the joint-venture parties shall be decided by the Managing
Board of the enterprise and approved by the investment licensing agency.
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Where foreign investors commit to transfer
without compensation the property under their ownership to the Vietnamese State
or the Vietnamese parties upon the expiry of the operation term as provided for
in the investment licenses, the to-be transferred property must be in the state
of normal operation.
Where foreign-invested enterprises or business
cooperation contracts terminate their operation before schedule due to reasons
other than force majeure circumstances and if such termination alters the
commitment to non-compensation transfer, the foreign investors shall have to
compensate the preferences they have enjoyed thanks to the commitment to
non-compensation transfer.
Article 36.-
Temporary suspension of operation or prolongation of the
project implementation tempo
Where there are plausible reasons to temporarily
suspend operation or prolong the project implemen-tation tempo, foreign- invested
enterprises or business cooperation parties shall have to report it to the
investment licensing agencies. Except for force majeure cases, the temporary
suspension of operation or prolongation of the project implementation tempo
shall be effected only after it is approved by the investment licensing
agencies.
Upon the operation suspension or prolongation of
project implementation tempo, foreign-invested enterprises and business
cooperation parties may be entitled to the exemption or reduction of financial
obligations, depending on each specific case.
Article 37.-
Termination of operation, liquidation, dissolution of
enterprises
The termination of operation, liquidation or
dissolution of foreign-invested enterprises or business cooperation contracts shall
be effected in the following order:
1. The investment license-granting agencies
shall issue decisions to terminate the operation of foreign-invested
enterprises or business cooperation contracts in circumstances stipulated in
Article 52 of the Foreign Investment Law.
2. Foreign-invested enterprises and business
cooperation parties shall have to set up the Liquidation Board to liquidate the
enterprises’ property,
liquidate the business cooperation contracts.
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Article 38.-
Announcement on the operation suspension
Within 15 days from the date the investment
license-granting agencies issue the decisions on operation termination, the
foreign-invested enterprises or business cooperation parties shall have to
publish on a central or local newspaper for three consecutive issues the
termination of operation and liquidation of property of the enterprises, or the
liquidation of business cooperation contracts.
Article 39.-
Setting up of liquidation boards
1. Within 30 days from the date of expiry of the
operation duration or the date the decision on operation termination before
schedule takes effect, the Managing Boards of joint-venture enterprises or
foreign investors (for enterprises with 100% foreign investment capital) or
business cooperation parties shall have to set up the Liquidation Boards to
liquidate the property of enterprises or liquidate the business cooperation
contracts. The composition of the Liquidation Board shall be decided by the
Managing Board of the joint-venture enterprise, the foreign investors or
business cooperation parties.
2. Past the above-mentioned time limit, if the
Liquidation Board is not set up, the investment license-granting agency shall
issue a decision to set up the Liquidation Board in order to effect the
liquidation of the enterprise, the liquidation of business cooperation
contracts. The investment licensing agencies may invite representatives of
concerned agencies and organizations or experts, representatives of the
laborers and representatives of creditors to join the Liquidation Board.
3. The decision on setting up the Liquidation
Board mentioned in Clauses 1 and 2 of this Article must clearly define the
composition, functions, tasks, powers and operation fund of the Liquidation
Board and shall be sent to the joint-venture parties, members of the Managing
Board of the joint-venture enterprise, foreign investors, the business
cooperation parties.
Article 40.-
Powers and tasks of the Liquidation Boards
1. The Liquidation Board is a body assisting the
Managing Board of the joint-venture enterprise, foreign investors, and/or
business cooperation parties in liquidating the enterprise, the business
cooperation contract. The Liquidation Board may use the seal of the enterprise
or of the Vietnamese party to the business cooperation contract in service of
the liquidation.
2. In the course of liquidation, the Liquidation
Board shall have the rights:
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b) In case of necessity, to invite Vietnamese or
foreign organizations and/or experts to audit and expertise machinery,
equipment and workshops, and determine the remaining value of the enterprise or
the business cooperation contract.
3. The Liquidation Board shall have the tasks:
a) To inform the creditors and concerned
organizations in writing of the liquidation of the enterprises, the liquidation
of business cooperation contracts;
b) To determine the value of assets under the
lawful ownership of enterprises or the business cooperation contracts;
c) To determine the financial obligations
already fulfilled towards the State;
d) To determine amounts to be recovered, to be
paid;
e) To draw up liquidation plans for approval by
the Managing Boards of the joint-venture enterprises, foreign investors or business
cooperation parties;
f) To realize the liquidation plans already
approved;
g) To make reports on liquidation results and
submit them to the Managing Boards of joint-venture enterprises, the foreign
investors, or the business cooperation parties.
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In the course of liquidation, foreign-invested
enterprises or business cooperation parties shall have to settle the
obligations in the following order of priority:
1. The expenses related to the liquidation
activities;
2. Wages, social insurance expenses, which are
still owed by the enterprises or business cooperation parties;
3. Taxes and other financial obligations of the
enterprises or business cooperation parties towards the Vietnamese State;
4. Debts;
5. Other obligations of the enterprises or the
business cooperation parties.
Article 42.-
Operation duration of the Liquidation Board
1. The operation duration of the Liquidation
Board shall not exceed 12 months from the date of its establishment.
2. Upon the expiry of the operation duration,
even if the liquidation is not yet terminated, the Liquidation Board shall
terminate its operation; for such case, the joint-venture parties, the foreign
investors or the business cooperation parties shall settle by themselves
matters which have not yet been handled. In case of dispute, the settlement
thereof shall comply with the provisions in Article 122 of this Decree.
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Assets of foreign-invested enterprises and
assets used for the performance of business cooperation contracts shall be
liquidated by mode agreed upon by the parties.
In cases where the Vietnamese parties contribute
capital with the land use right value, when the operation terminates, the land
use right value of the remaining duration shall belong to the liquidation
assets of the enterprises.
Article 44.-
Procedures for settlement when enterprises fall into the
state of bankruptcy
In the course of liquidation, if there are enough
factors to determine that enterprises fall into the state of bankruptcy, the
Liquidation Boards shall have to report such to the investment licensing
agencies so as to terminate the liquidation and shift to the settlement
according to the bankruptcy procedures stipulated in the legislation on
enterprise bankruptcy.
Chapter IV
TAX - FINANCE MATTERS
Article 45.-
The enterprise income tax rates
Foreign-invested enterprises and business
cooperation parties shall pay the enterprise income tax at the rate equal to
25% of the earned profits, except cases prescribed in Article 46 of this Decree.
For the fields of prospection, exploration and
exploitation of oil and gas as well as a number of other rare and precious
natural resources, the enterprise income tax rates shall comply with the
provisions of the Petroleum Law and the relevant legislation.
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The preferential enterprise income tax rates
shall apply as follows:
1. 20% for projects which meet one of the
following criteria:
a) They are industrial park enterprises
operating in the field of services;
b) The production projects not falling under the
project categories mentioned in Article 45 and Clauses 2 and 3 of this Article.
2. 15% for projects which meet one of the
following criteria:
a) They are on the list of projects with
investment encouragement;
b) The investment is made in geographical areas
with difficult socio-economic conditions;
c) They are service enterprises in
export-processing zones;
d) They are industrial park enterprises which
export more than 50% of their products;
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3. 10% for projects which meet one of the following
criteria:
a) They meet two of the criteria mentioned in
Clause 2 of this Article;
b) They are on the list of projects where
investment is particularly encouraged;
c) They invest in geographical areas with
particularly difficult socio-economic conditions on the list of geographical
areas where investment is encouraged;
d) They are enterprises developing
infrastructure in industrial parks, export processing zones, hi-tech parks;
export-processing enterprises;
e) They are in the fields of medical examination
and treatment, education and training, and scientific research.
4. The duration of application of preferential
enterprise income tax rates is stipulated as follows:
a) The preferential enterprise income tax rates
mentioned in this Article shall be applied throughout the period of investment
project implementation, to projects which meet one of the following criteria:
- They are on the list of projects where
investment is encouraged;
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- They are for the development of
infrastructures in industrial parks, export-processing zones, hi-tech parks;
- They are for investment in industrial parks,
export-processing zones or hi-tech parks;
- They are in the fields of medical examination
and treatment, education and training, scientific research.
b) The enterprise income tax rate of 10% shall
be applied for 15 years after the projects start their production and business
operations, except the projects prescribed at Point a, Clause 4 of this Article.
c) The enterprise income tax rate of 15% shall
be applied for 12 years after the projects start their production and business
operation, except the projects prescribed at Point a, Clause 4 of this Article.
d) The enterprise income tax rate of 20% shall
be applied for 10 years after the projects start their production and business
operations, except the projects prescribed at Point a, Clause 4 of this Article.
5. After the period of enjoying the preferential
enterprise income tax rates mentioned at Points b, c and d, Clause 4 of this
Article, the projects shall pay an enterprise income tax at the rate of 25%.
6. Overseas Vietnamese investing in the country
under the Foreign Investment Law shall be entitled to the 20% reduction of the
enterprise income tax as compared with projects of the same type, except cases
of enjoying the tax rate of 10%.
Article 47.-
Projects not entitled to preferential enterprise income
tax rates
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Article 48.-
Enterprise income tax exemption and reduction
The enterprise income tax exemption and
reduction shall be applied as follows:
1. The projects mentioned in Clause 1, Article
46 of this Decree shall enjoy the enterprise income tax exemption for 1 year
after the profits are generated from business and 50% reduction for 2
subsequent years.
2. The projects mentioned in Clause 2, Article
46 of this Decree shall enjoy the enterprise income tax exemption for 2 years
after the profits are generated from business and the 50% reduction for 3
subsequent years.
