CONSULTANT ON PROCEDURES FOR ISSUANCE OF INVESTMENT CERTIFICATE

CONSULTANT ON PROCEDURES FOR ISSUANCE OF INVESTMENT CERTIFICATE

Hanoi, (date/month/year 20)

LEGAL CONSULTATION

No:........../TTV-HTC Vietnam

Re: Consultant on procedures for issuance of investment certificate

Respectfully addressed to:

Company

Address:

Telephone:

First and foremost, HTC Vietnam would like to avail itself of this opportunity to present to you its highest consideration and appreciation for your interest in its services.

I. CLIENTS’ REQUIREMENTS

According to provided information from …., it is of HTC’s knowledge that: Clients expect HTC Vietnam Law Firm (Hanoi Bar Association) to provide legal consulting services on procedures for issuance of investment certificates, as well as legal processes and necessary documents for the above services.

II. SCOPE OF CONSULTATION

1. Legal basis

- Law No. 61/2020/QH14 on Investment

- Decree No. 31/2021/ND-CP detailing and guiding the implementation of the Investment Law.

- Circular 03/2021/TT-BKHDT prescribing templates for documents and reports related to investment activities in Vietnam, outward investment activities and investment promotion activities

2. HTC Vietnam provides advice on the matter concerning the procedures for issuance of investment certificates

Investment certificates are insurance licenses issued by competent agencies to eligible organizations and individuals and are often attached to investment projects. Currently, most investment certificates are applied to foreign individuals and organizations.

Typically, a project that is realizable requires investment procedures in compliance with the 2020 Investment Law and necessary documentation. These procedures consist of two processes: The procedure for decision on investment guidelines comes first, followed by the procedure for issuance of the investment registration certificate. However, not all projects are required to complete each of the aforementioned procedures, and some projects are not required to carry out both procedures. Only investment guideline decisions are subject to approval for investment decisions by The National Assembly; The Prime Minister; The President of the provincial People’s Committee according to the Law on Investment. Whether or not to apply for the investment guideline decisions does not affect the procedures for issuing investment registration certificates. However, if the project is subject to such procedures, it may have an impact on the procedures for issuance of the Investment Registration Certificate. This is stated in Article 38 of the Law on Investment 2020. To be more specific:

- If the investment project is subject to approval for its investment guidelines as prescribed in Article 30, Article 31 and Article 32 of this Law, the investment registration authority shall issue the investment registration certificate to the investor within:

+ 05 working days from the receipt of the written approval for investment guidelines and the written approval for investor with respect to the investment project that is subject to issuance of an investment registration certificate;

+ 15 days from the receipt of the investor’s investment registration certificate with respect to the investment project other than that specified in Point a of this Clause.

- If the investment project is not subject to approval for its investment guidelines as prescribed in Article 30, Article 31 and Article 32 of this Law, the investor shall be issued with the investment registration certificate if the following conditions are met:

+ The investment project does not involve any banned business line;

+ There is a location for execution of the investment project;

+ The investment project is conformable with the planning specified in Point a Clause 3 Article 33 of this Law;

+ The investment per m2 (or investment per employee) is not smaller than the minimum requirement.

+ Market access conditions applied to foreign investors are satisfied.

+ The Government shall elaborate conditions, applications and procedures for issuance of the investment registration certificate.

2.1. Content of the application for an investment project that is not subject to decision on investment guidelines

Composition of the dossier:

- An application form for execution of the investment project;

- A certified copy the ID card or passport, if the investors are individuals; a copy of the business registration certificate, if the investors are legal entities;

- Proposal for the investment project including the following main content: investor, investment objectives, investment scale, investment capital and plan for raising capital, location, duration and schedule of the investment project, demand for labor, proposal for investment incentives, impact and socio – economic efficiency of the project;

- A certified copy of one of the following documents: the investor’s financial statements for the last two years of the investor; a parent company’s commitment to provide financial support; a financial institution’s commitment to provide financial support; guarantee for the investor’s financial capacity; other document proving the investor’s financial capacity;

- Proposed demand for land use; If the project does not require the State to allocate or lease out land or to permit land repurposing, a copy of the document regarding the land use rights or other document identifying the right to use the location for execution of the investment project is required to be submitted;

- The explanation for the technology to be used for projects using technologies on the List of technologies restricted from transferring under the law on technology transfer, including: Name and origin of technology, technology process diagram; list of main machinery/ equipment of technology lines, their status and specifications; equipment and main technology line;

- A business cooperation contract, for investment projects in the form of BCC contracts.

