Decree no. 108-2006-ND-CP. invesment

GOVERNMENT SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
No. 108-2006-ND-CP

Hanoi , 22 September 2006

DECREE
PROVIDING GUIDELINES FOR
IMPLEMENTATION OF A NUMBER OF ARTICLES OF
LAW ON INVESTMENT

The Government

– Pursuant to the Law on Organization of the Government dated 25 December 2001;
– Pursuant to the Law on Investment dated 29 November 2005;
– Having considered the proposal of the Minister of Planning and Investment;

Decrees:

CHAPTER I
General Provisions

Article 1 Governing scope and applicable entities

1. Governing scope:

(a) This Decree provides guidelines for implementation of a number of articles of the Law on Investment dated 29 November 2005 in relation to investment activities for business purposes; rights and obligations of investors; guarantees for lawful rights and interests of investors; encouragement and investment incentives; and State administration of investment in Vietnam;

(b) The Government shall provide separate regulations on offshore investment; and on investment activities in the form of build-operate-transfer contract, build-transfer operate contract and build-transfer contract;

(c) Indirect investment activities in the form of purchase of shareholding, shares, bonds and other valuable papers; and investment in securities and investment through other intermediary financial institutions without direct participation of investors in management and administration of an economic organization shall be implemented in accordance with the law on securities and other relevant laws;

(d) Any special investment activities stipulated in a specialized branch law shall be subject to the provisions of such law.

2. The applicable entities of this Decree comprise the investors stipulated in article 4.3 of the Law on Investment and organizations and individuals related to investment activities.

Article 2 Interpretation of terms

In this Decree, the following terms shall be construed as follows:

1. Invested capital means Vietnamese dong, freely convertible foreign currency and other lawful assets for implementation of investment activities in the form of either direct or indirect investment. Lawful assets shall include:

(a) Shareholding, shares and other valuable papers;

(b) Bonds, debts and other forms of borrowing;

(c) Contractual rights comprising rights pursuant to turn-key contracts, construction contracts, management contracts, and product or revenue sharing contracts;

(d) Rights to recover debts and contractual rights with economic value;

(dd) Technology and intellectual property rights including trademarks, industrial designs, inventions, trade names, origin or appellation of origin of goods;

(e) Confessional rights including rights pertaining to exploration and mining of natural resources;

(g) Real property; rights with respect to real property including the right to lease out, to assign, to mortgage and to provide guarantees;

(h) Items of revenue derived from investment activities and including profits and interest on shareholding, dividends, royalties and all types of fees;

(i) Assets and rights with other economic value in accordance with law and international treaties of which Vietnam is a member.

2. New investment projects means projects which are implemented for the first time or new investment projects which are independent from the project currently operating.

3. Investment project for expansion of scale means an investment project for the development of a project currently being implemented for the purpose of expansion of scale, increased output capacity or business capability, renovation of technology, improved product quality or reduced environmental pollution.

4. Foreign investor investing in Vietnam for the first time means a foreign investor who for the first time has an investment project in Vietnam.

Article 3 Application of investment laws, international treaties, foreign laws and international investment custom

1. The application of investment laws, international treaties, foreign laws and international investment custom shall be as stipulated in article 5 of the Law on Investment.

2. In cases where the law of Vietnam issued after Vietnam became a member of an international treaty contains provisions which are more favorable than such international treaty, investors shall be entitled to choose the application of the international treaty or the law of Vietnam.

Article 4 Language to be used

The files of an investment project and official correspondence with the State bodies of Vietnam shall be prepared in Vietnamese in the case of domestic investment projects; and in the case of projects with foreign invested capital, they shall be prepared in Vietnamese or in Vietnamese and a commonly used foreign language. If there is any difference between the Vietnamese language version of a document and the foreign language version, the Vietnamese version shall be applied.

CHAPTER II
Forms of Investment

Article 5 Forms of investment

Investors shall carry out investment activities in Vietnam in the forms of investment stipulated in articles 21 to 26 inclusive of the Law on Investment and the provisions of this Decree.

Article 6 Establishment of economic organizations and implementation of investment projects

1. Domestic investors with an investment project associated with the establishment of an economic organization shall carry out procedures for business registration in accordance with the Law on Enterprises and relevant laws and shall carry out investment procedures in accordance with the Law on Investment and this Decree.

2. Foreign investors investing in Vietnam for the first time must have an investment project and shall conduct investment procedures in order to be issued with an Investment Certificate in accordance with the Law on Investment and this Decree. The Investment Certificate shall act concurrently as the business registration certificate.

3. With respect to foreign investors issued with an Investment Certificate in Vietnam:

(a) If they have a new investment project but do not establish a new legal entity, they shall conduct investment procedures in order to be issued with an Investment Certificate in accordance with the provisions of the Law on Investment and this Decree;

(b) If they have a new investment project associated with the establishment of a new legal entity, they shall conduct investment procedures in accordance with the provisions in clause 2 of this article.

Article 7 Establishment of economic organizations with one hundred (100) percent capital of investors

1. Domestic investors and foreign investors shall invest in the form of one hundred (100) percent of their own capital to establish a limited liability company, shareholding company, partnership or private enterprise in accordance with the provisions of the Law on Enterprises and relevant laws.

2. Enterprises with one hundred (100) per cent foreign owned capital which have already been established in Vietnam shall be permitted to co-operate with each other or with foreign investors in order to establish a new enterprise with one hundred (100) percent foreign invested capital.

3. An enterprise with one hundred (100) per cent foreign owned capital shall be a legal entity in accordance with the law of Vietnam and shall be established and operate as from the date of issuance of the Investment Certificate.

Article 8 Establishment of joint venture economic organizations between domestic investors and foreign investors

1. Foreign investors shall be permitted to have a joint venture with domestic investors in order to establish a limited liability company with two or more members, a shareholding company or a partnership in accordance with the provisions of the Law on Enterprises and relevant laws.

2. An enterprise established pursuant to the provisions in clause 1 of this article shall be permitted to have a joint venture with domestic investors and foreign investors in order to establish a new economic organization in accordance with the provisions of the Law on Enterprises.

3. An enterprise carrying out investment in the form of a joint venture shall be a legal entity in accordance with the law of Vietnam and shall be established and operate as from the date of issuance of the Investment Certificate.

Article 9 Investment in the form of a business co-operation contract

1. In the case of investment in the form of a business co-operation contract signed between one or more foreign investors with one or more domestic investors (hereinafter referred to as the co-operating parties), the business co-operation contract must stipulate the interests and responsibilities of, and the sharing of business results as between each investor.

2. A business co-operation contract in the sector of prospecting, exploration for and mining petroleum and a number of other natural resources in the form of a product sharing contract shall be performed in accordance with relevant laws and the Law on Investment.

3. A business co-operation contract signed between domestic investors to conduct investment and business shall be in accordance with the law on economic contracts and relevant laws.

4. During the process of business, the co-operating parties may agree to establish a coordination board to perform the business co-operation contract. The functions, duties and powers of the co-ordination board shall be as agreed by the co-operating parties. The coordination board shall not be the leadership body of the co-operating parties.

5. The foreign co-operating party shall be permitted to establish an operating office in Vietnam to act as its representative during the performance of the business co-operation contract.

The operating office of a foreign co-operating party shall have a seal, may open bank accounts, recruit employees, sign contracts and conduct all business activities within the scope of the rights and obligations stipulated in the Investment Certificate and business co-operation contract.

Article 10 Investment in the form of capital contribution, purchase of shareholding, merger and acquisition of enterprises

1. An investor shall have the right to contribute capital, purchase shareholding, and to merge and acquire an enterprise in order to participate in management of investment activities in accordance with the provisions of the Law on Enterprises and relevant laws.

The merged and acquired enterprise shall assume the rights and obligations of the merging and acquiring enterprise, unless otherwise agreed by the parties.

2. When an investor contributes capital, purchases shareholding, merges or acquires an enterprise in Vietnam, such investor must implement the provisions in international treaties of which Vietnam is a member on ratio of capital contribution, forms of investment and schedule for opening the market; must comply with the provisions on conditions for economic concentration of the law on competition and the law on enterprises; and must satisfy the conditions for investment if the investment project is in a sector in which investment is conditional.

CHAPTER III
Rights and Obligations of Investors

Article 11 Autonomy in investment and business

1. Investors shall have autonomy in investment and business in accordance with article 13 of the Law on Investment, except for investment and business in sectors in which investment and business is prohibited by law.
2. With respect to conditional sectors, investors shall have autonomy in investment and business if they satisfy the conditions for investment stipulated by law.

Article 12 Right to access and use credit, land and natural resources

Investors shall have equal rights to access and use credit sources, land and natural resources in accordance with law.

Article 13 Rights regarding hiring and employment of labor, and establishing trade unions
Investors shall have the right:

1. To hire domestic employees and foreign employees as managers, technicians and experts in accordance with the requirements of production and business. If an international treaty of which Vietnam is a member contains different provisions, the provisions of such international treaty shall apply.

2. To decide the salary and the minimum salary rate of employees in accordance with the law on labor.

3. To establish trade unions in enterprises in accordance with the law on labor.

Article 14 Rights to export, import, advertise, conduct marketing, and conduct processing and re-processing relating to investment activities Investors shall have the right:

1. To export directly or authorize dealers to export, and to directly import or authorize dealers to import machinery, equipment, raw materials and goods for investment activities; and to advertise, conduct marketing, and process and re-process goods relating to the activities stipulated in article 15 of the Law on Investment and in the commercial law.

2. To invest in the sectors of importation, exportation, distribution and other commercial services consistent with the law on investment, the commercial law and international treaties of which Vietnam is a member.

Article 15 Right of purchase and sale of goods between export processing enterprises and the domestic market

1. Export processing enterprises shall be permitted to purchase goods from the Vietnamese market in order to produce, process, re-process and assemble export goods or in order to export, except for goods in the category of prohibited exports.

2. Export processing enterprises shall be permitted to sell the following goods on the Vietnamese market:

(a) Products produced by the export processing enterprise and not in the category of prohibited imports;

(b) Products produced by the export processing enterprise for which there is a demand on the domestic market;

(c) Scrap and waste products which are collected from production and which are not prohibited imports or which are in the category permitted to be imported in accordance with the commercial law and relevant laws.

3. The relationship of purchase and sale of goods between export processing enterprises and the domestic market shall be subject to the commercial law.

Article 16 Right to open bank accounts and purchase foreign currency

1. Investors shall be permitted to open Vietnamese dong accounts and foreign currency accounts with credit institutions in Vietnam in accordance with the law on foreign exchange control. investors may open bank accounts in offshore banks with approval from the State Bank of Vietnam.

The conditions and procedures for opening, using and closing bank accounts at credit institutions in Vietnam and in overseas banks shall be implemented in accordance with the law on foreign exchange control and relevant laws.

2. Investors shall be permitted to purchase foreign currency from credit institutions authorized to trade in foreign currency in order to meet requirements for current transactions, capital transactions and other permitted transactions in accordance with the law on foreign exchange control.

3. The Government shall support foreign exchange balancing in cases where authorized credit institutions are not able to satisfy the demand for foreign currency of investors with respect to a number of important projects in the following sectors:

(a) Energy;

(b) Waste treatment;

4. The Prime Minister of the Government shall make decisions on guaranteeing the foreign currency balance for investors with investment projects in the sectors stipulated in clause 3 of this article. A guarantee of foreign currency balance shall be stipulated in the Investment Certificate.

Article 17 Right to access land and right to mortgage land use rights and assets attached to land

1. Provincial people’s committees shall publish zoning and plans for land use approved by the competent body so that investors may contact the land fund for investment development.

2. Investors shall be permitted to mortgage land use rights and assets attached to land with credit institutions authorized to operate in Vietnam in order to borrow capital to implement projects in accordance with the law on land and relevant laws.

Article 18 Other rights of investors:

1. To enjoy investment incentives in accordance with the provisions of this Decree and relevant laws.

2. To access and use public services and utilities on the principle of non-discrimination between investors.

3. To select forms of investment, scale of investment and ratio of invested capital, and to determine their own investment and business activities. If an international treaty of which Vietnam is a member contains different provisions, the provisions of such international treaty shall apply.

4. To access legal instruments and policies relating to investment, data on the national economy and on each economic sector, and other socio-economic information relating to investment activities.

5. To provide recommendations on laws and policies relating to investment immediately as from the drafting stage in accordance with law.

