LEGAL CONSULTATION ON PROCEDURES FOR ADJUSTING THE INVESTMENT CERTIFICATE

LEGAL CONSULTATION ON PROCEDURES FOR ADJUSTING THE INVESTMENT CERTIFICATE

LEGAL CONSULTATION

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

Re: Legal advice on procedures for adjusting the investment certificate

Dear…,

Company

Address:

Phone number:

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

Clients have the desire to be consulted on procedures for adjusting the investment certificate.

We understand from your provided information that: You expect HTC Vietnam Law Firm (HaNoi Bar Association) to provide consulting services on issues of procedures for adjusting the investment certificate, as well as the necessary legal procedures of the above services.

II. SCOPE OF CONSULTATION

1. The legal basis

- Law No. 61/2020/QH14 The Law 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 adjusting the investment certificate.

2.1. Adjustment of investment certificate

Investment registration certificate (or Investment certificate) means a physical or electronic document bearing information registered by an investor about an investment project.

Adjustment of investment certificate refers to a procedure carried out by an organization or individual (the owner of an investment project) to adjust information on an investment registration certificate issued by a competent authority in accordance with the law.

Features of the adjustment of investment certificates

- Must be executed by the legal owner of the investment project or a legally authorized person;

- Submitted at a competent authorities;

- The adjustments must be accurate to the changing reality and supported by legal proof;

- Adjusting the investment project is not opposed to the law, zoning and local plan of the area where the project is located.

2.2. Cases of adjustment of investment certificates

An investment project owner has the right to adjust an investment project in the following cases:

- Change the investment project code;

- Change the name, address and information of the investor;

- Change the name of the investment project;

- Change the investor;

- Change the location and land area of the investment project;

- Change, transfer an investment project;

- Change the objectives and scale of the project;

- Change the capital contribution/ stakes (including the investor's contributed capital and raised capital): increase outward investment capital,...;

- Change the capital contribution and capital raising schedule;

- Change the schedule of achievement of primary operational objectives of the investment project; execution schedule of each stage (if the project is divided into multiple stages);

- Change any technology that has been appraised or about which opinions have been collected during the process of approving the investment guidelines;

- Investment incentives, investment assistance (and conditions for application thereof);

Note: According to Clause 4, Article 41 of the Law on Investment 2020, if the investment project whose investment guidelines are approved, the investor is not allowed to extend the investment execution schedule by more than 24 months compared to that stated in the first written approval for investment guidelines, except for one of the following cases:

- It is necessary to remedy the consequences of an event of force majeure in accordance with the civil law and the land law;

- The project execution schedule is adjusted because the State delays allocating or leasing out land to the investor or allowing the investor to repurpose land.

- The project execution schedule is adjusted at the request of a regulatory agency or the regulatory agency delays in performing administrative procedures;

- The investment project is adjusted because the regulatory agency changes the planning;

- Any objective specified in the written approval for investment guidelines is changed; any objective that is subject to approval for investment guidelines is added;

- The total investment capital is increased or reduced by 20% or more, thereby changing the scale of the investment project.

2.3. Documentation serving administrative procedures for adjusting the investment certificate.

- 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 if the investor is an organization or an equivalent document if the investor is an individual;

Explanation or documents relating to the adjustment of the contents as follows:

+ A document about the investor’s legal status;

+ Document(s) proving the financial capacity of the investor including at least one of the following documents: the investor’s financial statements for the last two years; commitment of a parent company to provide financial support; commitment of a financial institution to provide financial support; guarantee for the investor’s financial capacity; other document proving the investor’s financial capacity;

+ Proposal for the investment project including the following main contents: investor or method of investor selection, investment objectives, investment scale, investment capital and plan for raising capital, location, duration and schedule of the investment project, information about the current use of land in the location of the project and proposed demand for land use (if any), demand for labor, proposal for investment incentives, impact and socio – economic efficiency of the project and preliminary assessment of environmental impact (if any) in accordance with regulations of law on environmental protection. If the law on construction requires formulation of a pre-feasibility study report, the investor is entitled to submit the pre-feasibility study report instead of a proposal for the investment project;

+ 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;

+ Contents of the explanation for the technology to be used in the investment project if the project requires appraisal and collection of opinions on the technology in accordance with the Law on Technology Transfer;

+The business cooperation contract if the investment project is executed under a business cooperation contract;

+ Other documents relating to the investment project, and requirements on the eligibility and capacity of the investor in accordance with regulations of law (if any).

2.4. Procedures for adjusting the investment certificate.

Step 1: Before following procedures for issuance or adjustment of the investment registration certificate, the investor shall make an online declaration of information about the investment project on the National Investment Information System.

Step 2: Within 15 days from the date of online declaration of application, the investor shall submit an application for issuance or adjustment of the investment registration certificate to the investment registration authority.

Step 3: After the outward investment registration certificate is issued, the investor shall be granted an account to access the National Investment Information System to keep track of how the application is being processed.

Step 4: The investment registration authority shall use the National Investment Information System to receive and process applications, return results, update the processing of applications and issue project codes.

Step 5: Change the relevant information on Enterprise Registration Certificate and post it on the National Enterprise Registration Portal.

If the adjustment of the Investment Certificate alters important information in the Enterprise Registration Certificate, the investor must follow the procedures for adjusting the enterprise registration that comply with the Law on Enterprise 2020:

Notes for adjusting the investment registration certificate

- If the investor's request for adjustments to the Investment Registration Certificate leads to the project being subject to the issuance of the decision on investment guidelines, the investment registration authority shall follow procedures for issuance of the decision on investment guidelines before adjusting the Investment Registration Certificate.

- For enterprises that have not yet carried out procedures for separation of enterprise registration certificates, they shall have to separate investment certificates into investment registration certificates and enterprise registration certificates and re-grant new seals according to regulations;

- For newly adjusted business lines which are conditional, the enterprises shall be requested to ensure the conditions in the course of operation.

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