3. The projects mentioned in Clause 3 of Article
46 of this Decree and the projects for investment in geographical areas where
investment is encouraged shall enjoy the enterprise income tax exemption for 4
years after the profits are generated from business and the 50% reduction for 4
subsequent years, except the projects which are exempt from enterprise income
tax for 8 years.
4. The BOT, BTO and BT enterprises investing in
geographical areas on the list of those enjoying investment encouragement; the
hi-tech industrial enterprises; the hi-tech service enterprises in hi-tech
parks; forestation projects and infrastructure construction and business
projects in geographical areas meeting with particularly difficult
socio-economic conditions; large-scale projects exerting great socio-economic
impacts and being on the list of projects where investment is especially
encouraged shall be entitled to enterprise income tax exemption for 8 years
after the business activities yield profits.
5. The tax exemption and reduction duration shall
be calculated consecutively from the first year when the business activities
yield profits.
6. The above-said enterprise income tax
exemption and reduction shall not apply to projects on hotels, offices and
apartments for lease (except cases of investment in geographical areas where
investment is encouraged or of non-compensation property transfer to the
Vietnamese State upon the expiry of operation duration), projects for
investment in the fields of finance, banking, insurance, commerce, service
provision (except projects in industrial parks, export processing zones,
hi-tech parks).
Article 49.-
Adjustment of preferential tax rates and enterprise tax
exemption or reduction duration
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2. The Finance Ministry shall decide the tax
exemption and reduction according to the current regulations for cases of
meeting with difficulties in the course of business due to natural calamities,
fires or other force majeure circumstances.
Article 50.-
Tax on profit transfer abroad
1. The profits earned by foreign investors from
their investment in Vietnam (including the enterprise income tax refunded due
to reinvestment and the profits earned from capital transfer), if transferred
abroad or retained outside Vietnam, shall all be liable to tax on profit
transfer abroad.
2. The overseas profit transfer tax rates shall
apply as follows:
a) 3% of the profit transferred abroad for:
- Overseas Vietnamese investing in the country
under the Foreign Investment Law;
- Foreign investors investing in industrial
parks, export processing zones or hi-tech parks;
- Foreign investors contributing legal capital
or capital for performance of the business cooperation contracts, which is
valued at USD 10 million or more;
- Foreign investors investing in geographical
areas which have particularly difficult socio-economic conditions and are on
the list of areas where investment is encouraged.
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c) 7% of the profit transferred abroad for
foreign investors who have contributed legal capital or capital for the
performance of business cooperation contracts in cases other than those
prescribed at Points a and b of Clause 2 of this Article.
3. The profit transfer tax shall be collected
upon each transfer of profit.
4. Where foreign investors have already paid tax
for transfer of their profits abroad, but later have not transferred their
profits abroad, the already paid tax amounts shall be refunded.
Article 51.-
Enterprise income tax reimbursement in case of
reinvestment.
1. Foreign investors who use their profits and
other lawful incomes from their investment activities in Vietnam for
reinvestment in projects being executed or investment in new projects according
to the Foreign Investment Law shall be refunded a part or whole of the paid enterprise
income tax on the reinvested profit amounts (except cases prescribed in the
Petroleum Law), if they meet the following conditions:
a) Reinvestment in projects entitled to
enterprise income tax preferences stated in Article 46 of this Decree;
b) The reinvested capital shall be used for 3
years or more;
c) Having fully contributed legal capital or
capital for the performance of the business cooperation contracts inscribed in
the investment licenses.
2. The reimbursement levels of enterprise income
tax on profits reinvested in Vietnam are prescribed as follows:
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b) 75% if they are reinvested in projects
entitled to the enterprise income tax rate of 15%;
c) 50% if they are reinvested in projects
entitled to the enterprise income tax rate of 20%.
3. When having the need to use their profits for
reinvestment, foreign investors shall compile and send their dossiers to the
Finance Ministry for consideration of the enterprise income tax reimbursement.
Such a dossier shall include:
a) The application for enterprise income tax
reimbursement due to reinvestment;
b) The commitment to use the profits for
reinvestment for 3 years or more;
c) The commitment of the Managing Board of
joint-venture enterprise, the foreign investor or business cooperation parties
that the foreign investor has fully contributed the legal capital or the
capital for the performance of the business cooperation contract;
d) The copy of the investment license;
e) The tax office�s written
certification of the already paid enterprise income tax amount.
4. Within 15 working days after the receipt of
complete and valid dossiers, the Finance Ministry shall notify its decisions to
the applying foreign investors; in case of approval, the foreign investors
shall fill in the procedures for enterprise income tax reimbursement for their
profit amounts used for reinvestment. Past the above-mentioned time limit, if
the case is yet to be approved or is rejected, the Finance Ministry shall
notify the foreign investor thereof in writing and clearly state the reasons
therefor.
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Article 52.-
Enterprise income tax on capital transfer
The capital transfer shall comply with the
provisions in Article 33 of the Foreign Investment Law and be liable to tax
according to the following provisions:
1. Where the capital transfer yields profits,
the transferors shall pay the enterprise income tax at the rate of 25% of the
earned profits.
2. The taxable profit is equal to the transfer
value minus the initial value of the transferred capital, minus the transfer
expenses (if any).
Where foreign investors later continue to
transfer their capital, the initial value of the capital on each subsequent
transfer shall be determined as being equal to the transfer value of the
preceding transfer contract plus the value of the additionally contributed
capital amount (if any).
3. After the investment licensing agencies
certify the registration of the capital transfer contracts through the
readjustment of investment licenses, the capital transferors or their
authorized persons shall have to submit to the local tax offices the
declaration on capital transfer activities, enclosed with the relevant dossiers
according to the tax offices’
regulations.
Article 53.-
Tax calculation year
The tax calculation year for foreign- invested
enterprises and business cooperation parties shall commence on January 1 and
end on December 31 of the calendar year.
Foreign-invested enterprises and business
cooperation parties may request the Finance Ministry’s
permission for the application of their own 12-month fiscal year for the
calculation and payment of enterprise income tax.
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The profit liable to enterprise income tax shall
be the difference between the total revenues and the total expenditures plus
other extra profits in the tax calculation year minus the loss amount to be
carried forward according to the provisions in Article 40 of the Foreign
Investment Law. The profit liable to enterprise income tax shall include the
taxable profits of the main establishment plus the taxable profits of the
affiliate establishments (if any) of an enterprise.
The determination of profits liable to
enterprise income tax shall comply with the provisions in Article 9 of the
Enterprise Income Tax Law. The foreign-invested enterprises and business
cooperation parties may include in their expenditures the expenses certified by
tax offices as reasonable expenses in support of Vietnamese organizations
and/or individuals for charity and humanitarian activities.
Article 55.-
Carrying forward of losses
In the course of operation, if foreign-invested
enterprises or business cooperation parties suffer losses after settling taxes
with the tax offices, they are entitled to carry forward their losses to the
following year, and such loss amounts shall be subtracted from the taxable
income. The duration for carrying forward losses shall not exceed 5 years.
Article 56.-
Deduction for establishment of funds of enterprises
After paying the enterprise income tax and
fulfilling other financial obligations, the foreign-invested enterprises may
deduct the remaining profits for setting up the reserve fund, welfare fund,
production expansion fund and other funds as decided by the enterprises.
Article 57.-
Import tax exemption for imported goods
1. Foreign-invested enterprises and business
cooperation parties shall be exempt from import tax for goods imported to
create fixed assets, including:
a) Equipment and machinery;
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c) Components, details, spare parts,
accessories, assembly supports, molds, auxiliaries accompanying equipment,
machinery, special-use transport and conveyance means prescribed at Point b of
this Clause;
d) Raw materials and materials imported for
manufacture of equipment and/or machinery in the technological chains or the
manufacture of components, details, spare parts, accessories, assembly
supports, molds, auxiliaries accompanying equipment and/or machinery;
e) Construction materials which can not be
produced at home yet.
2. Raw materials and materials imported for the
implementation of BOT, BTO and/or BT projects; plant varieties, animal breeds
and special-type agricultural drugs permitted to be imported for implementation
of agricultural, forestry or fishery projects shall be exempt from import tax.
3 The import tax exemption for import goods
mentioned in Clauses 1 and 2 of this Article shall also apply to cases of
project expansion, technological replacement and renewal.
4. Foreign-invested enterprises and business
cooperation parties investing in the fields of hotel, office and apartment for
lease, dwelling houses, trade centers, technical services, supermarkets, golf
courses, tourist sites, sports complexes, rest and recreation areas, medical
examination and treatment establishments, training, culture, finance, banking,
insurance, audit, consulting services shall also be entitled to the tax
exemption under the provisions in Clauses 1 and 3 of this Article, excluding
equipment only enjoying single import tax exemption according to provisions of
the Appendix to this Decree.
5. Foreign-invested enterprises and business
cooperation parties investing in the projects on the list of projects where
investment is particularly encouraged or in geographical areas with
particularly difficult socio-economic conditions prescribed in Appendices to
this Decree shall be exempt from import tax on production raw materials for 5
years after the commencement of production.
6. Foreign-invested enterprises and business
cooperation parties investing in the production of components, mechanical,
electrical and/or electronic accessories shall be exempt from import tax on
production raw materials for 5 years after the commencement of production.
7. Raw materials, spare parts, accessories and
materials imported for the production of export goods shall be exempt from
import tax.
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9. Basing itself on the investment licenses, the
technical- economic expositions and technical designs of projects, the Trade
Ministry or the agency authorized thereby shall decide the list of import
duty-free goods. The above-mentioned import goods must not be sold in the
Vietnamese market. In necessary cases where they are sold in the Vietnamese
market, the approval of the Trade Ministry is required and relevant taxes must
be paid according to law provisions.