The time limit for carrying out administrative procedures:

- Within 35 days from the receipt of the application, the investment registration authority shall notify results to the investor.

- Within 03 working days from the date on which the sufficient application is received, the investment registration authority shall send relevant documents to relevant regulatory agencies to seek their opinions;

- Within 15 days from receipt of the written request for opinions, the requested agencies shall send their appraisal opinions on the content under their management to the investment registration authority.

- The land authority shall provide the map extract; the planning authority shall provide the planning information as the basis for appraisal as prescribed in this Article within 05 working days from the receipt of the request from the investment registration authority;

- Within 25 days from the receipt of the application, the investment registration authority shall prepare an appraisal report with the content prescribed in Article 33 of this Law and submit it to the provincial People's Committee;

- Within 07 working days from the receipt of the application and the appraisal report, the provincial People’s Committee shall grant the investment guideline approval, and provide a written explanation in the case of refusal.

The method of executing:

The investor shall submit the prescribed application to the investment registration authority.

The time limit for issuance of investment registration certificates:

The investment registration authority shall issue the Investment Registration Certificate to the investor within 15 days from the day on which the satisfactory application prescribed in Clause 1 of this Article is received if the following conditions are satisfied:

- The objectives of the investment project are not banned from business lines;

- The project satisfies the investment conditions applied to foreign investors as prescribed in the Law.

2.2. Content of the application for an investment project for a project under the province's People's Committee's jurisdiction to decide on investment policies

Composition of the dossier:

- An application form for execution of the investment project;

- A copy of ID card or passport if the investor is an individual; a copy of Certificate of Business registration if the investor is a juridical person;

- Proposal for the investment project including the following content: the investor’s financial statements for the last two years of the investor; a parent company’s commitment to provide financial support; a financial institution’s commitment to provide financial support; guarantee for the investor’s financial capacity; other document proving the investor’s financial capacity;

- A business cooperation contract, for investment projects in the form of BCC contracts.

The method of executing:

The investor shall submit the application specified in Point a above to the investment registration authority.

The investment registration authority shall seek appraisal opinions competent authorities about the content of investment projects under their management, including:

- The conformity of the investment project with the overall socio-economic development planning, sectoral development planning and land use planning;

- Proposed demand for land use; the conditions for land allocation or land lease, is permitted by the State to repurpose land. (for projects allocated land, leased land, permission to change land use purpose);

- Investment conditions for foreign investors (for projects with objectives of conditional investment sectors and trades for foreign investors);

- Investment incentives and conditions for enjoying investment incentives (for projects eligible for investment incentives);

- Technology used in the investment project (for projects using technologies restricted from transfer in accordance with the law on technology transfer.

The time limit for implementation:

- Within 25 days from the receipt of the valid applications, the investment registration authority shall prepare an appraisal report on the adjustments for submission to the provincial People’s Committee; Within 07 working days from the receipt of the applications and appraisal report of the investment registration authority, the provincial People’s Committee shall decide to approve adjustment of the investment guidelines;

- Within 05 working days from date of receiving the Prime Minister’s decision on approval for outward investment guidelines, the investment registration authority shall issue the Investment Registration Certificate to the investor;

- For the investment project which uses land allocated or leased out without land use right auction or bidding for investor selection, receipt of the rights to use land or property on land, projects that require repurposing of land in industrial parks, export processing zones, hi - tech zones, or economic zones in accordance with the planning approved by competent authorities, The investment registration authority shall seek appraisal opinions competent authorities and issue the Investment Registration Certificate to the investor within 25 days from the day on which the satisfactory application is received without requesting the People's Committee of the province to issue the investment policy decision.

2.3. Documentation serving administrative procedures for issuance of the investment certificate for an investment project to be decided by the Prime Minister

Composition of the dossier:

- An application form for adjustment of the investment registration certificate;

- Report on investment project’s progress by the time of adjustment;

- The investor’s decision on investment project adjustment;

- Explanation or documents relating to the adjustment of the content (if any);

The method of executing:

The investor submits a dossier to the investment registration authority.

The time limit for implementation:

- Within 03 working days from the receipt of the valid applications, the investment registration authority shall send 02 sets of application to the Ministry of Planning and Investment and the relevant competent authority.

