TRANSFER OF INVESTMENT PROJECTS BY THE LAW ON INVESTMENT 2020

The operation of the investment project is always affected by many factors that lead the investor to consider transferring part or all of their investment project to other investors.

1. In which cases is the investor allowed to transfer the investment project?

Investors are permitted to transfer part or all of the investment project when one of the following conditions is met:

The investment project or part of the transferred investment project is not terminated;

In case the foreign investor receives the transfer of the investment project, part of the investment project must meet the conditions for market access, national defense and security and the provisions of the land law;

In case of transfer of investment projects associated with the transfer of land use rights and properties attached to the land, investors must comply with the provisions of land law;

In case of transfer of investment projects on construction of houses or real estate projects, investors must comply with the provisions of the law on housing and law on real estate business.

In addition, investors must meet the conditions specified in the written approval of investment policies, investment registration certificates, or other relevant laws (if any).

For state-owned enterprises other than those mentioned above, investors shall also comply with the provisions of the law on management and use of state capital invested in production and business in enterprises before adjusting investment projects.

2. Procedures for transfer of investment projects (Article 41 of the Law on Investment 2020, Article 48 Decree No. 31/2021/ND-CP)

In case of approval of investment guidelines and investment projects which have been granted investment registration certificates, investors carry out procedures for adjusting investment registration certificates in case the adjustment of investment projects changes the contents of investment registration certificates.

The dossier includes:

A written request for adjustment of the investment project;

Report on the implementation of the investment project to the time of transfer of the investment project;

Contracts or principle contracts on the transfer of part or the whole of investment projects;

A copy of documents on the legality of the investor transferring and receiving the transfer;

A copy of the investment registration certificate; Decision on approval of investment guidelines; Decision on investor approval (if any);

A copy of the BCC contract (for investment projects in the form of BCC contracts);

Copy of one of the following documents of the investor receiving the transfer of investment project: financial statements of the last 02 years or the investor's equity audit report, commitment to the financial support of the parent company, commitment to the financial support of financial institutions, the guarantee of financial capacity of investors, documents proving the financial capacity of investors.

- For investment projects that have been approved for investment policies and approved by investors, the investor transfers the entire investment project before the project is operated or there is a change in conditions for investors or the transfer of the project changes the content of approval of the investment policy, the procedure is as follows:

The investor transferring the project shall submit 08 sets of the above dossier to the Ministry of Planning and Investment or submit 04 sets of the above dossier to the investment registration authority corresponding to the competence to approve the project investment policy;

The Ministry of Planning and Investment or the investment registration agency above will consider the conditions for the transfer of investment projects to decide on the adjustment of investment projects.

The decision on approval for adjustment of the investor also records the transfer of the investor and the investor receiving the transfer, the part of the transferred project (if any) and is sent to the investment registration agency, the transferor investor, and the transferee investor.

- For investment projects that have been approved for investment policies but the transfer of projects does not change the contents of approval of investment policies, investors transferring projects are not required to carry out procedures for approval for adjustment of investment policies but carry out procedures for adjusting decisions on investor approval:

The Investor shall submit the above 04 sets of dossiers to the investment registration office, in which the written request for adjustment of the investment project shall be replaced in writing, requesting the investor's adjustment approval;

Within 03 working days after receiving a valid dossier, the investment registration authority will send it to the competent state agency of the same relevant level for consideration;

Within 15 days after receiving a valid dossier, the consulting agencies may give their opinions on the contents under their state management and send them to the investment registration agency;

Within 25 days after receiving a valid dossier, the investment registration authority may make an appraisal report and report it to the provincial-level People's Committee;

Within 07 working days after receiving the dossier and appraisal report, the provincial-level People's Committee decides to approve the investor adjustment;

The decision on approval for adjustment of the investor records the transferee and the investor receiving the transfer, the part of the project transferred (if any) and sent to the investment registration agency, the transferor investor, and the transferee investor.

For investment projects that have been approved for investment policies and have been put into operation, investors are not required to carry out procedures for approval for adjustment of investment policies when transferring projects.

For investment projects that have been granted investment registration certificates and are not subject to the approval of investment policies, procedures for project adjustment are as follows:

The investor transferring the investment project shall submit 01 sets of the above dossier to the investment registration agency;

The investment registration agency shall consider the conditions for the transfer of investment projects to adjust investment projects according to regulations. The adjusted investment registration certificate is sent to the transferor and the transferee.

- If a foreign investor receives the transfer of an investment project and establishes an economic organization for the implementation of an investment project, the following procedures must be carried out:

Investors transferring investment projects shall carry out procedures for adjustment of investment projects by the above provisions;

After completing the procedures, the foreign investor receiving the project transfer shall carry out procedures for the establishment of an economic organization under the provisions of the law of the enterprise corresponding to each type of economic organization.

From the date of issuance of the enterprise registration certificate or other papers of equivalent legal validity, the economic organization established by the foreign investor is the investor implementing the investment project.

ADK & Co Vietnam Lawyers