Article 58.-
Import tax on raw materials and materials imported for
the production of export goods and on raw materials for the production of
products sold to export goods- producing enterprises
1. Foreign-invested enterprises and business
cooperation parties producing export goods may postpone the payment of import tax
on raw materials and materials imported for the production of export goods for
a duration prescribed in the Export Tax and Import Tax Law. For several kinds
of products exported due to the production requirement or production cycles,
the time limit for tax payment postponement shall be decided by the Finance
Ministry.
Past the above-said time limit, foreign-invested
enterprises and/or business cooperation parties shall have to pay the import
tax and when exporting their finished products, they shall be refunded the
import tax on the imported raw materials and/or materials at the rate
corresponding to the rate of exported finished products.
2. Foreign invested enterprises and business
cooperation parties which sell their products to other enterprises for direct
production of export products shall be exempt from import tax on raw materials
corresponding to these products.
Article 59.-
Import tax calculation prices
Prices for calculation of import tax on import
goods liable to import tax shall be determined according to the prices
inscribed in the import goods invoices. Where such invoices are not available,
the import tax calculation prices shall be determined according to the Finance
Ministry�s regulations.
Article 60.- Value added tax
1. Foreign-invested enterprises and business
cooperation parties may postpone the payment of value added tax on raw
materials and materials imported for the production of export goods within the
time limit for the postponement of import tax payment prescribed by the Export
Tax and Import Tax Law.
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a) Equipment, machinery and special-use
transport means included in the technological chains, which cannot be produced
in the country yet and are imported to create fixed assets of the
foreign-invested enterprises or to perform business cooperation contracts;
Where the complete import equipment and
machinery chains are not liable to value added tax but include types of
equipment and machinery which can be produced at home, the value added tax
shall not be imposed on such complete equipment and machinery chains;
b) The construction materials which can not been
produced at home yet and are imported to create fixed assets of foreign-invested
enterprises or to perform business cooperation contracts;
c) Materials imported for the production of
products to be supplied to enterprises directly engaged in the manufacture of
export products.
Article 61.-
Fixed asset depreciation
Foreign-invested enterprises and business
cooperation parties shall make the fixed asset depreciation according to the
Finance Ministry�s regulation.
Chapter V
ACCOUNTING, STATISTICAL
AND INSURANCE REGIMES
Article 62.-
Accounting, auditing and statistical work
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2. Foreign-invested enterprises and foreign
parties to business cooperation contracts shall comply with the accounting
regime of Vietnam.
Where there are plausible reasons for the
application of common foreign accounting regimes, such application must be
approved by the Finance Ministry.
3. The foreign business cooperation parties
shall make book entries according to the contents suitable to each type of
business cooperation.
Article 63.-
Measurement and currency units, accounting and
statistical recording
1. The measurement units used in accounting and
statistical work are the official measurement units of Vietnam. Other
measurement units must be converted into official measurement units of Vietnam.
2. The currency unit used in accounting and
statistical recording is Vietnam dong. In case of necessity, foreign-invested
enterprises and foreign business cooperation parties may request the Finance
Ministry to approve the use of foreign currency unit(s).
3. The accounting and statistical recording
shall be effected in Vietnamese or both Vietnamese and a common foreign
language.
Article 64.-
Financial reports
Foreign-invested enterprises and foreign
business cooperation parties shall have to forward their annual financial
reports to the investment licensing agencies, the Ministry of Planning and
Investment, the Finance Ministry and the General Department of Statistics
within 3 months as from the end of their fiscal years.
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The auditing companies shall have to take
responsibility before law for the independence, objectiveness and truthfulness
of the auditing results.
The audited financial reports of
foreign-invested enterprises and foreign business cooperation parties can be
used as bases for determination and settlement of tax obligations as well as
other financial obligations toward the Vietnamese State.
Article 65.-
Regulations on insurance
1. Foreign-invested enterprises and foreign
business cooperation parties shall effect the insurance on the basis of the
insurance contracts signed with insurance companies licensed to operate in
Vietnam according to the provisions of law.
2. Foreign-invested enterprises and foreign
business cooperation parties shall effect the voluntary and compulsory
insurance according to the provisions of law.
The insured subjects shall include human being,
property, civil liability and other objects prescribed by law.
Chapter VI
FOREIGN EXCHANGE
MANAGEMENT
Article 66.-
Opening of accounts
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In special cases, for a number of projects with
urgent demand, foreign-invested enterprises may open accounts at banks overseas
after they obtain the approval of the Vietnam State Bank. The enterprises shall
have to report to the Vietnam State Bank on the situation on the use of
accounts opened abroad. The opening, use and closure of accounts of enterprises
shall comply with the regulations of the Vietnam State Bank.
Article 67.-
Regulation on ensuring foreign currencies
1. Foreign-invested enterprises and foreign
business cooperation parties are entitled to buy foreign currency(ies) at
commercial banks licensed to deal in foreign currencies so as to meet the
current transactions and other licensed dealings according to legislation on
foreign exchange management.
2. For particularly important projects with
investment made under the Government’s
programs in each period, the Prime Minister shall decide the balance of foreign
currency(ies) for foreign-invested enterprises and foreign business cooperation
parties, which is specified in the investment licenses.
3. The Vietnamese Government ensures the support
in balancing foreign currency(ies) for foreign-invested enterprises and
business cooperation parties that invest in infrastructure construction and a
number of other important projects in cases where the commercial banks fail to
fully satisfy the foreign currency demands stated in Clause 1 of this Article.
Article 68.-
Transfer of revenues abroad by foreign investors
1. After fulfilling their tax obligations,
foreign investors may transfer abroad:
a) Profits earned from business activities,
revenues divided to them;
b) Revenues from service provision and technology
transfer;
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d) Investment capital;
e) Other money amounts and assets under their
lawful ownership.
2. Upon the termination of operation and dissolution
of their enterprises, foreign investors are entitled to transfer abroad the
assets under their lawful ownership.
3. Where the amount transferred abroad as
provided for in Clause 2 of this Article is larger than the initial capital and
reinvestment capital, the difference thereof shall be transferred abroad only
after it is approved by the investment licensing body.
Article 69.-
Transfer of foreigners’
incomes abroad
Foreigners working in the foreign-invested
enterprises or under the business cooperation contracts shall be entitled to
transfer abroad their salaries and other lawful incomes in foreign
currency(ies) after having paid the income tax and other expenses.
Article 70.-
Exchange rates
The rates for conversion of foreign currencies
into Vietnamese currency and vice versa applicable in the process of
investment, production and business of foreign-invested enterprises and
business cooperation parties shall comply with the regulations of the Vietnam
State Bank at the time of conversion.
Chapter VII
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Article 71.-
Registration of import plans
1. Within 60 days after being granted the
investment licenses, the foreign-invested enterprises and business cooperation
parties shall register their plans for the import of machinery, equipment,
accessories, supplies, raw materials’
for the entire period of the project’s
capital construction, or the annual import thereof according to the
construction and installation tempo. The import plans may be supplemented or
adjusted at the beginning of the first month of each quarter and each year in
accordance with the capital contribution schedule, the construction tempo and
the production/business programs.
2. Basing themselves on the investment licenses,
the economic-technical expositions and the technical designs of the projects,
the agencies authorized by the Trade Ministry shall, within 15 days after the
receipt of complete dossiers, approve the import plans for each project. Past
the above time limit, if the plans are not yet approved, the agencies
authorized by the Trade Ministry shall have to notify in writing the
enterprises and/or business cooperation parties thereof, clearly stating the
reasons therefor.
3. Under the same commercial conditions, foreign-invested
enterprises and business cooperation parties are encouraged to buy goods in
Vietnam instead of importing them.
Article 72.-
Requirements on import equipment, machinery, supplies
Equipment, machinery and supplies imported into
Vietnam for execution of investment projects must ensure their standards,
qualities and conformity with the production, environmental protection and
labor safety requirements stated in the economic-technical expositions,
technical designs as well as the compliance with the regulations on import of
equipment and machinery.
Except the used equipment and machinery listed
for import ban, the foreign-invested enterprises and business cooperation
parties may decide and take responsibility for the economic-technical
efficiency of the import of used equipment and machinery, and ensure the
technical as well as environmental protection requirements as prescribed by the
Ministry of Science, Technology and Environment.
Article 73.-
Expertise of imported equipment and machinery
1. Equipment and machinery imported to execute
investment projects must be expertised in terms of their value and quality
before they are imported or installed, except equipment and machinery procured
through bidding.
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3. Organizations performing the expertise of
imported equipment and machinery shall be the expertising companies licensed to
operate in Vietnam, Vietnamese State bodies with expertising function or
expertising companies in foreign countries for the expertise of equipment and
machinery before they are imported. The investors shall have to supply to the
investment licensing agencies the information on the expertising companies they
have chosen.
The expertising organizations shall have to take
legal and material liabilities for the expertising results. Where the value of
the expertised equipment and machinery is lower than the value reported by the
investor, the investor shall have to readjust the implemented value according
to such results. If any fraud is detected, the sinner shall be handled
according to law, depending on the seriousness of the violation.
4. In case of necessity, the investment license-
granting agencies may request the re-expertise of the value of imported
equipment and machinery.
Article 74.-
Financial leasing/purchase and renting of equipment or
machinery
1. For a number of projects with special requirements,
foreign-invested enterprises and business cooperation parties may rent
equipment and machinery in the country and/or abroad for the execution of
projects.
2. Where foreign-invested enterprises or
business cooperation parties make the financial leasing/purchase of equipment
and machinery to create their fixed assets, they shall be exempt from import
tax.