- Within 15 days from the receipt of the valid applications, the request of the investment registration authority, the investment licensing agencies shall send their opinions on the content under their state management to the The investment registration authority and the Ministry of Planning and Investment;

(i) The proposal for expected demand for land use, the conditions for land allocation, lease out land or permit repurposing of land prescribed by the law on land (for projects allocated land, leased land, permission for repurposing of land);

(ii) Demand for land clearance and relocation plan (if any) or projects allocated land, leased land, permission for repurposing of land;

(iii) Other activities under the authority of the provincial People's Committee (if any)

- Within 15 days from the receipt of the opinions from the province's People's Committee, the Ministry of Planning and Investment shall make an appraisal report containing required information and submit it to the Prime Minister for decision on investment guidelines;

- Within 07 working days from the receipt of the appraisal report from the Ministry of Planning and Investment, the Prime Minister shall issue a decision on investment guidelines. The decision on investment guidelines shall be sent to the Ministry of Planning and Investment, the province's People's Committee and the investment registration authority;

- Within 05 working days from the receipt of the decision on investment guidelines, the investment registration authority shall issue the Investment Registration Certificate to the investor

- With regard to the investment project whose capital is VND 5, 000 billion or more, the investment registration authority shall consult with the Ministry of Planning and Investment and relevant authorities as prescribed to execute the procedures for issuance of the Investment Registration Certificate.

2.4. Procedures for issuance of the investment certificate

Step 1: The investor determines whether or not the investment project to be executed requires investment policy approval.

During the application procedure for an investment certificate, the investor should decide if the investment project qualifies for an investment policy under the Investment Law. If the investor wishes to apply for investment guidelines, the processes for applying for investment guidelines should be completed before the procedures for issuing an investment certificate.

Step 2: Create a dossier in preparation for the issuance of an investment registration certificate.

Applications for investment registration certificates have been consulted in the part above this article; please see the text above.

Step 3: Submit investment registration certificate applications

The investor must provide the following information to the registrar after completing the application for the certificate of investment registration:

- The Department of Planning and Investment applications, issuance, adjustment and revocation of investment registration certificates, as followed:

+ The investment projects outside industrial parks, export-processing zones, hi-tech zones and economic zones;

+ The investment projects on infrastructural development, export-processing zones, hi-tech zones in localities where management boards of industrial parks, export processing zones and hi - tech zones have not yet been set up.

- The boards of management of industrial parks, export processing zones, hi - tech zones and economic zones shall receive, issue, adjust and revoke investment registration certificates of investment projects in industrial parks, export processing zones, hi - tech zones and economic zones, including:

+ Investment projects on development of infrastructure of industrial parks, export processing zones and hi - tech parks;

+ Investment projects to be implemented in industrial parks, export processing zones, hi - tech parks or economic zones.

- The province’s Department of Planning and Investment where the investor's headquarters or executive office is located shall receive, issue, adjust, and revoke the Investment Registration Certificate of the following projects:

+ Projects located in multiple provinces;

+ Investment projects executed both inside and outside industrial parks, export processing zones, hi - tech parks and economic zones.

Step 4: Appraisal of dossiers and issuing investment registration certificates

The registrar must validate the application for the Investment Registration Certificate when it is filed. If the application is approved, the registrar shall issue the Investment Registration Certificate to the investor. If the application contains errors, the register shall request the investor to supplement or amend the application.

Step 5: Submit an application for a Business Registration Certificate

Following the issuance of the investment registration certificate, the investor will submit a dossier to the Department of Planning and Investment in order to apply for a business registration certificate

Step 6: Engraving the company's legal entity seal, publishing the seal sample and publishing enterprise information

To be able to legally utilize the business seal, the investor will carry out processes for publishing enterprise information, engraving the firm's legal entity seal, and publishing the seal sample on the national portal.

2.5. Detailed fee:

Please contact via phone number: 0989.386.729 or email: [email protected] for the detailed fee.

III. CONFIDENTIALITY

All the information, communication, documents and agreements between the Parties will be committed to absolute confidentiality and will only be exchanged with other Third Parties with the written consent of both Parties.

The above content is the HTC Vietnam's recommendations that comply with your requirement. We look forward to your review and acceptance. If any other research on this issue is needed, feel free to contact us for a response.

We are looking forward to a long-term cooperation.

Best Regards!

______________________________

For more details, please contact:

HTC Vietnam Law Firm

Address: 15th Floor, Multipurpose Building, 169 Nguyen Ngoc Vu, Trung Hoa Ward, Cau Giay District, Hanoi.

Tel: 0989.386.729; Email: [email protected]

Website: https://htc-law.com; https://luatsuchoban.vn

(Writer: ; Date: 23/07/2021)

Translator: Pham Nguyen Nhat Linh