6. To lodge complaints and denunciations and to take legal action in accordance with law against any organization or individual in breach of the law on investment.

7. To exercise other rights in accordance with law.

Article 19 Rights of investors investing in industrial zones, export processing zones, high-tech zones and economic zones

1. In addition to the rights stipulated in articles 11 to 18 inclusive of this Decree, investors investing in production and business in industrial zones, export processing zones, high-tech zones and economic zones shall have the following rights:

(a) To lease or purchase factories, offices and warehouses which have been built in industrial zones, export processing zones, high-tech zones and economic zones in order to service production and business;

(b) To use, with payment of charges, technical infrastructure facilities, public utilities and service works including systems of roads, electricity supply, water supply, water drainage, communications, water drains and waste treatment and other public services and utilities in industrial zones, export processing zones, high-tech zones and economic zones;

(c) To transfer and receive a transfer of land use rights and to lease land on which technical infrastructure facilities have been built in industrial zones, export processing zones, high-tech zones and economic zones in order to build factories, offices and other buildings servicing production and business in accordance with the law on land and the law on real estate business.

2. Investors investing in and conducting commercial operation of2 infrastructure facilities in industrial zones, export processing zones, high-tech zones and economic zones shall have the following rights:

(a) To construct factories, offices and warehouses in the industrial zone, export processing zone, high-tech zone or economic zone for sale or for lease;

(b) To determine land leasing and sub-leasing prices where such land contains constructed infrastructure; to determine the charges for use of technical infrastructure works, public service and public utility works in the industrial zone, export processing zone, high-tech zone or economic zone; and to determine leasing and selling prices of factories, offices and warehouse and to determine service charges;

(c) To collect charges for the use of infrastructure, public service and public utility works in the industrial zone, export processing zone, high-tech zone or economic zone in accordance with regulations of the Ministry of Finance;

(d) To transfer to another investor land use rights, and to lease out and sub-lease out [to another investor] land on which technical infrastructure facilities have been built in the industrial zone, export processing zone, high-tech zone or economic zone in accordance with the law on land and the law on real estate business.

Article 20 Right to an investment guarantee in a case of change in law and policies

1. In a case where a newly promulgated law or policy adversely affects the lawful interests to which an investor was entitled before such new law or policy took effect, the investor shall be guaranteed entitlement to the incentives stipulated in the Investment Certificate or shall be subject to one or more of the following measures:

(a) Continued entitlement to the existing rights and incentives;

(b) Deduction of a part of the losses from taxable income;

(d) Consideration for compensation in some necessary cases.

2. With respect to the measure for compensation stipulated in paragraph (d) of clause 1 of this article, the Investment Certificate-issuing body shall recommend the Prime Minister of the Government issue a decision guaranteeing the investor’s interests as a consequence of the change in law or policy adversely affecting such investor’s interests.

Article 21 Obligations and responsibilities of investors

1. Obligations of investors:

(a) To comply with the law on investment; to carry out investment activities correctly in accordance with the contents of investment registration and of Investment Certificates.

(b) To perform fully financial obligations in accordance with law;

(d) To perform obligations in accordance with the law on insurance and labor; to respect the honor and dignity of, and to protect the legitimate rights of employees;

(dd) To respect political and social-political organizations and to create favorable conditions for employees to establish and participate in political and socio-political organizations in accordance with law;

(e) To comply with the law on the environment;

(g) To discharge other obligations in accordance with law.

2. Responsibilities of investors:

(a) To bear liability for the accuracy and truthfulness of the contents of investment registration documents and investment project files, and for the legality of documents in investment project files;

(b) To submit reports on such investor’s investment activities in accordance with the provisions of this Decree and relevant laws; and to bear liability for the accuracy and truthfulness of the contents of such reports;

(c) To provide documents, data and information relating to the contents of an examination, inspection or supervision of investment activities to authorized State bodies in accordance with law.

CHAPTER IV
Investment Incentive Sectors and Geographical Areas;
Investment Support

SECTION I
Investment Incentives

Article 22 Sectors and geographical areas of investment incentives

1. The list of sectors entitled to investment incentives comprising sectors entitled to special investment incentives and sectors entitled to investment incentives is stipulated in Appendix I issued with this Decree.

2. The list of geographical areas with specially difficult socio-economic conditions and geographical areas with difficult socio-economic conditions is stipulated in Appendix II issued with this Decree.

3. Investment projects on the list of sectors entitled to special investment incentives as stipulated in Appendix I issued with this Decree shall be entitled to the same incentives as applicable to geographical areas with specially difficult socio-economic conditions stipulated in Appendix II issued with this Decree.

Article 23 Sectors in which investment is conditional and sectors in which investment is prohibited

1. Sectors in which investment is conditional and sectors in which investment is prohibited are stipulated in articles 29 and 30 respectively of the Law on Investment.

2. The list of sectors in which investment is conditional applicable to foreign investors is stipulated in Appendix III; and the list of sectors in which investment is prohibited is stipulated in Appendix IV issued with this Decree.

Article 24 Applicable entities for investment incentives

1. Investors with investment projects, including investment projects for expansion of scale, on the list of investment incentive sectors and geographical areas issued with this Decree shall be entitled to investment incentives in accordance with the Law on Investment and relevant laws.

Article 25 Incentives regarding corporate income tax and import duty

1. Investors with investment projects in the investment incentive sectors and geographical areas stipulated in this Decree shall be entitled to incentives regarding corporate income tax in accordance with the law on corporate income tax.

2. Investors with investment projects in the investment incentive sectors and geographical areas stipulated in this Decree shall be entitled to incentives regarding import duty with respect to imported goods in accordance with the law on import and export duties.

Article 26 Incentives in relation to land use tax, land use fees, land rent and water surface rent

Investors to whom the State allocates land without collection of land use fees, [or] allocates land with payment of land use fees or leases land with an investment project in an investment incentive sector or geographical area as stipulated in this Decree shall be entitled to exemption or reduction of land use tax, land use fees, land rent and water surface rent in accordance with the law on land and the law on taxation.

Article 27 Procedures for implementation of investment incentives

Procedures for implementation of investment incentives shall be implemented in accordance with article 38 of the Law on Investment.

Article 28 Amending and supplementing investment incentives

1. If during implementation of an investment project an investor has satisfied further conditions for entitlement to investment incentives, the investor shall be entitled to such investment incentives and shall have the right to request the Investment Certificate issuing body to amend or supplement the investment incentives stipulated in the issued Investment Certificate.

2. If during implementation of an investment project an investor fails to satisfy in practice the conditions for entitlement to investment incentives, such investor shall not be entitled to the investment incentives.

3. The State administrative body implementing investment incentives for investors shall be responsible for notifying the Investment Certificate-issuing body of the failure of the investor to satisfy in practice the conditions for entitlement to investment incentives.

Article 29 Application of incentives to investment projects

1. An investor currently entitled to incentives pursuant to the provisions of the Law on Promotion of Domestic Investment, the Law on Foreign Investment in Vietnam, the Law on Co-operatives and the law on taxation shall continue to be entitled to such investment incentives.

2. An investor with an investment project currently being implemented and which falls within the category stipulated in article 24 of this Decree shall be entitled to the investment incentives for the remaining duration as from the effective date of this Decree.

3. In a case where a newly promulgated law or policy provides more favorable benefits and incentives than those which the investor previously enjoyed, such investor shall be entitled to the new benefits and incentives for the remaining duration (if any) of incentives as from the effective date of such new law or policy.

4. If an international treaty of which Vietnam is a member contains different provisions from those stipulated in clauses 1, 2 or 3 of this article, the provisions of clause 3 of this article shall apply.

SECTION II
Investment Support

Article 30 Technology transfer support

1. The Government shall create favorable conditions for technology transfer and shall ensure the legitimate rights and interests of technology transfer parties, including capital contribution by technology in order to implement investment projects in Vietnam in accordance with the law on intellectual property and the law on technology transfer.

The value of technology used for capital contribution or of technology transferred shall be as agreed by the parties and shall be stipulated in the technology transfer contract.

2. The Government encourages the transfer into Vietnam of modern technology, source technology and other technologies in order to create new products; to improve production, competitive capacity and product quality; and to save and effectively use raw materials, fuel, energy and natural resources. The Government encourages investment in the reform of technology and improvement of the management and use of technology.

3. Based on the objectives of socio-economic development, the Government has a policy of providing support to small and medium sized enterprises to invest in research and development of technology and in technology transfer.

4. The rights and obligations of technology transfer parties and the order and procedures for technology transfer shall be implemented in accordance with the law on technology transfer.

Article 31 Training support

1. The Government encourages the establishment of training support funds from
contributions and aid from domestic and foreign organizations and individuals as follows:

(a) Training support funds shall be established for non-profit purposes; and shall be entitled to tax exemption and reduction in accordance with the law on taxation;

(b) Training fees of economic organizations shall be accounted as reasonable expenses when determining taxable corporate income.

2. The Government shall provide support from the State Budget for the training of employees in economic organizations via the manpower support program.

3. The Government has a master plan and program to help train manpower for small and medium sized enterprises.

Article 32 Support for investment development and investment services

1. The Government provides support for investment development to projects which satisfy the following criteria:

(a) Projects in important industries and sectors in major economic programs which directly affect economic restructuring and accelerate sustainable economic growth but where the State Budget does not grant and commercial banks do not provide loans on normal conditions due to the risks;

(b) [Projects] consistent with the provisions of law;

2 Credit support for investment shall be implemented in accordance with the law on State credit support for investment development.

3. The Government encourages and supports organizations and individuals, without discrimination between different economic sectors, to carry out the following investment support services:

(a) Investment consultancy, management consultancy;

(b) Intellectual property consultancy, technology transfer consultancy;

(d) Provision of market information, technical scientific information, technology and other economic and social information requested by investors;

(dd) Marketing, trade and investment promotion;

(e) Establishment of and participation in social and socio-professional organizations in accordance with law;

(g) Establishment of design centers and testing centers to support the development of small and medium sized enterprises.

Article 33 Investment support for construction of infrastructure outside the fence of industrial zones, export processing zones and high-tech zones

1. The Government encourages and has incentive policies for all economic sectors to invest in construction of technical and social infrastructure works outside the fence of industrial zones, export processing zones and high-tech zones.

2. Based on the overall master plan for development of industrial zones, export processing zones, high-tech zones and economic zones approved by the Prime Minister of the Government, ministries, branches and people’s committees in provinces and cities under central authority (hereinafter referred to as provincial people’s committees) shall develop investment plans and organize construction of technical and social infrastructure systems outside the fence of industrial zones, export processing zones, high-tech zones and economic zones.

3. Provincial people’s committees shall balance support sources from their local budgets to support investment in construction of technical and social infrastructure works outside the fence of industrial zones, export processing zones, high-tech zones and economic zones.

Article 34 Investment support for infrastructure systems inside the fence of industrial zones and export processing zones

1. The Prime Minister of the Government shall regulate the conditions, principles, limits and items of works of construction works entitled to State Budget support for some localities with difficult socio-economic conditions and specially difficult socio-economic conditions in order for the State and investors to jointly invest in developing technical infrastructure systems inside the fence of industrial zones and export processing zones.

2. Provincial people’s committees shall balance their local budgets to support investors investing in developing technical infrastructure systems inside the fence of industrial zones and export processing zones.

Article 35 Methods of investment in technical infrastructure systems in industrial zones and export processing zones

1. Investment and commercial operation of technical infrastructure systems in industrial zones and export processing zones may be implemented by one or more investors who must ensure consistency and uniformity with the approved detailed master plan for construction of such zone as approved by the competent authority, and they must clearly stipulate the rights and obligations of each investor.

2. With respect to geographic areas with specially difficult socio-economic conditions and based on the specific conditions of each province, provincial people’s committees shall make a submission to the Prime Minister of the Government for his decision on permission to establish an income-receiving professional unit to be the investment owner of an investment project for construction and commercial operation of technical infrastructure of an industrial zone or export processing zone.

Article 36 Support for investment in development of infrastructure systems of economic zones and high-tech zones

1. The Government reserves investment capital from the State Budget to support the following cases:

(a) Investment in development of technical and social infrastructure systems outside functional areas and important public services works in economic zones;

(b) Compensation for site clearance within functional areas and resettlement areas including re-settled agricultural areas for households whose land is recovered;

2. The Government encourages and has incentive policies applicable to investors in all economic sectors to invest in development of technical and social infrastructure systems of economic zones.