3. Where foreign-invested enterprises or
business cooperation parties rent equipment and machinery to carry out
production and business activities, they shall have to comply with the
following regulation:
a) They may rent only equipment and/or machinery
not yet included in the technological chains registered in the
economic-technical expositions, as well as molds and accompanying accessories
for production in a given period;
b) The equipment and machinery hired from
overseas must be re-exported upon the expiry of the leasing duration.
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Enterprises are entitled to account the
equipment and machinery renting expenses into their business costs, must
neither make the depreciation for the hired equipment and machinery nor
calculate the value of rented property into the value of their own property.
The rented equipment and machinery, during the
leasing term, shall not be considered the property of the leasing parties when
the procedures for the enterprise dissolution or bankruptcy are carried out.
Article 75.-
Processing and re-processing
Foreign-invested enterprises and business
cooperation parties may carry out activities of product processing or
reprocessing according to the objectives prescribed in the investment licenses,
concretely:
1. Undertaking the product processing abroad;
2. Undertaking the product processing at home;
3. Ordering the domestic processing of a product
part or a number of details which cannot be produced by the machinery,
equipment or technological chains.
Article 76.-
Goods export
Foreign-invested enterprises and business
cooperation parties may directly export or entrust the export of their
products, and may undertake the entrusted export according to law provisions.
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Except goods on the list of goods banned from
export and the list of goods subject to conditional export, foreign-invested
enterprises and business cooperation parties may directly purchase goods and
products in the Vietnamese market for export processing or for export according
to the regulations of the Trade Ministry.
Article 77.-
Sale of products in the Vietnamese market
For products sold in the Vietnamese market,
foreign-invested enterprises may sell them directly or through sale agents
without restriction on the sale areas. Enterprises may act as sale agents for
other enterprises which have the same types of products made in Vietnam.
The sale prices of products shall be decided by
the enterprises. For goods and services subject to the uniform price control by
the State, the sale prices shall comply with the price brackets announced by
competent State bodies.
Article 78.-
Sale of products of export processing enterprises into
the Vietnamese market
The export processing enterprises may sell into
domestic markets their own products, including:
1. Raw materials, semi-finished products, to
enterprises directly engaged in the production of export goods;
2. Goods with domestic demand for import;
3. Discarded materials and faulty products,
which still have commercial value.
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Article 79.-
Tax-guarantee warehouse
Foreign-invested enterprises producing export
goods may set up tax-guarantee warehouses at the enterprises. Goods deposited
into tax-guarantee warehouses are not liable to import tax payment.
Enterprises wishing to set up tax-guarantee
warehouses must satisfy the following conditions and carry out the following
procedures:
1. Exporting at least 50% of their products;
2. Goods transported from the tax-guarantee
warehouses into the production establishments must be registered and subject to
customs supervision;
3. Goods put into tax-guarantee warehouses must
not be sold on the Vietnamese market. Where the Trade Ministry permits the sale
thereof on the Vietnamese market, the enterprises shall have to pay import tax
and other taxes according to the provisions of law;
4. If goods deposited in tax-guarantee
warehouses get damaged and deteriorate thus failing to meet the production
requirements, they must be re-exported or destroyed. The destruction thereof
must comply with the regulations and be subject to the supervision by the Customs
Office, Tax Office and Environment Office.
The General Department of Customs shall base
itself on the above regulations to guide the granting of permits for the
establishment of tax-guarantee warehouses at foreign-invested enterprises and
manage and supervise the activities of tax-guarantee warehouses.
Article 80.-
Protection and encouragement of technology transfer
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a) Technologies which create new and necessary
products in Vietnam or produce export goods;
b) Technologies which raise the technical
properties, quality of products and raise the production capacity;
c) Technologies which save raw materials, fuels;
efficiently exploit and use natural resources.
2. It is strictly forbidden to transfer
technologies which have adverse impacts on ecological environment, public order
and labor safety.
Article 81.-
Transfer of technologies and capital contribution with
technologies
1. The transfer of technologies by
foreign-invested enterprises and business cooperation parties shall be effected
on the basis of technology transfer contracts as prescribed by the legislation
on technology transfer.
2. The value of the transferred technology used
for capital contribution shall be agreed upon by the parties and must in all
circumstances not exceed 20% of the legal capital.
Invention patents, technical know-how,
technological processes, technical services�, which are used for
capital contribution shall be exempt from all technology transfer-related taxes.
3. When contributing capital with technologies,
investors must compile dossiers on technology transfer. The technology transfer
dossiers shall be sent together with the project dossiers of application for
investment licenses and must include documents relating to industrial property,
industrial property protection deeds and written certification of technical
properties, the principle for agreement on the value of the technology of the
joint-venture parties.
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Article 82.-
Environmental protection
1. Foreign-invested enterprises and business
cooperation parties shall have to abide by the regulations on and meet the
criteria for environmental protection and observe the Vietnamese legislation on
environmental protection.
2. Basing itself on the technology’s operation nature, level and
environmental impacts, the Ministry of Science, Technology and Environment
shall announce the list of projects subject to the elaboration of reports on
environmental impact assessment.
The elaboration and evaluation of the
environ-mental impact assessment reports shall comply with the provisions of
the legislation on environmental protection.
3. For projects outside the above-mentioned
list, the investors only need to expound in their dossiers of application for
investment licenses factors which may affect the environment, state the
handling measures and commit themselves to protect the environment in the
process of construction and business activities.
4. Where the investors apply international
advanced environmental standards in the process of construction and business
activities in Vietnam, they only need to make registration thereof with the
Ministry of Science, Technology and Environment.
Chapter VIII
LABOR RELATIONS
Article 83.-
Labor recruitment
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2. When having demands for employment of foreign
laborers, foreign-invested enterprises and business cooperation parties shall
fill in the procedures at the provincial/municipal Services of Labor, War
Invalids and Social Affairs or the Industrial Park Management Boards for
consideration of the work permit granting as prescribed by the labor
legislation.
Article 84.-
Wages paid to Vietnamese laborers
1. The minimum wage and wages of Vietnamese
laborers working in foreign-invested enterprises and business cooperation
parties are stipulated and paid in Vietnam dong. The Ministry of Labor, War
Invalids and Social Affairs announces the minimum wage for each period.
2. The minimum wage and wages of Vietnamese
laborers may be readjusted when the consumer price indexes rise from 10% or
more against those in the latest readjustment.
Chapter IX
LAND, CONSTRUCTION,
BIDDING, PRE-ACCEPTANCE TEST, FINANCIAL SETTLEMENT OF PROJECTS
Article 85.-
Land lease and payment of land rent
Foreign-invested enterprises and business
cooperation parties shall be leased land by the Vietnamese State for execution
of investment projects and shall have to pay land rents according to the
regulations of the Finance Ministry.
Article 86.-
Land rent levels and land rent exemption and reduction
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Where foreign-invested enterprises or business
cooperation parties, which are leased land by the State, have paid the land
rent in advance for the whole project term or for several years, if during such
period there is a decision to increase the land rent, the paid land rent shall
not be readjusted.
Article 87.-
Regulations on renting land in industrial parks, export
processing zones, hi-tech parks
1. For projects on investment in industrial
parks, export processing zones or hi-tech parks, which are built with
investment by infrastructure development enterprises, the payment of land rent,
the rent for subrent of land on which infrastructures have already been
developed as well as the charges for use of infrastructure projects shall
comply with the contracts signed with the infrastructure development
enterprises.
2. Foreign-invested enterprises and business
cooperation parties renting or subrenting land in industrial parks, export
processing zones or hi-tech parks shall be granted the land use right
certificates under the guidance of the General Land Administration.
Article 88.-
Competence to decide land lease
The Prime Minister shall decide land lease to
projects using the urban land with the area of 5 ha or more, other types of
land with the area of 50 ha or more. The provincial-level People’s Committees shall decide the
land lease to the other projects.
Article 89.-
Compensation, ground clearance, land lease dossiers
1. In case of land lease by the Vietnamese
State, the People’s
Committees of the provinces where exist the investment projects shall have to
organize the compensation, ground clearance, and complete the land lease
procedures. The expenses for compensation and ground clearance shall be
accounted into the investment capital of the projects. The provincial-level
People’s Committees shall
agree with the enterprises which are leased land on the financial sources for
implementation of compensation and ground clearance.
2. Where the Vietnamese party contributes
capital with the land use right, it shall have to make the compensation, clear
the ground and complete the procedures for the land use right. Expenses for the
compensation and ground clearance shall be accounted into the contributed
capital of the Vietnamese party or agreed upon by the parties.
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4. For investment projects licensed by the
provincial-level People’s
Committees, the land lease consideration shall be carried out simultaneously
with the consideration of the investment licensing.
5. For investment projects licensed by the
Ministry of Planning and Investment, the dossiers of application for land lease
attached to the dossiers of application for investment licenses shall include
the following contents:
a) The location and area of the land plot to be
used;
b) The land rental proposed by the provincial-level
People’s Committee on the
basis of the land rental bracket stipulated by the Finance Ministry;
c) The compensation and ground clearance plan.
6. Land rent and subrent procedures and dossiers
shall comply with the guidance of the General Land Administration.
Article 90.-
The time limits for land rent calculation, capital
contribution with the land use right value
Where foreign-invested enterprises and business
cooperation parties rent land to implement investment projects or the
Vietnamese party contributes capital with the land use right value, the time
limit for calculation of land rent or the value of capital contribution of the
Vietnamese party shall be counted from the time of the hand-over of land on the
field.
