CONSULTATION ON PROCEDURES FOR ADJUSTING THE CERTIFICATE OF INVESTMENT REGISTRATION DUE TO PROJECT TRANSFER

CONSULTATION ON PROCEDURES FOR ADJUSTING THE CERTIFICATE OF INVESTMENT REGISTRATION DUE TO PROJECT TRANSFER

Due to various reasons, investors may find it necessary to transfer their investment projects to other investors. Article 45, Clause 1 of the 2014 Investment Law permits investors to transfer their entire investment project or a portion thereof. Alongside the project transfer, the investment registration certificate also necessitates appropriate adjustments to be made.

I. Legal basis

- Investment Law 2014

- Decree 118/2015/ND-CP

II. Scope of consultation

1. The fulfillment of conditions for project transfer

Under the Article 45 of the Law on Investment 2014, Investors are entitled to transfer the entirety or a portion of an investment project to other investors, provided that the following conditions are met:

- The project is not terminated in the cases as prescribed in Clause 1 Article 48 of the Law on Investment 2014;

- Investment conditions applied to foreign investors are satisfied in case the foreign investor receives a project of investment in conditional business lines;

- Regulations of law on law, real estate trading is complied with if the project transfer is associated with transfer of land;

- Conditions in the Certificate of investment registration or relevant regulations of law are complied with.

2. Application for adjustment of the Certificate of Registration

The transferor shall arrange a set of application for the investment registration authority, which consists of:

- A written request for permission for project adjustments,

- A report on the project’s progress up to the time of transfer;

- The project transfer contract or another document with equivalent legal value;

- Copies of the ID card or passport (if the investor is an individual) or Certificate of Enterprise Registration or another document with equivalent legal value (if the investor is an organization);

- Copies of the Investment Registration Certificate or decision on investment guidelines (if any);

- Copies of the BCC contract (for BCC projects);

- Copies of one of the following documents of the transferee: financial statements of the last 02 years; commitment to provide financial support by the parent company, commitment to provide financial support by a financial institution, the guarantee of transferee’s financial capacity, documents describing the transferee’s financial capacity.

3. Procedures for adjusting Investment Registration Certificates

a. Procedures for changing the investor of a project operating under an Investment Registration Certificate which is not required to have a decision on investment guidelines:

- The transferor shall submit a set of application to the investment registration authority.

- The investment registration authority shall consider the fulfillment of conditions for project transfer to adjust the Investment Registration Certificate within 10 working days from the day on which the valid application.

b. Procedures for changing the investor of a project operating under an Investment Registration Certificate whose decision on investment guidelines is issued by the People’s Committee of the province:

- The investor shall submit 04 sets of application specified in Point 2 Clause 2 of this Article to the investment registration authority;

- Within 03 working days from the receipt of the valid application as set out in Point a of this Clause, the investment registration authority shall send 02 it to competent authorities to receive comments about the conditions for project transfer specified in Clause 1 Article 45 of the Law on Investment;

- Within 10 working days from the day on which the request of the investment registration authority is received, the authorities mentioned in Point b of this Clause shall make comments about the issues under their management;

- Within 20 days from the receipt of the valid application, the investment registration authority shall make a report on fulfillment of conditions for project transfer according to Clause 1 Article 45 of the Law on Investment and submit it to the People’s Committee of the province;

- Within 05 working days from the receipt of the report from the investment registration authority, the People’s Committee of the province shall consider issuing a decision on adjustments to investment guidelines;

- Within 03 working days from the receipt of the decision on adjustments to investment guidelines, the investment registration authority shall adjust the Investment Registration Certificate of the transferee.

c. Procedures for changing the investor of a project operating under an Investment Registration Certificate whose decision on investment guidelines is issued by the Prime Minister:

- The investor shall submit 08 sets of application specified in Point 2 Clause 2 of this Article to the investment registration authority;

- Within 25 days from the receipt of the valid application as set out in Point a of this Clause, the investment registration authority shall request the People’s Committee of the province to consider and send comments about the issues specified in Point c and Point d Clause 1 Article 45 of the Law on Investment (if any) to the Ministry of Planning and Investment.

- Within 10 working days from the receipt of comments from the People’s Committee of the province, the Ministry of Planning and Investment shall make a report on fulfillment of conditions for project transfer as set out in Clause 1 Article 45 of the Law on Investment;

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

- Within 05 working days from the receipt of the decision on adjustments to investment guidelines, the investment registration authority shall adjust the Investment Registration Certificate of the transferee.

d. Others:

- With regard to a project having a decision on investment guidelines issued by the management board of an industrial park, export-processing zone, hi-tech zone, or economic zone (hereinafter referred to as management board), the management board shall decide the adjustments to investment guidelines when the conditions specified in Clause 1 Article 45 of the Law on Investment are fulfilled.

- With regard to a project having a decision on investment guidelines, if the investor in which has finished contributing and/or raising capital, and the project has been put into operation, it is not required to follow the procedures for adjusting investment guidelines specified in Clause 3 through 6 of this Article. Where project is executed under an Investment Registration Certificate, the investor shall follow procedures for adjusting the Investment Registration Certificate as set out in Clause 2 of this Article.

- Where a foreign investor receives a project and establish a business organization to execute it, such foreign investor shall follow procedures for issuing or adjusting the Investment Registration Certificate, then follow procedures for establishing a business organization in accordance with regulations of law on establishment of the corresponding type of business organization.

The foregoing represents our advice on the coordination mechanism for investors to invest in the form of capital contribution, purchase of shares/stakes To gain a comprehensive understanding of the procedures or conducting investment through capital contribution, share/stake purchase please feel free to contact us for specific consultations. HTC Vietnam Law Firm is honored to accompany clients in resolving all legal issues. Please contact us for the best consulting services.

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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]

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(Writer: NMay; Date: )

Translator: Pham Nguyen Nhat Linh