3. The Prime Minister of the Government shall decide methods of mobilization of other capital sources for investment in development of technical and social infrastructure systems of economic zones.

4 Support for investment in development of infrastructure systems of high-tech zones shall be implemented in accordance with the regulations on high-tech zones.

CHAPTER V
Procedures for Direct Investment

SECTION I
Authority to Approve and Issue Investment Certificates

Article 37 Projects for which the Prime Minister of the Government shall approve the investment policy:

1. Investment projects in the following sectors, irrespective of the source of invested capital and scale of investment:

(a) Construction and commercial operation of airports; air transportation;

(b) Construction and commercial operation of national sea ports;

(d) Radio and television broadcasting;

(dd) Commercial operation of casinos;

(e) Production of cigarettes;

(g) Establishment of university training establishments;

(h) Establishment of industrial zones, export processing zones, high-tech zones and economic zones.

2. Investment projects not covered by clause 1 of this article, irrespective of the source of capital, with an invested capital of 1,500 billion VND or more in the following sectors:

(a) Business in electricity; processing of minerals; metallurgy;

(b) Construction of railway, road and internal waterway infrastructure;

3. Projects with foreign invested capital in the following sectors:

(a) Commercial operation of sea transportation;

(b) Construction of networks for and supply of postal and delivery, telecommunications and internet services; construction of wave transmission networks;

(d) Establishment of independent scientific research establishments.

4. In cases where investment projects stipulated in clauses 1, 2 and 3 of this article are included in the master plan approved by the Prime Minister of the Government or by an entity authorized by him and satisfy conditions in accordance with law and international treaties of which Vietnam is a member, the Investment Certificate-issuing body shall issue the Investment Certificate without making a submission to the Prime Minister of the Government for a decision on the investment policy.

5. In cases where investment projects stipulated in clauses 1, 2 and 3 of this article are not included in the master plan approved by the Prime Minister of the Government or by an entity authorized by him or projects not satisfying conditions for opening the market in international treaties of which Vietnam is a member, the Investment Certificate-issuing body shall preside over co-ordination in obtaining opinions from the ministry managing the technical – economic branch, the Ministry of Planning and Investment and other relevant bodies and shall collate the opinions and make a submission to the Prime Minister of the Government to make a decision on the investment policy.

6. In cases where investment projects stipulated in clauses 1, 2 and 3 of this article are in a sector for which there is as yet no master plan, the Investment Certificate-issuing body shall obtain opinions from the ministry managing the technical – economic branch, the Ministry of Planning and Investment and other relevant bodies and shall collate the opinions and make a submission to the Prime Minister of the Government to make a decision on the investment policy.

Article 38 Projects for which provincial people’s committees shall issue Investment Certificates

Provincial people’s committees shall carry out investment registration and issuance of Investment Certificates for the following projects:

1. Investment projects outside industrial zones, export processing zones, high-tech zones and economic zones including investment projects stipulated in article 37 of this Decree for which the Prime Minister of the Government has approved the investment policy.

2. Investment projects for the development of infrastructure in industrial zones, export processing zones and high-tech zones in localities which have not yet established a management committee of such industrial zone, export processing zone or high-tech zone.

Article 39 Projects for which management committees of industrial zones, export processing zones, high-tech zones and economic zones shall issue Investment Certificates Management committees of industrial zones, export processing zones, high-tech zones and economic zones (hereinafter referred to as management committees) shall carry out investment registration and issuance of Investment Certificates for the following projects:

1. Investment projects in industrial zones, export processing zones, high-tech zones and economic zones including investment projects stipulated in article 37 of this Decree for which the Prime Minister of the Government has approved the investment policy.

2. Investment projects for the development of infrastructure in industrial zones, export processing zones and high-tech zones.

Article 40 Bodies receiving investment project files

1. The Department of Planning and Investment shall receive files of the investment projects stipulated in article 38 of this Decree to be implemented within its locality.

2. A management committee shall receive files of the investment projects stipulated in article 39 of this Decree to be implemented within its locality.

3. With respect to investment projects to be implemented in a locality not yet covered by the administrative management of a city or province under central authority or to be implemented within an area of more than one city and province under central authority, the file shall be lodged with the Department of Planning and Investment in the place where the investor has established or proposes to establish its head office, branch or operating office in order to implement such project.

4. Bodies receiving investment project files shall be responsible to provide guidance, to examine the validity of such files and to carry out investment procedures in accordance with this Decree.

Article 41 Contents of Investment Certificates

1. The form of an Investment Certificate shall be provided by the Ministry of Planning and Investment for uniform application throughout the country.

2. An Investment Certificate shall contain the following main items:

(a) Name and address of the investor;

(b) Location in which the investment project will be implemented and land use area requirements;

(d) Total invested capital;

(dd) Duration of implementation of the project;

(e) Schedule for implementation of the investment project;

(g) Confirmation of investment incentives and support (if any).

3. In the case of a foreign investor with an investment project associated with the establishment of an economic organization, the Investment Certificate shall contain the items stipulated in clause 2 of this article and items of a business registration certificate stipulated in the Law on Enterprises. The Investment Certificate shall act concurrently as the business registration certificate.

4. The provisions on the Investment Certificate in clause 3 of this article shall apply to domestic investors in the category stipulated in article 6.1 of this Decree who request that investment procedures be carried out at the same time as procedures for establishment of the economic organization.

SECTION II
Investment Certification

Article 42 Domestic investment projects not required to carry out investment registration

1. Investors shall not be required to carry out procedures for investment registration of domestic investment projects which have invested capital of below fifteen (15) billion VND and are not in sectors in which investment is conditional.

2. Where an investor in the case stipulated in clause 1 of this article has a need for certification of investment incentives or issuance of an Investment Certificate, the investor must carry out the procedures for investment registration in order to be issued with an Investment Certificate as stipulated in article 43 of this Decree.

Article 43 Investment registration applicable to domestic investment projects

1. Domestic investors must carry out procedures for investment registration in the case of domestic investment projects which have invested capital of between fifteen (15) billion VND and less than three hundred (300) billion VND in the following cases:

(a) Projects not in the sectors in which investment is conditional as stipulated in article 29 of the Law on Investment;

(b) Projects not covered by clause 1 of article 37 of this Decree.

2. The investor shall carry out investment registration with the body receiving investment project files as stipulated in article 40 of this Decree.

3. The body receiving the investment project file shall provide a receipt immediately after it receives the written investment registration request.

4. Where an investor requests issuance of an Investment Certificate or certification of investment incentives, the Investment Certificate-issuing body shall rely on the contents of the written investment registration request to issue an Investment Certificate within a time-limit of fifteen (15) days from the date of receipt of a valid written investment registration request.

5. Within a time-limit of seven (7) working days from the date of issuance of an Investment Certificate, the Investment Certificate-issuing body shall copy the Investment Certificate and send copies to the Ministry of Planning and Investment, the Ministry of Finance, the Ministry of Trade, the Ministry of Natural Resources and Environment, the State Bank of Vietnam, the ministry managing the branch and other relevant bodies.

Article 44 Investment registration applicable to projects with foreign invested capital The procedures for investment registration of projects with foreign invested capital stipulated in article 46 of the Law on Investment shall be implemented as follows:

1. An investment project file shall comprise:

(a) Investment registration request on the stipulated form;

(b) Business co-operation contract in the case of the investment form of a business cooperation contract;

(c) Report on financial capability of the investor (which the investor shall prepare and for which the investor shall be liable).

2. With respect to investment projects associated with the establishment of economic organizations, in addition to the documents referred to clause 1 of this article, the investor shall also submit:

(a) File for business registration corresponding to each form of an enterprise as stipulated in the law on enterprises and relevant laws;

(b) A joint venture contract in the case of establishment of a joint venture economic organization between a domestic investor and a foreign investor.

3. Within a time-limit of fifteen (15) working days from the date of receipt of a valid file for investment registration and a valid file for business registration, the Investment Certificate-issuing body shall check the validity of the files for investment registration and business registration (with respect to establishment of an economic organization associated with the investment project) and issue an Investment Certificate without requesting any additional documents.

4. Within a time-limit of seven (7) working days from the date of issuance of an Investment Certificate, the Investment Certificate-issuing body shall copy the Investment Certificate and send copies to the Ministry of Planning and Investment, the Ministry of Finance, the Ministry of Trade, the Ministry of Natural Resources and Environment, the State Bank of Vietnam, the ministry managing the branch and other relevant bodies.

Article 45 Evaluation in respect of investment projects which have invested capital of three hundred (300) billion VND or more and are not in sectors in which investment is conditional

1. The file for investment evaluation shall contain the following documents:

(a) Written request for issuance of an Investment Certificate on the stipulated form;

(b) Written certification of the legal status of the investor: an investor being an organization shall submit a copy of the establishment decision or business registration certificate or other equivalent document; and an investor being an individual shall submit a copy of his or her passport or identity card;

(c) Report on financial capability of the investor (which the investor shall prepare and for which the investor shall be liable);

(d) Economic-technical explanatory statement comprising the following main items: objectives, scale, location of investment, invested capital, schedule for implementation of the project, land use requirements, and technological and environmental solutions;

(dd) Business co-operation contract in the case of the investment form of a business cooperation contract.

2. With respect to cases where investment procedures are conducted at the same time as business registration procedures, in addition to the documents referred to clause 1 of this article, the investor shall also submit:

(a) File for business registration corresponding to each form of an economic organization as stipulated in the law on enterprises and relevant laws;

(b) Joint venture contract in the case of establishment of a joint venture economic organization between a domestic investor and a foreign investor.

3. Contents of evaluation:

(a) Conformity with the master plan for technical infrastructure, land use zoning, construction master plan and master plan for use of minerals and other natural resources; With respect to investment projects in a sector for which there is as yet no master plan or which have not yet been included in the above-mentioned master plans, the Investment Certificate-issuing body shall be responsible for collecting opinions from the State administrative bodies responsible for master planning;

(b) Land use requirements: area of land, category of land, schedule for land use;

(c) Schedule for implementation of the project: schedule for implementation of invested capital, schedule for construction and schedule for implementation of objectives of the project;

(d) Environmental solutions: assessment of factors impacting on the environment and solutions for resolution in accordance with the law on the environment.

Article 46 Evaluation of investment projects which have invested capital of below three hundred (300) billion VND and are in sectors in which investment is conditional

1. The file for investment evaluation shall contain the following documents:

(a) The documents stipulated in clauses 1 and 2 of article 44 of this Decree;

(b) Explanatory statement on the ability to satisfy conditions which the investment project must satisfy in the case of projects in sectors in which investment is conditional stipulated in article 29 of the Law on Investment and in Appendix III issued with this Decree.

2. Contents of evaluation:

(a) Evaluation of the ability to satisfy conditions stipulated in the Law on Investment and relevant laws;
Relevant ministries and branches shall be responsible for evaluation of ability to satisfy conditions which the investment project must satisfy in the case of projects in sectors in which investment is conditional stipulated in article 29 of the Law on Investment and in Appendix III issued with this Decree.
In cases where investment conditions are stipulated specifically in the law or in an international treaty of which Vietnam is a member, the Investment Certificate issuing body shall make a decision on the issuance of an Investment Certificate without obtaining opinions from relevant ministries and branches;

(b) With respect to domestic investment projects, if a project satisfies the investment conditions in accordance with law, the Investment Certificate-issuing body shall issue an Investment Certificate in accordance with the procedures for registration of investment stipulated in article 43 of this Decree.

Article 47 Evaluation in respect of investment projects which have invested capital of three hundred (300) billion VND or more and are in sectors in which investment is conditional

1. The file for investment evaluation shall contain the following documents:

(a) File as stipulated in clauses 1 and 2 of article 45 of this Decree;

(b) Explanatory statement on the ability to satisfy conditions to enter the market stipulated as applicable to investment projects in sectors in which investment is conditional stipulated in article 29 of the Law on Investment and in Appendix III issued with this Decree.

2. Contents of evaluation shall be in accordance with articles 45.3 and 46.2 of this Decree.

Article 48 Procedures for evaluation of investment projects which fall under the approval
authority of the Prime Minister of the Government

1. An investor shall submit ten (10) sets of a file, including at least one set of original copies.

2. Within a time-limit of three days, the body receiving the investment project file shall check the validity of the file and forward it to relevant ministries and branches for their evaluation opinion.
Where a project file is invalid, [the body receiving the investment project file] shall notify the investor in writing in order for the latter to prepare amendments of or additions to the file.