Article 91.-
Land rent preferences
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Article 92.-
Mortgage of land use right value and assets affixed to
land
1. Foreign-invested enterprises may mortgage the
land use right value and assets affixed to land during the land leasing or
subleasing terms at Vietnamese credit institutions, foreign banks’ branches operating in Vietnam
or joint-venture banks between Vietnam and foreign countries in accordance with
Credit Institution Law to borrow business capital according to the provisions
of law in the following cases:
a) The foreign-invested enterprises have already
paid land rent for many years if the paid land leasing term remains for at
least 5 years;
b) The joint-venture enterprises to which the
Vietnamese parties contribute capital with the land use right, if the duration
of capital contribution with the land use right remains for at least 5 years.
2. The mortgaged land use right value includes the
expenses for compensation and ground clearance and the land rent minus the land
rent paid for duration in which the land was used.
3. The dossiers and procedures for mortgage of
the land use right value shall comply with the guidance of the General Land
Administration and the Vietnam State Bank.
Article 93.-
De-mortgage of the land use right value and assets
affixed to land
1. When fulfilling the debt repayment obligation
toward the debts mortgaged with the land use right value and assets affixed to land,
foreign-invested enterprises shall unfreeze the mortgage according to the
provisions of law.
2. Where the foreign-invested enterprises fail
to perform the debt repayment obligation under the loan contracts, the
mortgaged assets shall be handled according to law provisions.
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Article 94.-
Management of the construction of foreign-invested
projects
The management of the construction of foreign-invested
projects shall include the following contents:
1. Appraisal of the construction project’s planning and architecture.
2. Appraisal of technical design.
3. Examination of the implementation of bidding
in construction, granting of consultancy and construction license for the
bid-winning contractor.
4. Control of the construction project quality.
Article 95.-
Appraisal of planning and architectural schemes
The dossier of application for investment
license must be enclosed with the predesign demonstrating the architectural
scheme.
The appraisal of the project’s planning and architectural
scheme shall be implemented in the process of appraising the investment
projects.
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The construction project designs shall be
appraised in the following details:
1. The legal status of the designing
organization.
2. The design’s
compatibility with the planning and architecture already appraised in the
approved projects and planning.
3. The observance of Vietnamese standards and
criteria for technical design and construction or the foreign technical
criteria approved by the Ministry of Construction.
Article 97.-
Competence to appraise technical designs and
construction decision
The competence to appraise technical designs is
stipulated as follows:
1. The Construction Ministry shall appraise
technical designs of Group A projects prescribed in Article 114 of this Decree,
excluding projects with small-scale and simple constructions. The
provincial-level People’s
Committees shall appraise technical designs of the other projects.
The Construction Ministry shall guide the
appraisal of technical designs.
2. The appraisal of technical designs and the
notification of decision thereon to the investors shall be made within 20 working
days from the date of receipt of the valid dossiers. After the technical design
is approved, the investor can construct the project.
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3. Within 10 working days before the project
construction starts, the investor shall have to notify the date of construction
commencement to the provincial- level People’s
Committee of the locality where the project is to be constructed.
Article 98.-
Responsibilities for construction works
1. The investors are responsible before
Vietnamese law for the quality and safety of construction works; fire and
explosion prevention and fighting; as well as environmental protection during
the period of project construction as well as throughout the period of using
the works.
2. The surveying and designing organizations as
well as the construction contractors shall have to bear responsibility before
the investors and Vietnamese laws for their jobs related to the quality of the
works.
Article 99.-
Putting works to use
Upon the completion of project construction, the
investors shall report the completion of project construction to the project
design- appraising body and be allowed to put the works to use. In case of
necessity, this body shall conduct the examination of the works; if any
violations of the approved designs and/or the regulations on construction, the
violators shall be handled according to law provisions.
Article 100.-
Regulations on bidding for projects with foreign
investment capital
1. Joint-venture enterprises and business
cooperation contracts where State enterprises of Vietnam contribute 30% or more
of the legal capital or business capital shall have to organize bidding for
goods procurement as well as construction and installation according to the
legislation on bidding. The Management Boards of joint-venture enterprises or
the competent representatives of business cooperation parties shall have to
approve the bidding plans and results based on the consent of the investment
licensing bodies.
2. Apart from the projects prescribed in Clause
1 of this Article, the investors are encouraged to organize bidding for other
projects according to the legislation on bidding.
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1. Within 6 months after the works or work components
are completely constructed and put into exploitation and use, foreign-invested
enterprises and business cooperation parties shall have to forward their
reports on construction work settlement to the investment licensing bodies. The
investors shall have to bear responsibility for the truthfulness and accuracy
of their settlement reports.
2. Within 30 days after receiving the
construction work settlement reports, the investment licensing bodies shall
have to consider and grant the certificate of registration of work settlement
reports.
In case of necessity, the investment licensing
bodies may appraise the investment capital settlement reports and request the
adjustment of investment capital according to the reasonable expenses.
3. Within 6 months after the works are
completely constructed and put to use, the investors shall have to submit the
construction completion dossiers for archive according to law provisions.
4. The certification of ownership over the
construction works shall comply with the provisions of law.
Article 102.-
Liquidation
1. The investors shall submit their work
settlement reports with certification of registration to the Customs Offices in
order to carry out procedures for liquidation of machinery, equipment, raw
materials and materials imported for the project construction and installation.
2. Where the imported goods are not used up for
the installation and construction of works under projects, the investors shall
report such to the investment licensing bodies and the Customs Offices for
handling. The above-said goods shall be sold on domestic markets only when the
Trade Ministry’s approval
is obtained and the relevant financial obligations are fulfilled according to
the provisions of law.
Article 103.-
Support for technical infrastructures outside the fences
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Chapter X
INVESTMENT LICENSING
PROCEDURES
Article 104.-
The investment licensing process
1. Foreign investment projects in Vietnam shall
be approved in form of investment licenses. The investment licenses are issued
in set forms by the Ministry of Planning and Investment.
2. The granting of investment licenses shall
comply with one of the two following processes:
a) Registration for investment licensing;
b) Appraisal of investment licensing.
Article 105.-
Conditions on projects subject to investment licensing
registration
1. The projects subject to investment licensing
registration shall also have to satisfy the following conditions:
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b) They are in line with the approved planning;
c) They are not on the list of projects subject
to the elaboration of report on environmental impact assessment.
2. Apart from the conditions prescribed in
Clause 1 of this Article, the projects subject to investment licensing
registration shall have to satisfy one of the following conditions:
a) Exporting all products;
b) Investing in industrial parks, meeting the requirements
on export percentage as stipulated by the Ministry of Planning and Investment;
c) Belonging to the production fields with the
investment capital of up to USD 5 million and having the export percentage of
80% or more.
3. The investment licensing bodies must not
refuse to grant the investment licenses to projects which satisfy all
conditions on investment licensing registration.
4. The other projects shall be subject to the
appraisal of investment licensing.
Article 106.-
Registration for investment licensing
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a) The application for investment licensing
registration;
b) The joint-venture contract and Charter of the
joint-venture enterprise or the Charter of the enterprise with 100% foreign
investment capital or the business cooperation contract;
c) The documents certifying the legal status and
financial situation of the parties.
2. The dossier of registration for investment
licensing shall be made in 5 sets, including at least 1 original, which shall
all be submitted to the investment licensing body.
3. Within 15 working days after the receipt of
valid dossiers, the investment licensing bodies shall notify their decisions of
approval in form of investment licenses.
The Ministry of Planning and Investment shall
issue documents guiding the compilation of the project dossiers of registration
for investment licensing.
Article 107.-
Dossiers of appraisal of investment licensing
1. The dossier of appraisal of investment
licensing shall include:
a) The application for investment licensing;
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c) The eco-technical exposition;
d) The documents certifying the legal status and
financial situation of the joint-venture parties, the business cooperation
parties, the foreign investors;
e) The documents related to the technology
transfer (if any).
2. The dossier shall be made in 12 sets for
Group A projects or 8 sets for Group B projects, including at least 1 original,
which shall all be submitted to the investment licensing body.
The Ministry of Planning and Investment shall
issue documents guiding the compilation of dossiers of foreign investment
projects.
Article 108.-
Contents of investment project appraisal
The contents of investment project appraisal
shall include:
1. The legal status and financial capabilities
of foreign and Vietnamese investors.
2. The project’s
conformity with the planning.
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4. The levels of techniques and technologies to
be applied, the rational use and protection of resources, the protection of
ecological environment.
5. The rationality of the use of land and
valuation of assets contributed as capital of the Vietnamese party (if any).
Article 109.-
The process of appraising investment projects licensed
by the Ministry of Planning and Investment
1. For Group A projects, the Ministry of Planning
and Investment shall gather comments thereon from the concerned ministries,
branches and provincial-level People’s Committees before submitting them to the
Prime Minister for consideration and decision. In case of divergence of
opinions on important issues of the projects, the Ministry of Planning and
Investment shall organize consultative meetings with competent representatives
of concerned agencies to consider the projects before they are submitted to the
Prime Minister. Depending on each specific case, the Prime Minister may request
the State Council for Appraisal of Investment Projects to study and provide
consultancy so that the Prime Minister shall consider and decide it;
2. For Group B projects falling under the
deciding competence of the Ministry of Planning and Investment, the said
Ministry shall gather comments from the concerned ministries, branches and
provincial-level People’s
Committees before considering and deciding them.
