Công văn 5122/BKHĐT-PC năm 2015 triển khai thi hành Luật đầu tư do Bộ Kế hoạch và Đầu tư ban hành

Proceeding with the official dispatch No. 4326/BKHDT-DTNN and No. 4366/BKHDT-PC dated June 30, 2015, the Ministry of Planning and Investment requests you to go through the following procedures:

1. Handling of investment project dossiers received before the Investment Law enters into force:

At the section 8 of the official dispatch No. 4366/BKHDT-PC, the Ministry of Planning and Investment has already provided instructions on dealing with investment project dossiers received by July 1, 2015. On the basis of reports and recommendations submitted by certain localities, the Ministry of Planning and Investment hereby makes the following suggestions:

a) With regard to investment project dossiers that meet statutory requirements for grant of the Investment Certificate under the provisions of the Decree No. 108/2006/ND-CP, the Investment Registration Authority must rely on received investment project dossiers to issue the Investment Registration Certificate to investors under the provisions of the Investment Law adopted in 2014 on the basis of a written agreement with investors on issuance of the Investment Registration Certificate in accordance with the 2014 Investment Law.

b) In case investment project dossiers have not been valid yet and/or have not met requirements for issuance of the Investment Certificate under the provisions of the Decree No. 108/2006/ND-CP, the Investment Registration Authority must instruct investors to provide additional documents as stipulated in the 2014 Investment Law, unless otherwise stipulated by the 2014 Investment Law.

2. With regard to procedures for issuance of the Investment Registration Certificate to projects which are not specified as one of the cases in the decision on investment proposals in accordance with the 2014 Investment Law.

a) Investors are required to submit 01 investment project dossier to the Investment Registration Authority as prescribed in Point a Clause 2 Article 37 enshrined in the 2014 Investment Law.

b) Within a permitted period of 15 days of receipt of all required documents, the Investment Registration Authority shall issue the Investment Registration Certificate to investors in accordance with regulations laid down in Point b Clause 2 Article 37 enshrined in the 2014 Investment Law if they meet the following requirements:

- Their investment project dossier is valid in accordance with Point a, Clause 2 Article 37 of the 2014 Investment Law;

- The investment project is not aimed at industries or sectors banned for investment and business in accordance with Article 6 of the 2014 investment Law;

- Conditions for foreign investors’ investment (if any) should be met under the instructions given in Point c hereunder.

c) Conditions for foreign investors’ investment (conditions for market access) refer to conditions which foreign investors are obliged to meet at the time of establishing economic organizations, executing business cooperation contracts or making investment in the form of capital contribution, paid-in capital or shares of economic organizations.

The Investment Registration Authority shall refer to investment requirements stipulated by laws and International Agreements of which Vietnam is a member (including the Schedule of Specific Commitments in Services between Vietnam and WTO, and bilateral and regional Investment Agreements) so as to consider issuing foreign investors and amending the Certificate of Investment Registration, or the registration of capital contribution, paid-in capital or share repurchase in accordance with the 2014 Investment Law.

In respect of industries or sectors for which Vietnam has not made commitments, or those which are not specified in the Schedule of Specific Commitments in Services between Vietnam and WTO, the Investment Registration Authority shall consult with relevant Ministries or industries before consideration and decision.

3. Procedures for amending the Investment License, the Investment Certificate (or the Business Registration Certificate):

a) If enterprises only wish to change business registration contents, they need to complete procedures at the Business Registration Authority to be issued the Enterprise Registration Certificate. Application documents, processes and procedures for changing business registration contents shall conform to similar regulations laid down in the 2014 Enterprise Law.

The Business Registration Authority shall issue the Enterprise Registration Certificate to replace business registration contents of the Investment License, the Investment Certificate (or the Business Registration Certificate). Contents of the business registration provided in regulations of the Investment License, the Investment Certificate (or the Business Registration Certificate) shall be annulled as from the date on which enterprises are issued the Enterprise Registration Certificate; contents of investment projects provided in the Investment License, the Investment Certificate (or the Business Registration Certificate) shall continue to be valid.