3. Within a time-limit of fifteen (15) days from the date of receipt of a project file, bodies from which opinions are sought shall carry out evaluation and provide written opinions and they shall be liable for project issues under their administration.

4. Within a time-limit of twenty five (25) days from the date of receipt of a complete and valid file, the Investment Certificate-issuing body shall prepare an evaluation report and submit same to the Prime Minister of the Government.

5. Within a time-limit of seven (7) days from the date of receipt of an evaluation report for submission to the Prime Minister of the Government from a provincial people’s committee or a management committee, the Government Office shall provide written notice of the opinion of the Prime Minister of the Government about the investment project.

6. Within a time-limit of five days from the date of receipt of approval from the Prime Minister of the Government, the provincial people’s committee or the management committee shall issue an Investment Certificate.

7. When an investment project is not approved, the body receiving the investment project file shall notify the investor in writing, stating clearly the reasons therefore.

8. Within a time-limit of seven working days from the date of issuance of an Investment Certificate, the body receiving the investment project file shall copy the Investment Certificate and send copies to the Ministry of Planning and Investment, the Ministry of Finance, the Ministry of Trade, the Ministry of Natural Resources and Environment, the State Bank of Vietnam, the ministry managing the branch and other relevant bodies.

Article 49 Procedures for evaluation of investment projects subject to evaluation for issuance of an Investment Certificate

1. An investor shall submit eight (8) sets of a file including one set of original copies to the Department of Planning and Investment (in respect of projects for which the provincial people’s committee issues Investment Certificates); or four sets of a file including one set of original copies to the management committee (in respect of projects for which the management committee issues Investment Certificates).

2. Within a time-limit of three working days from the date of receipt of a project file, the body receiving the investment project file shall check the validity of the file and forward it to the relevant departments and branches for their evaluation opinion, and in necessary cases shall seek opinions from relevant ministries and branches.

Where a project file is invalid, the body receiving the investment project file shall notify the investor in writing in order for the latter to prepare amendments of or additions to the file.

3. Within a time-limit of fifteen (15) working days from the date of receipt of a project file, bodies from which opinions are sought shall provide a written evaluation opinion and they shall be liable for project issues under their administration.

4. Within a time-limit of twenty (20) working days from the date of receipt of a complete and valid file, the Department of Planning and Investment shall prepare an evaluation report and submit it to the provincial people’s committee for its decision. Within a time-limit of five working days from the date of receipt of the evaluation report, the provincial people’s committee shall issue an Investment Certificate.
With respect to projects for which the management committee issues Investment Certificates, within a time-limit of twenty (20) working days from the date of receipt of a complete and valid file, the management committee shall collate the opinions of bodies from which opinions were sought in order to make a decision on issuance of an Investment Certificate.

When an investment project is not approved, the body receiving the investment project file shall notify the investor in writing, stating clearly the reasons therefore.

5. Within a time-limit of seven (7) working days from the date of issuance of an Investment Certificate, the body receiving the investment project file shall copy the Investment Certificate and send copies to the Ministry of Planning and Investment, the Ministry of Finance, the Ministry of Trade, the Ministry of Natural Resources and Environment, the State Bank of Vietnam, the ministry managing the branch and other relevant bodies.

Article 50 Authority of ministries managing technical – economic branches for evaluation for issuance of Investment Certificates

1. Ministries managing technical – economic branches shall evaluate satisfaction of investment conditions and compliance with master plans by investment projects in sectors in which investment is conditional stipulated in article 29 of the Law on Investment, Appendix III issued with this Decree and article 82 of the Law on Investment.

2. Based on articles 29 and 82 of the Law on Investment, ministries managing technical – economic branches shall draft investment conditions and submit them to the Government for promulgation; and shall formulate master plans and approve them or submit them to the competent body for approval.
After investment conditions and master plans have been promulgated by the competent body, they must be publicly proclaimed on the mass media and listed at the headquarters of bodies receiving investment project files.

SECTION III
Amendment of Investment Projects

Article 51 Amendment of investment projects

1. When investors amend investment projects relating to the objectives, scale, location, form, capital and duration of implementation of the project, they must carry out procedures to amend the Investment Certificate.

2. The amendment of an investment project shall be carried out in one of the following forms:

(a) Without carrying out procedures for registration of amendment or for evaluation of amendment;

(b) Registration of amendment of the investment project;

3. Investment projects not required to carry out procedures for registration of amendment or for evaluation of amendment shall comprise:

(a) Investment projects not changing their objectives, scale, location, form, capital or duration;

(b) Domestic investment projects which, upon amendment, have an invested capital of below fifteen (15) billion VND and are not in sectors in which investment is conditional;

(c) Domestic investment projects which, upon amendment, have an invested capital of below three hundred (300) billion VND and do not change their objectives [or] location of investment.

Article 52 Registration of amendment and evaluation of amendment of investment projects 1. Registration of amendment of investment projects:

(a) The following projects shall be subject to registration of amendments: projects which after amendment of objectives, scale, location, capital, form [or] duration fall into the following categories: foreign investment projects which, upon amendment, have an invested capital of below three hundred (300) billion VND and are not in sectors in which investment is conditional; domestic investment projects which, upon amendment, are not in sectors in which investment is conditional except for the cases stipulated in article 51.3 of this Decree; domestic investment projects in sectors in which investment is conditional but which, upon amendment, have not changed the objectives and still satisfy the investment conditions stipulated for such project, except for the cases stipulated in article 51.3 of this Decree;

(b) A file for registration of amendment of an investment project shall comprise: request for registration of amendment of the investment project; a copy of the Investment Certificate; the amended or supplemented joint venture contract or business co-operation contract or charter of the enterprise (with respect to projects with foreign invested capital);

(c) Within a time-limit of fifteen (15) working days from the date of receipt of a complete and valid file, the Investment Certificate-issuing body shall issue a new Investment Certificate (if an Investment Certificate has not yet been issued) or shall amend the Investment Certificate.

2. Evaluation of amendment of investment projects:

(a) The following projects shall be subject to evaluation of amendment: projects which after amendment of objectives, scale, location, capital, form [or] duration fall into the following categories: projects with foreign invested capital which after amendment fall into the category of evaluation for issuance of an Investment Certificate; domestic investment projects which after amendment are in sectors in which investment is conditional, except for the cases stipulated in clause 1(a) of this article;

(b) A file for evaluation of amendment of an investment project shall comprise: request for amendment of the investment project; explanation of the amendment; changes compared with the project currently being implemented; report on status of implementation of the project at the time of amendment of the project; copy of the Investment Certificate; and amended or supplemented joint venture contract or business co-operation contract or charter of the enterprise (with respect to projects with foreign invested capital);

(c) The Investment Certificate-issuing body shall evaluate amendments and shall issue a new Investment Certificate (if an Investment Certificate has not yet been issued) or shall amend the Investment Certificate within a time-limit of thirty (30) working days from the date of receipt of a complete and valid file;

(d) In cases where investment projects, upon amendment, fall under the approval authority of the Prime Minister of the Government but are not yet included in the master plan or are in sectors subject to conditions but for which investment conditions have not yet been stipulated by law, the Investment Certificate-issuing body shall obtain evaluation opinions from relevant ministries and branches and make a submission to the Prime Minister of the Government for his decision prior to issuing a new Investment Certificate or amending the Investment Certificate;

(dd) In cases where amended items relate to sectors in which investment is conditional, the Investment Certificate-issuing body shall obtain evaluation opinions from relevant ministries and branches prior to issuing a new Investment Certificate or amending the Investment Certificate.

3. Within a time-limit of seven (7) working days from the date of issuance of an amended Investment Certificate, the Investment Certificate-issuing body shall copy the amended Investment Certificate and send copies to the Ministry of Planning and Investment, the Ministry of Finance, the Ministry of Trade, the Ministry of Natural Resources and Environment, the State Bank of Vietnam, the ministry managing the branch and other relevant bodies.

SECTION IV
Additional Provisions Applicable to Projects with Foreign Invested Capital

Article 53 Relevant items in files for projects with foreign invested capital

Projects with foreign invested capital implemented in the form of a joint venture or business cooperation contract shall, in addition to the documents stipulated in articles 44 to 47 inclusive of this Decree, have a joint venture contract or a business co-operation contract with the items stipulated in articles 54 and 55 respectively of this Decree.

Article 54 Contents of joint venture contract

A joint venture contract must contain the following main items:

1. Names and addresses of the organizations and individuals investing in participation in the joint venture, and of the legal representatives of the joint venture parties; name and address of the joint venture enterprise.

2. Form of enterprise.

3. Sector, line and scope of business.

4. Legal capital, capital contribution portion of each party, method and schedule for charter capital contributions.

5. Project implementation schedule.

6. Duration of operation of the project.

7. Location where the project is to be implemented.

8. Rights and obligations of the joint venture parties.

9. Principles of financial management; [principles] of distribution of profits and dealing with
losses during business.

10. Procedures for amendment and termination of the contract, conditions for assignment, conditions for termination of operation and dissolution of the enterprise.

11. Liability for breach of contract and method of dispute resolution.
Apart from the above items, the joint venture parties shall have the right to agree on other items in the joint venture contract which are not contrary to law.

The joint venture contract must be initialed by the authorized representatives of the joint venture parties on each page and signed by them at the end of the contract. The joint venture contract shall become effective as from the date of issuance of the Investment Certificate.

Article 55 Contents of business co-operation contract

A business co-operation contract must contain the following main items:

1. Names, addresses, and authorized representatives of the business co-operation parties; and the transaction address or address of the location in which the project will be implemented.

2. Objectives and scope of business.

3. Making of the contribution portion by the co-operating parties, distribution of investment and business results, and contract performance schedule.

4. Project implementation schedule.

5. Term of the contract.

6. Rights and obligations of the co-operating parties.

7. Financial principles.

8. Procedures for amendment and termination of the contract and the conditions for assignment.

9. Liability for breach of contract and method of dispute resolution.
Apart from the above items, the co-operating parties shall have the right to agree on other items in the business co-operation contract which are not contrary to law.

A business co-operation contract must be initialed by the authorized representatives of the cooperating parties on each page and signed by them at the end of the contract. A business cooperation contract between a Vietnamese party and a foreign party shall become effective as from the date of issuance of the Investment Certificate.

Article 56 Procedures for direct investment in the form of capital contribution, purchase of shareholding in, merger or acquisition of an enterprise

A foreign investor who contributes capital, purchases shareholding in, merges or acquires an enterprise in Vietnam as stipulated in article 10 of this Decree shall carry out the following procedures:
1. Where the foreign investor purchases shareholding in a Vietnamese enterprise, such enterprise shall carry out business registration procedures in accordance with the law on enterprises.

2. Where the investor purchases shareholding in an enterprise with foreign owned capital operating in Vietnam, it shall carry out procedures for amendment of an investment project in accordance with articles 51 and 52 of this Decree.

3. Where the investor contributes capital in order to make an investment, it shall carry out investment procedures in accordance with the Law on Investment.

4. Where the foreign investor merges or acquires an enterprise operating in Vietnam, it shall conduct investment procedures stipulated in this Decree in order to be issued with an Investment Certificate. A file for the merger or acquisition of an enterprise shall comprise the following contents:

(a) Request for merger or acquisition of an enterprise containing name and address and representative of the foreign investor merging or acquiring the enterprise; and name and address and representative, charter capital and operational sector of the merged or acquired enterprise; summarized information on the merger or acquisition; and any proposals;

(b) Decision of the members’ council or of the company owner or of the general meeting of shareholders on the sale of the enterprise;

(c) Contract for merger or acquisition of the enterprise. The contract must contain the following main items: name and address and head office of the merged or acquired company; procedures and conditions for merger or acquisition of the enterprise; plan for employment of employees; procedures, conditions and period for transfer of assets, capital, shares or bonds of the merged or acquired company; period for implementation of the merger or acquisition; and responsibilities of the parties to the transaction;

(d) Charter of the merged or acquired enterprise;

(dd) Draft charter of the enterprise after permission is granted for the merger or acquisition;

(e) Written certification of the legal status of the foreign investor: an economic organization shall submit a copy of its establishment decision or other equivalent document; and an individual shall submit a copy of his or her passport.

Article 57 Procedures for conversion of investment form of projects with foreign invested
capital

1. An investor with a project which has been issued with an Investment Certificate or which has been issued with an investment license pursuant to the Law on Foreign Investment in Vietnam shall have the right to convert the form of investment to another form of investment in accordance with article 21 of the Law on Investment.