3. Project appraisal time limits:
a) Within 3 working days after receiving the
valid dossier, the Ministry of Planning and Investment shall send the dossier
to the concerned ministries, branches and provincial-level People’s Committees for comments;
b) Within 15 working days after receiving the
valid dossier, the ministries, branches and provincial-level People’s Committees shall send their
written comments to the Ministry of Planning and Investment on the project
contents belonging to their respective fields of management; if past the
above-said time limit they fail to send any written comments, they shall be
considered as having approved the projects;
c) For Group A projects, within 30 working days
after receiving the valid dossiers, the Ministry of Planning and Investment
shall submit its appraisals to the Prime Minister. Within 10 working days after
receiving the reports of the Ministry of Planning and Investment, the Prime
Minister shall issue decisions on the projects. Within 5 working days after
receiving the Prime Minister’s
decisions, the Ministry of Planning and Investment shall notify the investors
of the decisions on the granting of investment licenses to their projects;
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The above time limit does not include the time
during which the investors amend and/or supplement the dossiers of application
for the investment licenses.
All requests of the Ministry of Planning and Investment
for amendments and supplements to the project dossiers by the investors shall
be made in writing within 20 working days after the receipt of valid dossiers.
If past the above time limit no investment
license is granted, the Ministry of Planning and Investment shall send its
written notice thereon to the investors clearly stating the reasons therefore,
and concurrently to the concerned agencies.
4. The granting of investment licenses to
projects in industrial parks, export processing zones and hi-tech parks shall
be effected under the mechanism of authorization by the Ministry of Planning
and Investment.
Article 110.-
The appraisal process applicable to investment projects
licensed by the provincial-level People’s
Committees
1. The project appraisal contents shall comply
with Article 108 of this Decree.
2. The time limits for project appraisal and
investment licensing:
a) Within 3 working days after receiving the
valid dossiers, the provincial-level People’s
Committees shall send the project dossiers to the ministries which manage the
economic and technical branches and concerned ministries and branches for
comments on the projects;
b) Within 15 working days after receiving the
valid dossiers, the ministries and branches shall send their written comments
to the provincial-level People’s
Committees on the project contents falling into the fields of their management;
if past the above time limit, they fail to send any written comments, they are
considered as having approved the projects;
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The above time limit does not include the time
for the investors to amend and/or supplement the dossiers of application for
investment licenses.
All requests of the provincial-level People’s Committees for amendments
and/or supplements to the project dossiers by the investors shall be made in
writing within 20 working days after the receipt of valid dossiers.
If past the above-said time limit the
provincial-level People’s
Committees fail to grant the investment licenses, they shall send written
notices thereon to the investors, clearly stating the reasons therefor, and
concurrently to the concerned agencies.
3. Within 7 working days after granting the
investment licenses or the adjusted licenses, the provincial-level People’s Committees shall forward the
originals of the investment licenses or the adjusted licenses to the Ministry
of Planning and Investment and their copies to the Finance Ministry, the Trade
Ministry, the ministries managing the economic and technical branches and the
concerned State agencies.
Article 111.-
Adjustment of investment licenses
1. The amending and supplement of investment licenses
shall be approved by the investment licensing bodies in form of adjusted
licenses.
2. The amendment to grant the adjusted licenses
is stipulated as follows:
a) The Ministry of Planning and Investment shall
decide the granting of adjusted licenses to the projects prescribed in Article
114 and Clause 2 of Article 115 of this Decree and authorize the Industrial
Parks Management Boards to grant adjusted licenses to the authorized projects;
b) The provincial-level People’s Committees shall decide the
granting of adjusted licenses to projects assigned to them for investment
licensing.
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a) The application for adjustment of the
investment license;
b) The Resolution of the Management Board of the
joint-venture enterprise or the agreement reached between the business
cooperation parties or the proposal of the foreign investors on the proposed
amendment and/or supplement to the investment license;
c) The report on the project implementation
situation.
4. The investment licensing bodies shall notify
the foreign-invested enterprises and/or business cooperation parties of the
decisions on the adjustment of investment licenses within 15 working days after
the receipt of the valid dossiers.
The above time limit does not include the time
for the foreign-invested enterprises and business cooperation parties to give
additional explanation.
Chapter XI
STATE MANAGEMENT OF
FOREIGN INVESTMENT ACTIVITIES
Article 112.-
Guiding the investment activities
1. The ministries, branches and provincial-level
People’s Committees shall
have to guide the foreign investment activities in the fields and geographical
areas under their respective management; provide necessary information and
create all favorable conditions for investors to select the investment
opportunities in Vietnam; improve the administration and revise the investment
procedures in order to ensure simple and quick investment procedures.
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Article 113.-
Coordination of State management activities
1. The ministries, branches and provincial-level
People’s Committees shall
exercise the State management of foreign investment activities according to the
provisions of law, effecting the regime of coordination in the work of
enterprise management.
2. The provincial-level People’s Committees shall have to
promptly handle matters falling under their competence and guide enterprises to
operate in strict compliance with the regulations in the investment licenses
and the provisions of law.
3. The Ministry of Planning and Investment shall
sum up and provide information on the foreign investment situation for the
ministries, branches and the provincial-level People’s
Committees, periodically work with the Finance Ministry, the Trade Ministry,
the State Bank, the General Land Administration, the General Department of
Customs and the concerned provincial-level People’s
Committees in order to handle in time arising matters as well as petitions of
foreign-invested enterprises, business cooperation parties and put forward
policies and measures to improve the investment environment.
Article 114.-
Competence to decide investment projects
1. The Prime Minister shall decide Group A-
projects, including:
a) Projects, regardless of investment capital
amounts, in various fields:
- Capital construction of infrastructures in
industrial parks, export processing zones, hi-tech parks, urban centers; BOT,
BTO and BT projects;
- Seaport and airport construction and business;
sea shipping and air transport business;
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- Postal and telecommunications services;
- Culture; publication and press; radio and
television; medical examination and treatment establishments; education and
training; scientific research; production of curative medicines for human use;
- Insurance, finance, audit, expertise;
- Prospection and exploitation of precious and
rare natural resources;
- Construction of dwelling houses for sale;
- Defense and security projects.
b) Projects with investment capital of USD 40
million or more in such branches as electricity, mining, metallurgy, cement,
machine building, chemicals, hotels, apartments and offices for rent,
entertainment- recreation- tourist complexes;
c) Projects using the urban land of 5 ha or more
and other type of land of 50 ha or more.
2. The Ministry of Planning and Investment shall
decide Group B projects (being those not prescribed in Clause 1 of this
Article), except projects defined in Clause 3 of this Article.
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Article 115.-
Assignment of investment licensing responsibility
1. Investment projects assigned to the
provincial-level People�s Committees for
investment licensing shall have to satisfy the following criteria and
conditions:
a) Being in line with planning and plans for
socio-economic development, which have already been approved;
b) Being other than Group A projects prescribed
in Clause 1, Article 114 of this Decree with investment capital amounts
prescribed by the Prime Minister.
2. The provincial-level People’s Committees shall not be
assigned the responsibility to grant investment licenses to investment projects
in the following fields (regardless of investment capital amounts):
a) National highways and railways construction;
b) Cement production, metallurgy, electricity,
edible sugar, liquors, beer, cigarettes; automobile and motorcycle manufacture
and assembly;
c) Tour bussiness.
Article 116.-
The provincial-level People’s
Committees’ function of
State management over foreign investment
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1. To make and announce lists of local projects
for attracting foreign investment, based on the approved socio-economic
development planning and the coordination with concerned ministries and
branches; to mobilize and promote investment.
2. To assume the prime responsibility for the
appraisal, grant investment licenses and adjust investment licenses, decide to
dissolve foreign-invested enterprises and terminate business cooperation
contracts ahead of time regarding projects under their jurisdiction.
3. To take part in the appraisal of projects in
their respective localities, which are granted the investment licenses by the
Ministry of Planning and Investment.
4. To perform the function of State management
over projects with foreign investment capital in their respective localities
according to the following principal contents:
a) Supervising the capital contribution, the
observance of regulations in the investment licenses as well as relevant legal
documents;
b) Supervising the implementation of the
provisions on financial obligations, labor and wage relations, social order and
safety, the ecological environment protection, fire and explosion prevention
and fighting;
c) Granting the land use right certificates;
organizing the ground clearance; granting permits for opening head-offices,
branches; registering residence for foreigners; recommending Vietnamese
laborers to enterprises and granting certificates according to current
regulations;
d) Removing difficulties and problems of
investors according to their competence, and proposing the ministries and
branches to settle matters beyond their competence;
e) Assuming the prime responsibility for or
joining other ministries and branches in examining and inspecting activities of
foreign-invested enterprises;
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5. Quarterly, biannually and annually, the
provincial-level People’s
Committees send reports on foreign investment activities in their localities to
the Ministry of Planning and Investment.
Article 117.-
The Planning and Investment Ministry’s function of State management
over foreign investment
1. The Ministry of Planning and Investment shall
act as the main player in settling matters in the process of formation,
deployment and implementation of investment projects, including:
a) Guiding and coordinating with the ministries,
branches and provincial-level People’s
Committees in drawing up the planning, plans and lists of projects calling for
investment and conducting promotion activities to call for investment;
b) Assuming the prime responsibility for
appraisal, granting the investment licenses and the adjusted licenses for
investment projects under its competence;
c) By the Prime Minister’s
decision, authorizing the Industrial Parks Management Board to grant, adjust
and withdraw investment licenses for foreign projects of investment in
industrial parks, export processing zones and hi-tech parks at the proposals of
the provincial-level People’s
Committees or the Ministry of Science, Technology and Environment (for hi-tech
parks);
d) Reconciling disputes when so requested;
e) Organizing the examination and inspection of
the carrying out of foreign investment activities;
f) Making general evaluation of the socio-economic
efficiency of foreign direct investment in Vietnam;
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2. Annually, the Ministry of Planning and
Investment sums up the situation of investment licensing and foreign investment
activities in Vietnam and report it to the Prime Minister and notify the
concerned ministries and branches thereof.