In case enterprises wish to change registration contents of business to which capital contribution is made, and of which shares or paid-in capital is repurchased by foreign investors as stipulated in Clause 1 Article 26 of the 2014 Investment Law, investors are required to go through procedures for registration of capital contribution, share or paid-in capital purchase in accordance with Article 26 of the 2014 Investment Law before enterprises implement procedures for issuance of the Enterprise Registration Certificate.

b) In case enterprises only wish to amend investment project contents, they are required to implement procedures for issuance of the Investment Registration Certificate at the Investment Registration Authority. Application documents, processes and procedures for issuance of the Investment Registration Certificate shall conform to regulations laid down in the 2014 Investment Law equivalently applicable to amended contents.

The Business Registration Authority shall issue the Investment Registration Certificate to enterprises to replace investment project contents provided in the Investment License, the Investment Certificate (or the Business Registration Certificate). Business registration contents provided in the Investment License, the Investment Certificate (or the Business Registration Certificate) shall continue to be valid.

c) In case investors wish to amend both business registration contents and investment project contents, they are required to implement procedures for amending business registration contents at the Business Registration Authority so as to be issued the Enterprise Registration Certificate; then, they have to amend investment project contents at the Investment Registration Authority to be issued the Investment Registration Certificate in accordance with relevant regulations laid down in Point a and b of this Section.

d) In case investors wish to substitute the Investment Registration Certificate or the Enterprise Registration Certificate for the Investment License, the Investment Certificate (or the Business Registration Certificate), they shall implement procedures for issuance of a substitute for the Enterprise Registration Certificate at the Business Registration Authority, and then substituting the Investment Registration Certificate at the Investment Registration Authority.

Application for issuance of a substitute for the Enterprise Registration Certificate shall be composed of the written request for issuance of a substitute for the Enterprise Registration Certificate, the copy of the Investment License, and the Investment Registration Certificate (or the Business Registration Certificate) and the Tax Registration Certificate.

Application for substituting the Investment Registration Certificate shall be composed of the written request for issuance of a substitute for the Investment Registration Certificate, the copy of the Enterprise Registration Certificate (have already issued as stipulated in this point), the Investment License, and the Investment Registration Certificate (or the Business Registration Certificate).

The Business Registration Authority and the Investment Registration Authority shall issue a substitute for the Enterprise Registration Certificate and the Investment Registration Certificate to investors within 3 working days of receipt of all required documents. This shall apply to the Enterprise Registration Certificate stipulated in business registration contents that remain valid in the Investment License, the Investment Certificate (or the Business Registration Certificate); the Investment Registration Certificate stipulated in investment project contents that remain valid in the Investment License, the Investment Certificate (or the Business Registration Certificate).

4. Procedures for establishment of branches and representative offices of an enterprise

Foreign-invested enterprises shall have the right to apply for permission to establish their branches or representative offices outside of their main offices at the Business Registration Authority in accordance with Article 46 of the 2014 Enterprise Law.

In order to obtain permission to establish branches, enterprises shall not necessarily have investment projects and complete procedures stipulated in the 2014 Investment Law.

Application documents, processes and procedures for registration of operations of branches and representative offices shall conform to relevant regulations laid down in the 2014 Enterprise Law.

5. Procedures for supplementation of business industries or sectors of foreign-invested enterprises

a) Foreign-invested enterprises shall be allowed to amend or supplement business industries or sectors at the business registration authority but they do not necessarily need to have investment projects.

b) Supplementation of business industries or sectors of foreign-invested enterprises must comply with investment requirements applying to foreign investors (if any) under the instructions of Point c Section 2 hereof.

6. Other matters

a) The Investment Registration Authority and the Business Registration Authority shall be responsible for providing sufficient and detailed guidance for investors and enterprises in the course of implementing administrative procedures for investment, business activities in compliance with regulations laid down in the Investment Law and the Enterprise Law adopted in 2014.

In case investment project dossiers need to be amended or supplemented, the Business Registration Authority and the Investment Registration Authority shall provide detailed and clear guidance on these contents for investors and enterprises.

b) Assets used for capital contribution to enterprises in Vietnamese dong, a freely convertible foreign currency or gold must be valuated under the provisions of Article 37 of the 2014 Enterprise Law. The Business Registration Authority shall not be allowed to request enterprises to submit the valuation document in breach of regulations laid down in this Article.

In the course of implementation, if there is any difficulty that may arise, local authorities should report to the Ministry of Planning and Investment for further guidance./.

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