2. An investor which has been issued with an investment license in accordance with the Law on Foreign Investment in Vietnam may convert its form of investment in accordance with separate regulations of the Government on re-registration and conversion to an enterprise with foreign invested capital.

3. Procedures for conversion of the investment form of a project with foreign invested capital shall be carried out as follows:

(a) The conversion of the investment form associated with conversion of the form of enterprise must comply with the provisions of the law on enterprises;

(b) An enterprise with foreign invested capital or parties to a business co-operation contract shall submit a file for conversion of the investment form to the Investment Certificate-issuing body, the file to comprise the following documents: request for conversion of the investment form; decision of the members’ council or of the enterprise owner or of the general meeting of shareholders, or the agreement of the business co-operation parties (in the case of an investment project in the form of a business co-operation contract) on conversion of the investment form; draft charter of the converted enterprise; and business co-operation contract (in the case of an investment project in the form of a business co-operation contract);

(c) The decision of the board of management of the joint venture enterprise or the decision of the investor (in the case of enterprises with one hundred (100) percent foreign owned capital) or the agreement of business co-operation parties (in the case of business co-operation contracts) on conversion of the investment form shall be notified to creditors and employees within a period of fifteen (15) working days from the date of the decision;

(d) The Investment Certificate-issuing body shall amend the Investment Certificate and give notification to the investor within a period of thirty (30) working days from the date of receipt of the complete and valid file stipulated in clause 3(b) of this article.

SECTION V
A Number of Provisions on Procedures for Use of State Owned Capital
for Investment and Business

Article 58 Investment and business using State owned capital

1. Investment projects using the following sources of State owned capital must be approved by the authorized State body before using State owned capital:

(a) Capital from the State Budget;

(b) Investment and development credit of the State;

(d) Investment and development capital of State owned enterprises;

(dd) Investment capital of the State Capital Investment Corporation.

2. After the authorized State body evaluates the project and issues written approval, the investor shall carry out investment procedures in accordance with this Decree to be issued with an Investment Certificate. Written approval of the use of State owned capital for investment is a compulsory document in the investment registration file and investment evaluation file.

Article 59 Bodies evaluating and approving the use of State owned capital for investment

1. The body authorized to issue decisions on use of capital from the State Budget shall evaluate and approve the use of State owned capital for investment with respect to investment projects funded by capital from the State Budget.

2. The Vietnam Development Bank shall evaluate and approve investment projects entitled to State owned credit facilities for investment.

3. The Ministry of Finance shall evaluate and make a decision on State guarantees with respect to investment projects funded by credit facilities and on the list guaranteed by the State.

4. The board of management of an Economic Group, State corporations and other State owned enterprises or the general director or director of an enterprise without a board of management shall organize evaluation and make a decision with respect to the use of investment capital of the State by State owned enterprises for investment.

5. The authority to grant approval for the use of State owned capital for investment by the State Capital Investment Corporation shall be implemented in accordance with a decision of the Prime Minister of the Government.

6. The evaluating body shall be responsible for organizing evaluation and providing written notification to the investor of the decision on approval or non-approval for the use of State owned capital for investment.

Article 60 File for evaluation of the use of State owned capital for investment

A file for evaluation and approval shall comprise:

1. Application for using State owned investment capital from the investor to the body evaluating and approving the use of the particular source of capital as stipulated in article 59 of this Decree.

2. Explanatory statement on the use of State owned capital for investment comprising the following main items:

(a) Name of the project;

(b) Objectives and scale of the project;

(d) Invested capital; source of invested capital; State capital portion invested in the project;

(dd) Explanatory statement on the conformity of the project with the strategy, master plan and plans for socio-economic development approved by the authorized State body; explanatory statement on the appropriateness of the use of invested capital;

(e) Investment efficiency (financial efficiency, socio-economic efficiency);

(g) Explanatory statement on the ability to repay investment capital, ability to repay loans and plan for repayment of loans (if any);

(h) Duration of implementation of the project;

(i) Schedule for implementation of the investment project.

Article 61 Contents of evaluation of investment projects using State owned capital
Contents of evaluation shall comprise:

1. The conformity of the investment project with the strategies, master plans and plans for socio-economic development for each period (of the country or region or territory) approved by the authorized State bodies.

2. Appropriateness of the investment and business funded by State capital; investment objectives, efficiency of the investment; management method appropriate to each source of capital and each type of investment project.

3. Conformity of the project with policies on investment support (if any).

4. Schedule for implementation of the project and duration of implementation of the project.

5. Ability to repay invested capital; ability to repay loans and plan for repayment of loans (if
any).

6. Investment efficiency including financial efficiency and socio-economic efficiency.

CHAPTER VI
Provisions on Commencement of Implementation of
Investment Projects and Organization of Business

Article 62 Commencement of investment projects

The investor shall be responsible for commencing implementation of the project in accordance with the objectives, contents and schedule undertaken and the provisions in the Investment Certificate; and for complying with the provisions of the law on land, on the environment, on labor, on business registration, investment registration and other relevant laws during implementation of the investment project.

Article 63 Commencement of investment projects accompanied with construction When commencing an investment project with construction works, the investor shall comply with the provisions on management of construction as stipulated in the law on construction.

Article 64 Hiring management

1. Investors shall be entitled to hire a management organization or individual to manage the investment and to manage business operations in accordance with such investor’s operational needs.

2. The hiring of a management organization or individual must be carried out pursuant to a management contract between the investor and the management organization or manager.
The rights and obligations of the investor and of the management organization or manager shall be stipulated in a contract.

Management fees shall be as agreed between the parties in the management contract and shall be accounted for as operational expenses of the enterprise.

3. The hiring of an organization or individual to provide management services must conform to the undertakings in international treaties of which Vietnam is a member.

4. The organization or individual providing management services shall pay taxes and perform other financial obligations in accordance with the law on taxation and relevant laws.

Article 65 Assignment of capital

1. An economic organization shall be entitled to assign its capital in the enterprise and perform the procedures for registration of members in the register of members or registration of shareholders in the register of shareholders in accordance with the Law on Enterprises and relevant laws.

Upon the assignment of enterprise capital in an enterprise with foreign owned capital, the enterprise must notify the Investment Certificate-issuing body of such assignment in order to amend the Investment Certificate.

2. Conditions for assignment of capital:

(a) Ensuring the requirements stipulated in the Law on Enterprises, this Decree and relevant laws;

(b) Ensuring the ratio and conditions are consistent with the provisions of international treaties of which Vietnam is a member;

Article 66 Assignment of projects

1. An investor shall be entitled to assign all or part of the project implemented by it to other investors. The conditions for assignment of a project shall be implemented in accordance with article 65 of this Decree.

2. In a case of assignment of a project of an economic organization not accompanied by termination of operation of the assigning economic organization, the assignment of the project shall comply with the conditions and procedures for assignment of capital stipulated in article 65 of this Decree.

3. In a case of assignment of a project of an economic organization accompanied by termination of operation of the assigning economic organization, the assignment of the project shall comply with the conditions and procedures for merger or acquisition of an enterprise stipulated in article 56 of this Decree.

4. In a case of assignment of an investment project accompanied by termination of operation of the organization assigning the project and the assignee establishing an economic organization to continue implementation of the project, the assignment shall be implemented in accordance with the investment procedures of this Decree.

5. The file for assignment of an investment project shall comprise: an application for registration of the assignment of the project; the project assignment contract; a document on the legal status of the assignee; and a report on the operational status of the project.

6. The Investment Certificate-issuing body shall issue a new Investment Certificate (if an Investment Certificate has not yet been issued) or shall amend the Investment Certificate within ten (10) working days from the date of receipt of a complete and valid file.

Article 67 Temporary suspension or extension of implementation schedule of investment projects

1. An investor with a temporary suspension or extension of implementation schedule of the investment project which changes the project implementation schedule as undertaken must notify the State administrative body for investment in writing of the reason for and duration of such temporary suspension or extension of implementation schedule of the project at least fifteen (15) working days prior to the date of such temporary suspension or extension.

2. If the Investment Certificate-issuing body does not agree to the temporary suspension or extension of implementation schedule of the investment project, it shall notify the investor in writing within a time-limit of fifteen (15) working days from the date of receipt of the notice from the investor.
Upon resumption of operation, the investor must give notice in writing to the State administrative body for investment.

Article 68 Termination of operation of investment projects

1. An investment project shall terminate its operation in the cases stipulated in article 65 of the Law on Investment.

2. The Investment Certificate-issuing body shall have the right to make a decision on termination of the operation of a project in the following cases:

(a) The investor fails to commence the investment project within twelve (12) months from the date of issuance of the Investment Certificate or the project schedule is more than twelve (12) months behind the schedule stipulated in the Investment Certificate, except where a temporary suspension or extension is permitted in accordance with article 67 of this Decree;

(b) The operation [of the project] must be terminated pursuant to law as the result of a serious breach of law.

3. In a case of termination of the operation of a project pursuant to the judgment or decision of a court or arbitration body as a result of a serious breach of law, the Investment Certificate-issuing body shall issue a decision terminating the operation on the basis of such decision or judgment of the court or arbitration body.

4. A decision terminating the operation of a project shall be sent to the investor and archived at the Investment Certificate-issuing body.

Based on the decision terminating the operation of a project, the Investment Certificate issuing body shall revoke the Investment Certificate and notify relevant bodies.

Article 69 Liquidation of investment projects

1. If, during the process of investment activities, an investment project is terminated in accordance with the conditions stipulated in clauses 1, 2 or 3 of article 65 of the Law on Investment, the investor shall notify the Investment Certificate-issuing body, conduct procedures for liquidation of the project, and hand in the Investment Certificate.

2. Procedures for liquidation of an investment project shall be as follows:

(a) In the case of liquidation of an investment project not associated with dissolution of the economic organization, liquidation shall be carried out in accordance with the law on liquidation of assets and liquidation of contracts;

(b) In the case of liquidation of a project associated with dissolution of the economic organization, the investor shall carry out procedures for dissolution of the economic organization in accordance with the provisions of the Law on Enterprises and relevant laws.

3. The time-limit for liquidation of the investment project shall not exceed six (6) months from the date of the decision terminating operation. In special cases, the time-limit for liquidation may be extended with approval of the authorized State body but the time-limit shall not exceed twelve (12) months.
After liquidation of an investment project, the investor shall inform the Investment Certificate-issuing body and hand in the issued Investment Certificate.

4. Where the investor in an economic organization is in dispute leading to inability to carry out the liquidation within the time-limit stipulated in clause 3 of this article, the dispute shall be referred to a court or arbitration body for resolution in accordance with law.

5. If, during the process of liquidation of an investment project the economic organization is unable to pay debts, the liquidation shall terminate and [the matter] shall be resolved in accordance with the law on bankruptcy.

Article 70 Bonded warehouses

1. With respect to export processing zones and industrial zones, economic organizations producing goods for export shall be permitted to establish a bonded warehouse in order to serve import and export activities. Goods delivered into a bonded warehouse shall fall into the category not yet subject to import duty.
Permission and conditions for establishment of a bonded warehouse shall be subject to Decree 154-2005-ND-CP of the Government dated 15 December 2005 making detailed provisions on a number of articles of the Law on Customs with respect to customs procedures, customs inspection and control.

2. Goods delivered into a bonded warehouse must not be sold on the Vietnamese market. Where such goods are not prohibited imports or goods temporarily not permitted to be imported and are sold on the Vietnamese market, the investor must conduct customs procedures and discharge financial obligations in accordance with law.

3. Where goods delivered into a bonded warehouse are damaged or reduced in quality and are unable to satisfy production requirements, they must be re-exported or destroyed. The destruction of such goods must be implemented in accordance with the laws on customs, taxation and the environment.