Article 118.-
The function of State management over foreign
investment of the other ministries, the ministerial-level agencies and the
agencies attached to the Government
The other ministries, the ministerial-level
agencies and the agencies attached to the Government shall have the
responsibility:
1. To coordinate with the Ministry of Planning
and Investment in elaborating legislation, policies and planning related to
foreign investment.
2. To elaborate planning, plans and lists of
their own projects calling for foreign investment; organizing investment
mobilization and promotion.
3. To give comments on matters falling under
their jurisdiction in the appraisal of projects, granting and adjustment of
investment licenses.
4. To promulgate and guide the implementation of
policies, settle procedures related to the deployment and implementation of
investment projects.
5. To conduct specialized inspection; evaluate
the socio-economic efficiency of the investment projects under their respective
specialized management.
6. To promulgate technical criteria and
processes related to their own economic and technical domains.
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Article 119.-
Regulations on inspection and examination
1. The inspection and examination of activities
of foreign-invested enterprises and business cooperation parties must ensure
the compliance with functions, jurisdiction and law provisions on foreign
investment as well as on inspection and examination.
2. The agencies having inspection and
examination function shall have to draw up plans for periodical inspection and
examination to be addressed to the Ministry of Planning and Investment, the
concerned provincial-level People’s
Committees and Industrial Park Management Boards for the coordinated inspection
and examination. The periodical specialized inspection and examination shall be
carried out not more than once a year for an enterprise.
3. Those who issue inspection and examination
decisions in contravention of law or who take advantage of the inspection and
examination to seek personal profits, harass and cause troubles to business
activities of enterprises shall, depending on the seriousness of their
violations, be disciplined or examined for penal liability; if causing damage,
they shall have to compensate therefor as prescribed by law.
4. Foreign investors, foreign-invested
enterprises, business cooperation parties, organizations and individuals may
complain or initiate lawsuits against illegal decisions and acts of causing
difficulties and troubles committed by State employees and bodies. The
complaint or lawsuit making and the settlement of complaints and lawsuits shall
comply with the law provisions on complaints and denunciations.
Chapter XII
INVESTMENT SECURITY AND
DISPUTE HANDLING
Article 120.-
Investment security
1. The Vietnamese Government assures the equal
and satisfactory treatment for foreign investors investing in Vietnam under the
Foreign Investment Law. Where the international agreements which the Socialist
Republic of Vietnam has signed or acceded to contain provisions different from
those of this Decree and other legal documents, the provisions of such
international agreements shall apply.
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Article 121.-
Investment security in case of legal changes
1. In cases where the changes of Vietnamese law
provisions cause damage to the interests of foreign-invested enterprises and
business cooperation parties, such foreign-invested enterprises and business
cooperation parties shall be entitled to enjoy the preferences prescribed in
the investment licenses or the satisfactory settlement by the State according
to the following measures:
a) Changing the operation objectives of the
projects;
b) Tax reduction and exemption according to the
provisions of law;
c) The damage suffered by foreign-invested
enterprises and/or business cooperation parties shall be deducted from their
taxable incomes;
d) Being considered for satisfactory
compensation in a number of necessary cases.
With regard to projects licensed by the
provincial-level People’s
Committees or the Industrial Parks Management Board, before deciding to apply
the above-said measures, the provincial-level People’s
Committees or the Industrial Parks Management Board shall have to consult with
the Ministry of Planning and Investment and the Finance Ministry.
3. The more preferential provisions promulgated
after the granting of investment licenses shall automatically be applied in
replacement of the previous corresponding regulations. If the application of
new law provisions requires the adjustment of investment licenses, the
investment licensing agencies shall adjust the investment licenses.
Article 122.-
Handling of disputes
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In case of reconciliation failure, the disputing
parties may come to agreement on one of the following handling modes:
a) Vietnamese courts;
b) Vietnamese arbitrators; or foreign
arbitrators, international arbitrators;
c) Arbitration set up upon the agreement reached
between the parties.
2. Disputes among foreign-invested enterprises
or between foreign-invested enterprises and Vietnamese economic organizations
shall be settled at Vietnamese arbitrators or courts according to Vietnamese
laws.
3. Disputes between foreign investors and
competent State bodies, which arise from BOT, BTO or BT contracts; disputes
between BOT enterprises and Vietnamese economic organizations shall be settled
by modes agreed upon by the parties in the contracts in conformity with the
Government’s Regulation on
investment under BOT, BTO and BT contracts, applicable to foreign investment in
Vietnam.
Chapter XIII
COMMENDATION AND
HANDLING OF VIOLATIONS
Article 123.-
Commendation
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2. Depending on the achievements of enterprises
or individuals in their production and/or business activities, contribution to
the society and the observance of Vietnamese law provisions, the competent
State bodies shall decide the commendation in various forms, including:
a) Orders or Medals awarded by the State;
b) Orders or Medals awarded by the State
President;
c) Certificate of merit conferred by the Prime
Minister;
d) Certificate of merit conferred by ministers
or heads of the ministerial-level agencies;
e) Certificate of merit conferred by provincial
People’s Committee
presidents.
3. Foreign-invested enterprises, business
cooperation parties and individuals, that deem themselves to have recorded the
achievements mentioned in Clause 2 of this Article shall submit their written
requests for commendation consideration as prescribed below:
a) The written requests to the State President,
the Prime Minister or the Minister of Planning and Investment shall be
addressed to the Ministry of Planning and Investment. The Ministry of Planning
and Investment shall coordinate with relevant agencies in consideration thereof
and decide to commend enterprises and individuals according to its competence
or propose the State President and the Prime Minister to consider the
commendation;
b) The written requests to the ministers of
specialized branches or heads of the ministerial-level agencies shall be
addressed to the ministries managing specialized branches or the
ministerial-level agencies for consideration;
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Article 124.-
Handling of violations
1. Officials, employees and management bodies of
the Vietnamese State, that abuse their powers to cause difficulties and
troubles to and obstruct foreign investment activities, shall, depending on the
seriousness of their violations, be examined for their liability according to
the provisions of law.
In cases where the violations cause damage, the
involved State officials, employees and management bodies shall have to pay
compensation to the organizations and/or individuals that have suffered the
damage.
2. Foreign-invested enterprises, business
cooperation parties, foreign investors and laborers, that violate the
provisions of the investment licenses and Vietnamese laws, shall be handled
according to law.
Chapter XIV
IMPLEMENTATION
PROVISIONS
Article 125.-
Implementation provisions
1. This Decree takes effect as from August 1,
2000 and replaces Decree No.12/CP of February 18, 1997 and Decree
No.10/1998/ND-CP of January 23, 1998 of the Government. The previous
regulations contrary to this Decree shall all be annulled.
2. The ministers, the heads of the
ministerial-level agencies, the heads of the agencies attached to the
Government and the presidents of the People’s
Committees of the provinces and centrally-run cities shall have to guide the
implementation of this Decree.
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ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai
APPENDIX I
I. LIST OF PROJECTS WITH SPECIAL INVESTMENT
ENCOURAGEMENT
- Production or processing with 80% or more of
the products for export;
- Processing of agricultural products, forest
products (excluding timber) or aquatic products from domestic raw materials,
with 50% of the products for export;
- Production of new breeds with high quality and
economic efficiency;
- Agricultural farming, forestation, aquaculture;
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- Hi-tech industries;
- Investment in research and development;
- Manufacture of waste treating equipment;
- Production of antibiotics raw materials;
- Pollution treatment and environmental
protection, waste treatment;
- Investment under BOT, BTO or BT contracts.
II. LIST OF PROJECTS WITH INVESTMENT
ENCOURAGEMENT
- Production or processing with 50% or more of
products for export;
- Production or processing with 30% or more of
the products for export and with the use of large percentages of domestic raw
materials and materials (valued at from 30% or more of the production cost).
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- Processing of farm produce, forest products
(excluding timber), aquatic products;
- Preservation of food; post-harvest preservation
of farm produce;
- Mineral exploration, exploitation and
intensive processing;
- Development of petro-chemical industry;
construction and operation of oil and gas pipelines, depots, ports;
- Manufacture of equipment, detail groups in
oil, gas, mineral or fuel exploitation; manufacture of big lifting and lowering
equipment;
- Manufacture of high-quality steel, alloy,
nonferrous metals, special metals, steel cast, spongy iron for industrial use;
- Manufacture of machine tools for metal
working, metallurgical equipment;
- Manufacture of precision tools, safety check
and inspection equipment; manufacture of molds for metal and non-metal products;
- Manufacture of medium- and high-voltage
electric equipment;
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- Manufacture of automobile and motorbike spare
parts; manufacture and assembly of construction equipment, machines and
vehicles; manufacture of technical equipment for transport service;
- Shipbuilding; manufacture of equipment and
spare parts for freighters, fishing ships;
- Manufacture of information and
telecommunications equipment;
- Manufacture of electronic components and
equipment, informatics technology;
- Manufacture of agricultural equipment, spare
parts, machines, irrigation and drainage equipment;
- Production of assorted insecticide raw
materials;
- Production of base chemicals, pure chemicals,
dyes, special-use chemicals;
- Production of cleansing raw materials,
chemical additives;
- Production of special-type cement, composite
materials, sound-proof, electric-insulated and heat-resistant materials, wood
substitute composite materials, refractory materials, construction plastic,
glass fibers;
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- Production of paper pulp;
- Production of silk, assorted yarns and special
fabric for industrial use;
- Manufacture of high-class raw materials for
production of export footwear and garments;
- Manufacture of high-quality packings for
export goods;
- Manufacture of medical equipment in analytical
technology and extracting technology in medicine;
- Production of drug raw materials, medicines of
GMP international standards;
- Improvement, development of energy sources;
- Mass transit;
- Construction and renovation of bridges, land
roads, airports, harbors, railway stations, car terminals, railways;
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- Construction- commercial operation of infrastructures
of industrial parks, export processing zones, hi-tech parks.
III. LIST OF GEOGRAPHICAL AREAS WHERE
INVESTMENT IS ENCOURAGED
Ordinal
number
Province/City
Section A:
Geographical areas facing particularly difficult socio-economic conditions
Section B:
Geographical areas facing difficult socio-economic conditions
1
Ha Giang
All districts and provincial capital
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2
Cao Bang
All districts and provincial capital
3
Lai Chau
All districts and provincial capital
4
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All districts and provincial capital
5
Son La
All districts and provincial capital
6
Bac Kan
All districts and provincial capital
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7
Tuyen Quang
All districts and provincial capital
8
Lang Son
All districts and provincial capital
9
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All districts and provincial capital
10
Thai Nguyen
All districts, provincial capital and Thai
Nguyen City
11
Bac Giang
All districts and provincial capital
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12
Vinh Phuc
Districts: Lap Thach, Tam Duong and Binh Xuyen
Districts not in Section A
13
Phu Tho
All districts, provincial capital and Viet Tri
city
14
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All districts and provincial capital
15
Bac Ninh
Districts: Que Vo, Yen Phong, Gia Binh, Luong
Tai and Thuan Thanh
16
Ha Noi
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17
Ha Tay
Districts: Ba Vi, My Duc, Phuc Tho, Quoc Oai,
Thach That and Ung Hoa
18
Quang Ninh
Districts: Ba Che, Binh Lieu, Quang Ha, Hoanh
Bo, Tien Yen, Dong Trieu and Mong Cai provincial capital
Yen Hung district and provincial towns of Cam
Pha, Uong Bi
19
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Districts: Vinh Bao and Tien Lang
20
Hai Duong
Chi Linh district
All districts not included in Section A
21
Hung Yen
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22
Thai Binh
All districts and provincial capital
23
Ha Nam
All districts and provincial capital
24
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All districts and Nam Dinh city
25
Ninh Binh
Districts: Nho Quan, Yen Mo and Gia Vien
Tam Diep provincial town and all districts not
in Section A
26
Thanh Hoa
Districts: Lang Chanh, Thuong Xuan, Quan Hoa,
Ba Thuoc, Ngoc Lac, Nhu Xuan, Cam Thuy, Thach Thanh, Quan Son and Muong Lat
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27
Nghe An
Districts: Ky Son, Tuong Duong, Con Cuong, Quy
Chau, Que Phong, Quy Hop, Nghia Dan, Anh Son, Tan Ky, Thanh Chuong, Do Luong
Cua Lo provincial town and districts not in
Section A
28
Ha Tinh
All districts
Ha Tinh provincial capital
29
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All districts
Dong Hoi provincial capital
30
Quang Tri
Quang Tri provincial capital and all districts
Dong Ha provincial town
31
Thua Thien - Hue
All districts
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32
Da Nang
Districts: Hoa Vang, Thanh Khe, Ngu Hanh Son
and Lien Chieu
33
Quang Nam
All districts and Hoi An provincial town
Tam Ky provincial capital
34
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All districts
Quang Ngai provincial capital
35
Binh Dinh
All districts
Quy Nhon city
36
Phu Yen
All districts
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37
Khanh Hoa
Districts: Khanh Son and Khanh Vinh
Districts not in Section A
38
Binh Thuan
All districts
Phan Thiet provincial capital
39
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All districts
Phan Rang provincial capital
40
Kon Tum
All districts and provincial capital
41
Gia Lai
All districts and provincial capital
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42
Dak Lak
All districts and Buon Ma Thuot city
43
Lam Dong
All districts, provincial towns and Da Lat
city
44
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Districts: Dinh Quan, Tan Phu and Xuan Loc
45
Binh Phuoc
All districts and provincial capital
46
Binh Duong
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47
Tay Ninh
All districts
48
Ho Chi Mnh City
Districts: Can Gio and Cu Chi
49
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Districts: Long Dat and Xuyen Moc
50
Long An
All districts
Tan An provincial capital
51
Dong Thap
All districts and provincial capital
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52
Tien Giang
All districts and provincial capital
My Tho city
53
Ben Tre
All districts and provincial capital
54
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All districts and provincial capital
55
Tra Vinh
All districts and provincial capital
56
An Giang
All districts and Long Xuyen City
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57
Can Tho
All districts and provincial towns
Can Tho city
58
Soc Trang
All districts and provincial towns
59
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All districts and provincial towns
60
Ca Mau
All districts and provincial towns
61
Kien Giang
All districts and provincial towns
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IV. LIST OF FIELDS WITH CONDITIONAL INVESTMENT
1. Investment only in forms of joint venture or
business cooperation contract:
- Construction and commercial operation of
international telecommunication networks, local telecommunication networks
(only in form of business cooperation contract);
- Production and processing of oil, gas, rare
and precious minerals;
- Consulting services (excluding technical
consultancy);
- Air, rail and sea transport; mass transit,
construction of harbors and airports (excluding BOT, BTO and BT projects);
- Production of industrial explosives;
- Forestation;
- Tour business;
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2. Products which must ensure the export
percentage requirement
The compulsory export percentages for home-made
products which have already met the quantitative and qualitative requirements
shall be announced for each period by the Ministry of Planning and Investment.
3. Processing projects which must be linked to
investment in creation of raw material sources
- Dairy production and processing;
- Vegetal oil and cane sugar production;
- Timber processing.
4. Projects for investment in import services,
domestic distribution services shall comply with the Prime Minister’s regulations.
V. LIST OF FIELDS NOT LICENSED FOR INVESTMENT
1. Projects which are detrimental to the
national security, defense and public interests.
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3. Projects which cause harms to ecological
environment; projects on treatment of hazardous wastes brought from overseas
into Vietnam.
4. Projects for production of toxic chemicals or
use of hazardous agents banned under international treaties.
APPENDIX II
I. DETAILED REGULATIONS ON LIST OF MACHINERY,
EQUIPMENT AND TRANSPORT MEANS EXEMPT FROM IMPORT TAX FOR CREATION OF FIXED
ASSETS OF FOREIGN-INVESTED ENTERPRISES AND BUSINESS COOPERATION PARTIES
1. Principal machinery and equipment in the
technological chain shall include:
Manufacturing machinery and equipment; supplies,
components, accompanying spare parts for assembly and installation of equipment
systems; molds accompanying manufacturing equipment, machinery, instruments�
for the completion of operation to produce products prescribed in the
investment licenses.
2. Support machinery and equipment in the
technological chain shall include:
1. Electrical system: The complete equipment,
machinery and supplies for installation of complete electricity supply system.
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3. Lighting system: all equipment, machinery and
supplies for installation of complete lighting system.
4. Air conditioning and ventilating system of
production areas.
5. Laboratory equipment and facilities.
6. Fire prevention and fighting equipment,
lightning arresters, labor safety equipment and devices�.
7. Information and communications systems
8. Machinery and equipment necessary for product
designing or office equipment in service of production management.
3. Special-use transport means in the
technological chain shall include:
1. Special-use transport means for business
operations prescribed in the investment licenses.
2. Means for transportation of raw materials and
products in the technological chains.
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A. LIST OF GROUPS OF EQUIPMENT EXEMPT FROM
IMPORT DUTIES UNDER THE GENERAL REGULATIONS
1. System of assorted water supply equipment
(mechanical pump, filterer, water meter, boiler…).
2. Air conditioning and ventilating system
(central or local conditioning system and complete accessories and supplies…).
3. Fire prevention and fighting system.
4. Power-supply and lighting system (assorted
lamps)
5. Garbage and waste water treatment system.
6. Information and communication system.
7. Carriage system (lift, electric cars, assorted
strollers).
8. Laundry system.
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10. Equipment for physical exercises and sports,
swimming pools, tennis courts, hair stylists, dancing halls, karaoke bar,
entertainment and recreation, physiotherapy (excluding equipment stated in Section
B of this Appendix, if any).
11. Machinery and equipment for lawn tending
(lawn mowers, insecticide sprayers…).
12. Water spraying, irrigation and drainage
systems.
13. Medical machinery, equipment, instruments,
laboratory instruments.
14. Teaching and learning equipment and
facilities (including tables, stools, blackboards, teaching aids, lab
instruments…).
15. Accessories accompanying the above-mentioned
equipment and machinery.
16. Machinery and equipment of various types
used exclusively for banking and financial enterprises (security safe, assorted
computers, cash counters, counterfeit money detectors, information system,
security machinery, cash transport vehicles).
17. Office equipment and furniture in service of
business management (computers, printers, fax and telex machines, photocopiers,
desks, chairs, file cabinets…).
B. LIST OF GROUPS OF EQUIPMENT ONLY ENTITLED TO
SINGLE IMPORT TAX EXEMPTION, NON-APPLICABLE TO CASES OF REPLACEMENT
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2. Sanitary wares (bath tubs, toilet stools,
wash basins, supplies for sanitary system installation, mirrors…).
3. Living room equipment and furnitures (tables,
chairs)
4. Furniture for kitchen, dining rooms,
restaurants, bars (assorted stoves and cooking utensils)
5. Paintings, statutes, tapestry and other
decorative objects.
6. Refrigerators, television set, microwave
stove, smoke discharger, deodorizer, glass, cups, plates, bowls.
7. Audio-visual equipment.
8. Golf clubs.