CHAPTER VII
State Administration of Investment

Article 71 Contents, duties and responsibilities of State administration of investment

1. Contents of State administration of investment:

(a) Formulation of strategies, master plans, plans and policies for the development of investment for mobilization and accommodation of resources for investment and development;

(b) Promulgation and popularization of policies and laws concerning investment activities; formulation of technical standards and norms relating to investment activities; supervision of the promulgation of legal instruments concerning investment; collection of, making recommendations on and revocation of legal instruments which are inappropriate [to the real situation] or promulgated not in accordance with the authority [of the State bodies] or having inappropriate content;

(c) Implementation of State administration of international co-operation, and negotiation and signing of international treaties relating to investment activities in accordance with the law on international treaties;

(d) State administration of investment promotion activities; building of an information system serving investment activities;

(dd) Issuance, amendment and revocation of Investment Certificates; uniform State administration of investment registration and issuance of Investment Certificates;

(e) Examination, inspection and supervision of the observance of the law on investment with respect to State administration of investment and activities of investors;

(g) Provision of guidance and support to investors in implementation of investment projects and resolution of problems and requests of investors during investment activities;

(h) Assessment of impact and macro-economic efficiency of investment activities;

(i) Co-ordination between State administrative bodies at all levels in management of investment activities;

(k) Professional training, retraining and intensification of investment management capacity for the State administrative bodies for investment at all levels;

(l) Resolution of complaints and denunciations of organizations and individuals concerning investment activities in accordance with authority. Granting rewards to organizations and individuals with achievements in investment activities, and dealing with breaches of law by organizations and individuals.

2. Powers and responsibilities for State administration of investment:

(a) The Government shall exercise uniform State administration of investment throughout the whole country; direct the formulation and implementation of strategies, master plans and specific plans on the development of investment in branches, sectors and economic zones; promulgate policies and legal instruments on investment; and delegate powers to ministries, branches and localities to undertake State administration of investment;

(b) The Prime Minister of the Government shall direct ministries, branches and localities to comply with the law and policies on investment; approve or delegate power to approve master plans; decide on the policy for investment of projects under his authority; decide on or permit the establishment of industrial zones, export processing zones, high-tech zones and economic zones; and direct resolution of difficulties during administration and management of investment activities beyond the authority of ministries, branches and localities;

(c) The Prime Minister of the Government, ministries, branches and provincial people’s committees and management committees of industrial zones, export processing zones, high-tech zones and economic zones shall schedule talks with the community of enterprises and investors;

(d) Ministries, branches, provincial people’s committees and management committees shall be responsible for providing guidelines on investment in sectors and localities, ensuring that the investment procedures are simple, transparent and comply with time-limits;

(dd) Ministries, ministerial equivalent bodies and provincial people’s committees shall not be permitted to issue regulations specifying sectors in which investment is prohibited and sectors in which investment is conditional, or specifying investment incentives which are inconsistent with law.

Article 72 Powers and responsibilities of the Ministry of Planning and Investment

1. Presiding over and co-ordination with ministries, branches and provincial people’s committees in formulation and review of legal instruments and policies on investment; guiding, disseminating, monitoring and inspecting implementation of legal instruments on investment; and promulgating sample forms for investment procedures for application nationwide.

2. Organizing and co-ordinating with ministries, branches and local authorities in formulation and submission to the Government of master plans and plans for investment development, and an overall master plan for development of industrial zones, export processing zones and economic zones.

3. Presiding over and co-ordinating with ministries, branches and provincial people’s committees in preparation of and submission to the Prime Minister of the Government for approval lists of national projects attracting investment capital; advising on addition to the master plan in respect of investment projects which fall under the approval authority of the Prime Minister of the Government and which are currently not on such master plan; providing its opinion to the Investment Certificate-issuing body on the necessity for an investment project in a sector for which there is as yet no master plan where the project falls under the approval authority of the Prime Minister of the Government, for submission to the Prime Minister of the Government for approval.

4. Examining important national investment projects and other investment projects pursuant to decisions of the Prime Minister of the Government.

5. Carrying out State administration of investment promotion; preparing programs and plans on promotion and encouragement of investment and organizing their implementation; coordinating with ministries, branches and provincial people’s committees in the organization of investment promotion activities; establishing offshore representative organizations on investment promotion; managing the National Investment Promotion Fund.

6. Presiding over and co-ordinating with ministries and branches in negotiating international treaties relating to investment activities and submitting them to the Government for accession; implementing international co-operation on investment.

7. Organizing professional training and intensification of investment management capacity for the system of State administration of investment at all levels.

8. Co-ordinating with the General Department of Statistics in organizing activities regarding statistics on investment in accordance with the law on statistics; organizing and building a national information system serving investment activities.

9. Co-ordinating with ministries, branches and localities in dealing with matters arising from the formation, commencement and implementation of investment projects.

10. Assessing the macro-economic efficiency of investment activities.

11. Checking and inspecting investment activities in accordance with its authority; building a program and plans for inter-ministerial checks and supervision of investment activities; checking the issuance, amendment and revocation of Investment Certificates by Investment Certificate-issuing bodies pursuant to the Law on Investment and this Decree; inspecting and supervising compliance with approved master plans during the process of investment.

12. Collating the status of investment activities for report to the Prime Minister of the Government on an annual and semi-annual basis.

Article 73 Powers and responsibilities of the Ministry of Finance

1. Presiding over co-ordination with ministries and branches in formulation of laws and policies on investment support and investment incentives; providing guidelines on order and procedures for entitlement to investment support within its authority.

2. Issuing operational permission for projects in sectors which fall under its authority; examining, inspecting and supervising activities of projects which have been issued with permission.

3. Evaluating and giving its opinion in writing on issues relating to financing or Government guarantees in respect of investment projects which fall under the approval authority of the Prime Minister of the Government and projects in sectors in which investment is conditional.

4. Carrying out examination, inspection and supervision of the implementation of the financial and accounting regimes, tax and customs regulations regarding investment activities.

5. Presiding over and co-ordinating with relevant ministries, branches and provincial people’s committees to deal with difficulties and problems of investors in respect of taxes, charges and fees, customs formalities, management of finance and other financial activities.

Article 74 Powers and responsibilities of the Ministry of Trade for State administration of investment

1. Presiding over and co-ordinating with ministries and branches in formulation of laws and policies on trade relating to investment activities.

2. Issuing operational permission for projects in sectors which fall under its authority; examining, inspecting and supervising activities of projects which have been issued with permission.

3. Evaluating and giving its opinion in writing on issues relating to trade activities of investment projects which fall under the approval authority of the Prime Minister of the Government and projects in sectors in which investment is conditional; announcing conditions [and] undertakings concerning investment in international treaties of which Vietnam is a member.

4. Carrying out examination, inspection and supervision of trade activities by investment projects.

5. Presiding over and co-ordinating with relevant ministries, branches and provincial people’s committees to deal with difficulties and problems relating to trade activities of investment projects.

Article 75 Powers and responsibilities of the Ministry of Natural Resources and Environment for State administration of investment

1. Presiding over and co-ordinating with relevant ministries and branches in formulation of laws and policies and providing guidelines for implementation of the regulations on land management, site clearance and compensation, management of natural resources and of the environment relating to investment activities.

2. Evaluating and giving its opinions in writing on issues relating to land, site clearance and compensation, management of natural resources and of the environment of investment projects which fall under the approval authority of the Prime Minister of the Government and projects in sectors in which investment is conditional.

3. Carrying out examination, inspection and supervision of the implementation of regimes and policies relating to land, site clearance and compensation, management of natural resources and of the environment by investment projects.

4. Presiding over and co-ordinating with relevant ministries, branches and provincial people’s committees to deal with difficulties and problems of investors in the fields of land management, site clearance and compensation, mining and use of natural resources, and protection of the environment.

Article 76 Powers and responsibilities of the Ministry of Science and Technology for State administration of investment

1. Presiding over and co-ordinating with ministries and branches in formulation of laws and policies and providing guidelines for implementation of regulations on science and technology relating to investment activities; submitting to the Prime Minister of the Government an overall master plan for development of high-tech zones.

2. Giving its opinion in writing on issues relating to science and technology of investment projects which fall under the approval authority of the Prime Minister of the Government and projects in sectors in which investment is conditional.

3. Carrying out examination, inspection and supervision of the implementation of regimes and policies relating to science and technology.

Article 77 Powers and responsibilities of the Ministry of Construction for State administration of investment

1. Presiding over and co-ordinating with ministries and branches in formulation of laws and policies and providing guidelines for implementation of regulations on construction.

2. Giving its opinion in writing on issues relating to construction of investment projects which fall under the approval authority of the Prime Minister of the Government and projects in sectors in which investment is conditional.

3. Carrying out examination, inspection and supervision of the implementation of regimes, policies, standards and norms relating to construction.

Article 78 Powers and responsibilities of the State Bank of Vietnam for State administration of investment

1. Presiding over and co-ordinating with ministries and branches in formulation of laws and policies and providing guidelines for implementation of regulations on credit and foreign exchange control relating to investment activities.

2. Issuing operational permission for projects in sectors which fall under its authority; examining, inspecting and supervising activities of projects which have been issued with permission.

3. Evaluating and giving its opinion in writing on issues relating to credit and foreign exchange control of investment projects which fall under the approval authority of the Prime Minister of the Government and projects in sectors in which investment is conditional.

4. Carrying out examination, inspection and supervision of the implementation of regimes and policies relating to credit and foreign exchange control.

5. Presiding over and co-ordinating with relevant ministries, branches and provincial people’s committees to deal with difficulties and problems of investors in the fields of credit and foreign exchange control of investment projects.

Article 79 Powers and responsibilities of ministries managing technological – economical branches for State administration of investment Ministries and ministerial equivalent bodies shall, within the scope of their respective duties and powers, be responsible for exercising State administration of investment within the sectors delegated to them, specifically as follows:

1. Co-ordinating with the Ministry of Planning and Investment and relevant ministries and branches in the formulation of laws and policies relating to investment activities.

2. Presiding over co-ordination with relevant ministries and branches in formulation and promulgation of laws, policies, standards and technical regulations and providing guidelines for their implementation.

3. Submitting conditions for investment in sectors in which investment is conditional in technological – economical branches to the Government for promulgation.

4. Preparing master plans, specific plans and lists of projects calling for capital within branches; arranging for specialized mobilization and promotion of investment.

5. Publicly proclaiming the master plan, specific plans, technical criteria, investment conditions and list of projects calling for capital within the branch.

6. Evaluating and giving their opinion in writing on the ability to satisfy conditions which projects must satisfy with respect to projects falling under the approval authority of the Prime Minister of the Government and projects in sectors in which investment is conditional.

7. Carrying out specialized examination, inspection and supervision of the satisfaction of conditions for investment and State administration in respect of investment projects which fall under their authority.

8. Presiding over co-ordination with relevant ministries, branches and provincial people’s committees to deal with difficulties and problems of investment projects in the fields which fall under their specialized administration.

Article 80 Powers and responsibilities of provincial people’s committees for State administration of investment

1. On the basis of the master plan for socio-economic development, to co-ordinate with relevant ministries and branches in preparation and promulgation of lists of projects calling for investment within their localities; organization of mobilization and promotion of investment.

2. Presiding over the organization of investment registration, evaluation and issuance of Investment Certificates, and amendment and revocation of Investment Certificates; making decisions on termination of operation of investment projects prior to expiry of duration applicable to investment projects under their authority.

3. Performing the responsibility for State administration of investment projects outside industrial zones, export processing zones, high-tech zones or economic zones in respect of the following contents:

(a) Monitoring, supervising and checking implementation of objectives provided for in Investment Certificates, schedule of capital contribution and commencement of investment projects; supervising and checking performance of financial obligations, labor relations and wages, protection of legitimate interests of employees and of employers, operation of socio-political organizations and protection of the ecological environment; presiding over co-ordination with or participating with ministries and branches in inspections of investment projects within the locality;

(b) Organizing implementation of site clearance; granting certificates of land use rights and supervising land use;

(c) Dealing with difficulties and problems of investors; making proposals to the Prime Minister of the Government or relevant ministries or branches to deal with matters beyond their authority;

(d) Assessing the efficiency of investment activities within the locality.

4. Directing formulation of detailed master plans for construction of industrial zones and export processing zones and approving such detailed master plans in accordance with the law on construction.

5. Presiding over and co-ordinating with management committees in preparation of an overall report on investment activities within their localities and submitting it to the Ministry of Planning and Investment on a quarterly, semi-annual and annual basis.

Article 81 Powers and responsibilities of management committees of industrial zones, export processing zones, high-tech zones and economic zones for State administration of investment 1. Contributing their opinion together with ministries, branches and localities in formulation of legal instruments, policies and master plans concerning investment activities, and concerning development of their industrial zone, export processing zone, high-tech zone or economic zone.

2. Carrying out investment registration, evaluation and issuance, and amendment and revocation of Investment Certificates in respect of investment projects under their authority.

3. Examining, inspecting and supervising the realization of objectives provided for in Investment Certificates, the schedule of capital contribution and commencement of investment projects; examining and inspecting compliance with the law on labor and wages, protection of legitimate interests of employees and of employers, operation of socio-political organizations and protection of the ecological environment in respect of projects in their industrial zones, export processing zones, high-tech zones or economic zones.

4. Dealing with difficulties and problems of investors in industrial zones, export processing zones, high-tech zones and economic zones; and making proposals to the Prime Minister of the Government, relevant ministries and branches or provincial people’s committees to deal with matters beyond their authority.

5 Evaluation of investment efficiency in industrial zones, export processing zones, high-tech zones and economic zones.

6. Submitting reports on investment activities in industrial zones, export processing zones, high-tech zones and economic zones on a quarterly, semi-annual and annual basis to the provincial people’s committee and to the Ministry of Planning and Investment.

Article 82 Organization of the apparatus of management committees

1. The management committee means the body in charge of management of an industrial zone, export processing zone, high-tech zone or economic zone within the locality of a province or city under central authority. The management committee of an industrial zone, export processing zone, high-tech zone or economic zone shall be established by a decision of the Prime Minister of the Government upon the proposal of the chairman of the provincial people’s committee and the Minister of Internal Affairs, and shall be subject to direction and management in respect of its organization, permanent staff, working plan and operational budget by the provincial people’s committee (unless the Prime Minister of the Government provides otherwise).

2. Specialized commercial, financial, customs and other necessary bodies may have a representative in an industrial zone, export processing zone, high-tech zone and economic zone in order to resolve work relating to the sectors they manage.

3. The specific functions, duties, powers, organizational structure and regulations for operation of management committees shall be stipulated by the Prime Minister of the Government.

Article 83 State administration of investment promotional activities

1. Investment promotional activities shall comprise:

(a) Formulating strategies, specific plans and policies in order to attract domestic and foreign investment capital, and creating conditions for mobilization of investment capital from all economic sectors;

(b) Disseminating, broadcasting, introducing and providing information on the investment environment, investment potential and opportunities;

(c) Establishing investment promotional agencies inside and outside Vietnam in order to mobilize, support and guide investors to understand policies and provisions of the law on investment, and to select industries and localities for implementation of investment projects;

(d) Preparing lists of national projects attracting investment and lists of projects attracting investment capital of branches and localities in accordance with the master plan and strategies for socio-economic development in each period.

2. Based on the objectives and strategies for attracting investment, State administrative bodies for investment shall prepare specific plans for investment promotion and shall submit them to the Ministry of Planning and Investment to co-ordinate performance thereof.

3. Funds for investment promotional activities by State bodies shall be granted from the State Budget and managed uniformly in accordance with guidelines of the Ministry of Finance.
Annually, ministries, ministerial equivalent bodies, Government bodies and provincial people’s committees shall formulate specifics plans for investment promotion and estimated expenses for annual investment promotional activities.

The Ministry of Finance shall co-ordinate with the Ministry of Planning and Investment in guiding the formulation of expenses for investment promotional activities and management of finance concerning investment promotional activities.

Article 84 Inspectorate for investment activities and dealing with breaches in relation to investment

1. The scope of the Investment Inspectorate and the organization and operation of the Investment Inspectorate shall be subject to the law on inspection and shall apply to activities of State administration of investment and investment projects.

2. Breaches of the law on investment and dealing with such breaches shall be subject to law.

Article 85 Dispute resolution

Disputes relating to investment activities shall be resolved in accordance with article 12 of the Law on Investment.

CHAPTER VIII
Implementing Provisions

Article 86 Application of the law to projects carrying out investment prior to the date of effectiveness of the Law on Investment

1. Domestic investment projects implemented prior to the date of effectiveness of the Law on Investment shall not be required to carry out procedures for investment registration or evaluation; where an investor has a requirement for issuance of an Investment Certificate, the investor shall conduct registration procedures in accordance with this Decree.

2. Foreign invested projects issued with an investment license prior to the date of effectiveness of the Law on Investment shall be implemented in accordance with article 88 of the Law on Investment, article 170 of the Law on Enterprises and regulations of the Government on re-registration and conversion by enterprises with foreign invested capital.

Article 87 Application [of the law on] investment with respect to foreign investors establishing private enterprises; investing in education and training, heath care and other sectors affecting the public
Pursuant to the principles of the Law on Investment and this Decree, the Prime Minister of the Government shall provide regulations on investment to establish private enterprises by foreign investors; and regulations on depository and customers’ insurance with respect to investment in education and training, heath care and other sectors affecting the public.

Article 88 Implementing provisions

1. This Decree shall be of full force and effect after fifteen (15) days from the date of its publication in the Official Gazette.

2. This Decree hereby repeals the following:

(a) Decree 24-2000-ND-CP dated 31 July 2000 providing detailed regulations on implementation of the Law on Foreign Investment in Vietnam; and Decree 27- 2003-ND-CP dated 19 March 2003 on amendment of and addition to Decree 24- 2000-ND-CP dated 31 July 2000;

(b) Decree 51-1999-ND-CP (amended) dated 8 July 1999 providing detailed regulations on implementation of the Law on Promotion of Domestic Investment; and Decree 35-2002-ND-CP dated 29 March 2002 on amendment of and addition to Lists A, B and C issued with Decree 51-1999-ND-CP (amended) dated 8 July 1999;

(c) The lists of sectors and geographical areas entitled to investment incentives issued with Decree 164-2003-ND-CP dated 22 December 2003 providing detailed regulations on implementation of the Law on Corporate Income Tax; and Decree 152-2004-ND-CP dated 6 August 2004 on amendment of and addition to Decree 164-2003-ND-CP dated 22 December 2003;

(d) The lists of sectors and geographical areas entitled to investment incentives issued with Decree 149-2005-ND-CP dated 6 December 2005 providing detailed regulations on implementation of the Law on Export and Income Duties; (dd) Other provisions on investment which are inconsistent with this Decree.

3. Ministers, heads of ministerial equivalent bodies, heads of Government bodies, and chairmen of people’s committees of provinces and cities under central authority shall be responsible for providing guidelines for implementation of this Decree.

On behalf of the Government

Prime Minister

NGUYEN TAN DUNG

APPENDIX I
LIST OF INVESTMENT INCENTIVE SECTORS
(Issued with Decree 108-2006-ND-CP of the Government dated 22 September 2006)

A. LIST OF SECTORS ENTITLED TO SPECIAL INVESTMENT INCENTIVES

I. Manufacture of new materials and production of new energy; manufacture of products of high-technology, of bio-technology and of information technology; mechanical manufacturing;

01. Manufacture of composite materials, light construction materials, precious and rare materials;

02. Production of high-quality steel, alloys, special metal, sponge iron and steel billet.

03. Investment for construction of establishments using solar energy, wind energy, biogas, geothermic and tidal energy.

04. Production of medical equipment for analytical and extractive technology in the medical sector; orthopedic equipment, specialized vehicles and equipment for the disabled.

05. Application of advanced technology, bio-technology for production of medicine for treating humans with international GMP standard; production of antibiotic materials.

06. Production of computers, telecommunication and communication and internet equipment and key information technology products.

07. Production of semi-conductors and electronic components with advanced technology; production of software products, items of digital information; provision of services on software, research on technology information and training on human resources on technology information.

08. Investment for production of and manufacture of precision mechanical engineering equipment; equipment and machine for examination and control of industry manufacturing safety; industrial robots.

II. Breeding, rearing, growing and processing agricultural, forestry and aquaculture products; production of salt; creation of new plant and animal varieties

09. A forestation, taking care of forests.

10. Breeding, rearing and growing agricultural, forestry and aquaculture products on uncultivated land, unexploited waters.

11. Fishery in offshore waters.

12. Production of strains, propagation and hybridization of new seeding plants and animals with high economic efficiency.

13. Production, mining and refining of salt.

III. Use of high technology and advanced techniques; protection of the ecological environment; research, development and creation of high-technology

14. Application of high technology or new technology which has not yet been used in Vietnam; application of bio-technology.

15. Treatment of pollution and protection of environment; production of equipment for pollution treatment and equipment for observation and analysis of the environment.

16. Collection and treatment of waste water, gaseous waste and solid waste; recycling or reuse of waste.

17. Research, development and creation of high-technology.

IV. Labour intensive industries

18. Projects for which 5,000 or more employees are employed on a regular basis.

V. Construction and development of infrastructure facilities and important projects

19. Investment in construction and commercial operation of infrastructure of industrial zones, export-processing zones, hi-tech zones and economic zones or important projects falling within the decision-making authority of the Prime Minister of the Government.

VI. Development of education, training, health care, sports and physical education

20. Investment in construction of facilities for treatment of tobacco or drug addiction.

21. Investment in establishment of facilities for epidemic control.

22. Investment in establishment of geriatric centers or centers for rescue and care of the disabled and orphans.

23 Investment in construction of training centers for improvement of and achievement in sports, training for the disabled; construction of sport facilities with apparatus and facilities satisfying requirements for organization of international tournaments.

VII. Other manufacturing and service sectors

24. Investment in research and development (R & D) accounting for twenty five per cent (25%) or more of the revenue.

25. Salvage operations at sea.

26. Investment in construction of apartment buildings for workers working in industrial zones, processing zones, hi-tech zones and economic zones; investment in construction of dormitories for students and construction of residential houses for people entitled to preferential social treatment.

B. LIST OF INVESTMENT INCENTIVE SECTORS

I. Manufacture of new materials and production of new energy; manufacture of products of high-technology, of bio-technology or of information technology; mechanical manufacturing

01. Production of soundproof, electricity insulated or high heat-insulated materials; synthetic materials used as a replacement for wood; fire-proof materials; construction plastics; fibreglass; special-use cement.

02. Production of non-ferrous metals and refinement of steel.

03. Production of moulds and prototypes for metal and non-metal products.

04. Investment in new construction of power plants, power distribution and transmission.

05. Production of medical supplies and equipment, construction of warehouses for protection of pharmaceutical products, reserves of medicine for humans for use in case of storms, floods, natural disasters, and dangerous epidemics.

06. Production of testing equipment for toxic substances in foodstuffs.

07. Development of the petro-chemical industry.

08. Production of coke coal and active coal.

09. Production of vegetation protection medicines, pesticides, prevention and treatment medicines for animals and aquatic creatures; veterinary medicines.

10. Materials for production of medicines or medicines for prevention or treatment of social diseases; vaccines; biological products; medicines produced from pharmaceutical materials; eastern medicines.

11. Investment in construction of facilities for biological experiment, evaluation of the usability of medicines; pharmaceutical establishments satisfying GMP standards in producing, preserving, testing, and carrying out clinical experimentation of medicines, planting, rearing or harvesting and processing pharmaceutical materials.

12. Development of sources of pharmaceutical materials and production of medicines from pharmaceutical materials; projects for research or substantiation of scientific bases for prescriptions for eastern medicines and formulation of standards for testing of prescriptions for eastern medicines; survey and statistics of types of pharmaceutical materials used for production of medicines; collection, inheritance and application of prescriptions for eastern medicines, finding, exploitation and use of new pharmaceutical materials.

13. Production of electronic products.

14. Production of machines, equipment and component packs for the following sectors: oil and gas exploitation, mining and energy; production of large-size lifting equipment; production of machine tools for metal processing and metallurgy equipment.

15. Investment in production of high and medium voltage electric devices or generators with a large capacity.

16. Investment in production of diesel engines; investment in production and repair or building of ships; equipment and parts for transportation ships and fishing ships; production of dynamic and hydraulic machinery, parts and compressing machines.

17. Production of equipment, vehicles and machinery for construction; technical equipment for transportation; locomotives and railway compartments;

18. Investment in production of machine tools, machinery, equipment and components for agricultural and forestry production; machinery for food production; irrigation equipment.

19. Investment in production of equipment, machinery for textiles, garments and leather.

II. Breeding, rearing, growing and processing agricultural, forestry and aquaculture products; production of salt; creation of new plant and animal varieties

20. Growing of plants for pharmaceutical purposes.

21. Investment in post harvest preservation of agricultural products, preservation of agricultural, aquaculture products and foodstuffs.

22. Production of bottled or packaged drinks from fruit.

23. Production and refining of feed for cattle, poultry and aquatic creatures.

24. Technical services for planting industrial and forestry trees, husbandry, fishery, protection of plants and animals.

25. Production, multiplication or cross-breeding for new varieties of plants or animals.

III. Use of high technology and advanced techniques; protection of the ecological environment; research, development and creation of high-technology

26. Production of equipment for responding and dealing with oil spills.

27. Production of equipment for waste treatment.

28. Investment in construction of technical facilities and works: laboratories and experimental stations to apply new technology in production; investment in establishment of research institutes.

IV. Labour intensive industries

29. Projects regularly employing five hundred (500) to five thousand (5,000) employees.

V. Construction and development of infrastructure facilities

30. Construction of infrastructure serving production and business of co-operatives and life of communities in rural areas.

31. Investment in and commercial operation of infrastructure and investment in production in industrial complexes, industrial locations, complexes of rural trade villages.

32. Construction of water plants and water supply systems for civil and industrial use; investment in construction of water drainage systems.

33. Construction and upgrading of bridges, roads, terminals, airports, seaports, railway stations, bus stations and parking areas; establishment of additional railway routes.

34. Construction of technical infrastructures of concentrated population areas in the regions in Appendix II issued with this Decree.

VI. Development of education, training, health care, sports, physical education and national culture

35. Investment in construction of infrastructure for education and training establishments; investment in construction of schools, semi-public or private educational establishments at the levels of pre-school education; general education, vocational high-school education and university education.

36. Establishment of private or people-funded hospitals.

37. Construction: physical exercise or sport centers, training facilities and sports and physical exercise clubs; establishments for production, manufacture and repair of equipment, supplies and apparatus for sports training and physical exercise.

38. Establishment of national cultural houses; national dance, music and song groups; theatres, film studios, cinemas; establishments for production, manufacture and repair of national musical instruments; maintenance and preservation of museums, cultural houses and schools of culture and arts.

39. Investment in construction of national tourism sites, ecological tourism sites and cultural park complexes including activities of sports, entertainment and recreation.

VII. Development of traditional professions

40. Building up and development of traditional trades and occupations for production of art and handicraft goods, processing of agriculture products and foodstuffs and cultural products.

VIII. Other manufacturing and service sectors

41. Provision of Internet connection, access and application services and points for accessing public telephones in areas in Appendix II issued with this Decree.

42. Development of public transportation including: transportation by ships, aircraft; railway transportation; road transportation of passengers by buses with 24 seats or more; transportation of passengers by model and high-speed vehicles by inland waterway; transportation by containers.

43. Investment in relocation of production establishments to non-urban areas.

44. Investment in construction of class-1 markets and exhibition centres.

45. Production of toys for children.

46. Activities in mobilizing capital and lending capital of people’s credit funds.

47. Consultancy in respect of legal matters, intellectual property and technology transfer.

48. Production of various types of materials for pesticides.

49. Production of basic chemicals, purified chemicals, specialized chemicals and dyes.

50. Production of materials for cleansing chemicals and additives for the chemical industry.

51. Production of paper, cartons, artificial planks from domestic agricultural and forestry materials; production of pulp.

52. Making textile fabric and completing textile products; production of silk and fibers of all types; tanning and processing of leather.

53. Investment projects for production in industrial zones established under a decision of the Prime Minister of the Government.

APPENDIX II
LIST OF INVESTMENT INCENTIVES GEOGRAPHICAL AREAS
(Issued with Decree 108/2006/ND-CP of the Government dated 22 September 2006)

No.	Province/City	*Areas with specially difficult socioeconomic* *conditions*	*Areas with difficult socio-economic* *conditions*
1	Bac Kan	All districts and towns
2	Cao Bang	All districts and towns
3	Ha Giang	All districts and towns
4	Lai Chau	All districts and towns
5	Son La	All districts and towns
6	Dien Bien	All districts and Dien Bien City
7	Lao Cai	All districts	Lao Cai City
8	Tuyen Quang	Na Hang and Chiem Hoa Districts	Ham Yen, Son Duong and Yen Son Districts and Tuyen Quang Town
9	Bac Giang	Son Dong District	Luc Ngan, Luc Nam , Yen The and Hiep Hoa Districts
10	Hoa Binh	Da Bac and Mai Chau Districts	Kim Boi, Ky Son, Luong Son, Lac Thuy, Tan Lac, Cao Phong, Lac Son and Yen Thuy Districts
11	Lang Son	Binh Gia, Dinh Lap, Cao Loc, Loc Binh, Trang Dinh, Van Lang and Van Quan Districts	Bac Son, Chi Lang and Huu Lung Districts
12	Phu Tho	Thanh Son and Yen Lap Districts	Doan Hung, Ha Hoa, Phu Ninh, Song Thao, Thanh Ba, Tam Nong and Thanh Thuy Districts
13	Thai Nguyen	Vo Nhai anh Dinh Hoa Districts	Dai Tu, Pho Yen, Phu Luong, Phu Binh and Dong Hy Districts
14	Yen Bai	Luc Yen, Mu Cang Chai and Tram Tau Districts	Tran Yen, Van Chan, Van Yen and Yen Binh Districts and Nghia Lo Town
15	Quang Ninh	Ba Che and Binh Lieu Districts, Co To Island District, islands and offshore islands under provincial authority	Van Don District
16	Hai Phong	Bach Long Vy and Cat Hai Island Districts
17	Ha Nam		Ly Nhan and Thanh Liem Districts
18	Nam Dinh		Giao Thuy, Xuan Truong, Hai Hau and Nghia Hung Districts
19	Thai Binh		Thai Thuy and Tien Hai Districts
20	Ninh Binh		Nho Quan, Gia Vien, Kim Son, Tam Diep and Yen Mo Districts
21	Thanh Hoa	Muong Lat, Quan Hoa, Ba Thuoc, Lang Chanh, Thuong Xuan, Cam Thuy, Ngoc Lac, Nhu Thanh and Nhu Xuan Districts	Thach Thanh and Nong Cong Districts
22	Nghe An	Ky Son, Tuong Duong, Con Cuong, Que Phong, Quy Hop, Quy Chau and Anh Son Districts	Tan Ky, Nghia Dan and Thanh Chuong Districts
23	Ha Tinh	Huong Khe, Huong Son and Vu Quang Districts	Duc Tho, Ky Anh, Nghi Xuan, Thach Ha, Cam Xuyen and Can Loc Districts
24	. Quang Binh	24Tuyen Hoa, Minh Hoa and Bo Trach Districts	Other districts
25	Quang Tri	Huong Hoa and Dac Krong Districts	Other districts
26	Thua Thien Hue	A Luoi and Nam Dong Districts	Phong Dien, Quang Dien, Huong Tra, Phu Loc and Phu Vang Districts
27	Da Nang	Hoang Sa island District
28	Quang Nam	Dong Giang, Tay Giang , Nam Giang, Phuoc Son, Bac Tra My, Nam Tra My, Hiep Duc, Tien Phuoc and Nui Thanh Districts and Cu Lao Cham Island	Dai Loc and Duy Xuyen Districts
29	Quang Ngai	Ba To, Tra Bong, Son Tay, Son Ha, Minh Long, Binh Son and Tay Tra Districts and Ly Son island District	Nghia Hanh and Son Tinh Districts
30	Binh Dinh	An Lao, Vinh Thanh, Van Canh, Phu Cat and Tay Son Districts	Hoai An and Phu My Districts
31	Phu Yen	Song Hinh, Dong Xuan, Son Hoa and Phu Hoa Districts	Song Cau, Tuy Hoa and Tuy An Districts
32	Khanh Hoa	Khanh Vinh and Khanh Son Districts, Truong Sa island District and islands under provincial authority	Van Ninh, Dien Khanh and Ninh Hoa Districts and Cam Ranh Town
33	Ninh Thuan	All districts	Bac Binh, Tuy Phong, Duc Linh, Tanh Linh, Ham Thuan Bac and Ham Thuan Nam Districts
34	Binh Thuan	Phu Quy island District
35	Dak Lak	All districts
36	Gia Lai	All districts and towns
37	Kon Tum	All districts and towns
38	Dak Nong	All districts
39	Lam Dong	All districts	Bao Loc Town
40	Ba Ria – Vung Tau	Con Dao island District	Tan Thanh District
41	Tay Ninh	Tan Bien, Tan Chau, Chau Thanh and Ben Cau Districts	Other districts
42	Binh Phuoc	Loc Ninh, Bu Dang and Bu Dop Districts	Dong Phu, Binh Long, Phuoc Long and Chon Thanh Districts
43	Long An		Duc Hue, Moc Hoa, Tan Thanh, Duc Hoa, Vinh Hung and Tan Hung Districts
44	Tien Giang	Tan Phuoc District	Go Cong Dong and Go Cong Tay Districts
45	Ben Tre	Thanh Phu, Ba Chi and Binh Dai Districts	Other districts
46	Tra Vinh	Chau Thanh and Tra Cu Districts	Cau Ngang, Cau Ke and Tieu Can Districts
47	Dong Thap	Hong Ngu, Tan Hong, Tam Nong and Thap Muoi Districts	Other districts
48	Vinh Long		Tra On district
49	Soc Trang	All districts	Soc Trang Town
50	Hau Giang	All districts	Vi Thanh Town
51	An Giang	An Phu, Tri Ton, Thoai Son, Tan Chau and Tinh Bien Districts	Other districts
52	Bac Lieu	All districts	Bac Lieu Town
53	Ca Mau	. All districts	Ca Mau City
54	Kien Giang	All districts, islands and offshore islands under provincial authority	Ha Tien and Rach Gia Towns
55	Other Localities	Hi-tech zones and economic zones entitled to preference under establishment decisions of the Prime Minister of the Government	Industrial zones established under the decisions of the Prime Minister of the Government

APPENDIX III
LIST OF SECTORS IN WHICH INVESTMENT IS CONDITIONAL
APPLICABLE TO FOREIGN INVESTORS
(Issued with Decree 108 -2006-ND-CP of the Government dated 22 September 2006)

01. Broadcasting and television.

02. Production, publishing and distribution of cultural products.

03. Exploration and exploitation of minerals.

04. Establishment of infrastructure for telecommunications network, transmission and provision of internet and telecommunications services.

05. Establishment of public postal network and provision of postal services and express services.

06. Construction and operation of river ports, sea ports, terminals and airports.

07. Transportation of goods and passengers by railway, airway, roadway and sea and inland waterways.

08. Catching of aquaculture.

09. Production of tobacco.

10. Real estate business.

11. Import, export and distribution business.

12. Education and training.

13. Hospitals and clinics.

14. Other investment sectors in international treaties of which Vietnam is a member and which restrict the opening of the market to foreign investors.

Investment conditions applicable to foreign investors with investment projects in the sectors stipulated in this Appendix must conform with the provisions in international treaties of which Vietnam is a member.

APPENDIX IV
LIST OF SECTORS IN WHICH INVESTMENT IS PROHIBITED
(Issued with Decree 108/2006/ND-CP of the Government dated 22 September 2006)

I. Projects which are detrimental to national defense and security and the public interest

01. Production and processing of drugs.

02. Investment in and commercial operation of secret investigation services violating the State interests, lawful rights and interests of organizations and individuals.

03. Investment in the field of private detective [services] and investigation.

II. Projects which are detrimental to historical relics, culture, ethics and Vietnamese fine customs

04. Projects for construction within the premises of national historical relics or cultural [works]; projects affecting adversely the architecture and landscape of national historical relics or cultural [works].

05. Production of depraved cultural or superstitious products.

06. Production of dangerous toys or toys which harm the noble personality and health of children or harm security, social order and safety.

07. Prostitution business; trading of women and children.

08. Experiments of human cloning.

III. Projects which harm the people’s health, or which destroy natural resources and the environment.

09. Production of chemicals in table 1 (in accordance with the International Convention).

10. Production of veterinary medicine, plant protective agents which are prohibited or not allowed to be used in Vietnam.

11. Production of medicines for treating humans, types of vaccines, medical biologic products, cosmetics, chemical products and preparations used for killing insects or bacteria which are not allowed to be used in Vietnam.

IV. Projects for the treatment of toxic waste brought into Vietnam; projects for the manufacture of any type of toxic chemicals or for the use of chemical agents prohibited by provisions of international treaties

12. Projects for the treatment of toxic waste brought into Vietnam; projects for the manufacture of any type of toxic chemicals or for the use of chemical agents prohibited by international treaties of which Vietnam is a member.

V. Other investment projects prohibited in accordance with the provision of laws

Decree no. 108-2006-ND-CP

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