Circular No. 05/2001/TT-BKH dated August 30, 2001 of the Ministry oF Planning and Investment guiding the investment activities abroad by Vietnamese enterprises

CIRCULAR

GUIDING THE INVESTMENT ACTIVITIES ABROAD BY VIETNAMESE ENTERPRISES

Pursuant to Decree No. 22/1999/ND-CP of April 14, 1999 of the Government guiding the investment activities abroad of Vietnamese enterprises;

Pursuant to Decree No. 75/CP of November 01, 1995 of the Government on functions, tasks and powers of the Ministry of Planning and Investment;

The Ministry of Planning and Investment issues Circular guiding the implementation of investment activities abroad as follows:

Article 1. Subjects and scope of application

1. Vietnamese enterprises invest abroad, which are subject to the adjustment of this Circular shall include:

a) Enterprises established under the Law on State-owned Enterprises;

b) Cooperatives established under the Law on Cooperatives;

c) Enterprises established under the Law on Enterprises;

(hereinafter referred to as Vietnamese enterprises)

2. This Circular is applied only to Vietnamese enterprises invest abroad in the mode of transfer of the capital or other allowed assets abroad to invest directly as stipulated in Decree No. 22/1999/ND-CP of April 14, 1999 of the Government.

3. This Circular shall not apply to the following circumstances:

a) Investment abroad of enterprises with foreign investment capital established under the Law on Foreign Investment in Vietnam;

b) Investment abroad of Vietnamese enterprises in the mode of credit loans, share buying, international tenders or in financial, banking or insurance.

Article 2. Granting licenses for investment abroad

1. Vietnamese enterprises shall be allowed to invest abroad after getting the licenses for investment abroad granted by the Ministry of Planning and Investment.

2. The consideration for granting licenses for investment abroad shall comply with the provisions stipulated at Article 6 of Decree No. 22/1999/ND-CP of April 14, 1999 of the Government on the basis of being suitable with the socio-economic request in each period and is implemented according to the following two steps:

a) Registration for being granted investment license;

b) To examine and approving the granting of investment license.

Article 3.Registration dossier for the granting of investment license

1. For projects invested abroad by the investors not belong to the state-owned sector and with the investment capital of under US$1,000,000 stipulated at Clause 2, Article 6 of Decree No. 22/1999/ND-CP of April 14, 1999 of the Government, Vietnamese enterprises shall make dossiers for the project according to the registration steps for the granting of license for investment abroad and send to the Ministry of Planning and Investment the following documents:

a) The application for investment abroad;

b) A copy of the Certificate of Business Registration of the enterprise (notarized)

c) The document of accepting investment granted by the competent body of country receiving investment (if any); contract, agreement with foreign partner on the investment project (for joint-ventures or other investment modes with the participation of foreign partners).

d) The financial report of enterprise in the nearest 01 year (audited)

2. The dossier of registration for the granting of investment license shall be made in 05 sets, including at least 01 original set. The application for registration for investment abroad shall be made according to Form 1 of Appendix I enclosed with this Circular.

3. The Ministry of Planning and Investment shall make procedures of registration for granting investment license within 15 working days as from the date of receiving the dossier.

Article 4. Dossier of appraisal for granting investment licenses

1. For projects invested abroad by the State-owned enterprises, regardless the scale and investment purpose, and projects invested by other economic sectors with the investment capital of US$1,000,000 upward stipulated at Clause 1, Article 6 of Decree No. 22/1999/ND-CP of April 14, 1999 of the Government, Vietnamese enterprises shall have to make up the project dossier in accordance with the provisions on appraisal of granting licenses for projects invested abroad and send to the Ministry of Planning and Investment.

The dossier of appraisal for granting investment licenses shall include the following documents:

a) The application for investment abroad;

b) The copy of Certificate of Business Registration of the enterprise (notarized);

c) The exposition on investment project;

d) The document of accepting investment issued by the competent body of the country receiving the investment (if any), contract, agreement with the foreign partner on investment project (for joint ventures or other types of investment with the participation of foreign partners).

e) The financial report of the enterprise in the nearest 01 year (audited)

g) The document of accepting investment abroad issued by the body that issued the decision of establishment of the enterprise (for State-owned enterprises) or by the People’s Committees of the provinces and centrally-run cities, where the enterprise registered for business (for enterprises of other economic sectors).

2. The dossier of appraisal for granting investment license shall be made in 08 sets, including at least 01 original set. The application for investment abroad and the exposition on the investment project shall be made according to Form 2 and 3 of Appendix I issued together with this Circular.

3.The process and the contents of appraisal shall be in conformity with the provisions in Article 10 of Decree No. 22/1999/ND-CP of April 14, 1999 of the Government.

Article 5. Amendments and supplements of the project dossier

1. In case where the project dossier referred in Article 3 and Article 4 of this Circular is not valid or not complete, the Ministry of Planning and Investment shall require in writing the enterprise to supplement and amend within 15 working days as from the date of receiving it.

2. Within 30 working days as from the date of receiving the request for amending and supplementing the project dossier, the enterprise shall have to submit the documents on amendments and supplements to the Ministry of Planning and Investment; if pass the above time limit and there is no response from the enterprise or the reply documents do not meet the demand, the application for investment abroad of the enterprise shall be considered expired.

Article 6. Adjustment of the investment licenses

In the process of investing abroad, Vietnamese enterprises may propose the Ministry of Planning and Investment to adjust a number of articles stipulated in the Investment License to be suitable with the investment activities abroad in the following cases:

a) Changes in the target of investment abroad;

b) The expanding of the scale of investment abroad;

c) Transfer of the investment capital abroad.

Article 7. Process of investment license adjustment

1. Vietnamese enterprises invest abroad shall have to make the dossier for adjustment of investment licenses, including the following documents:

a) The application for adjustment of investment licenses;

b) The exposition on reasons and contents of the adjustments;

c) The report on investment activities abroad by the time the investment license adjusted

2. The dossier for adjustment of investment license shall be made in 03 sets, including at least 01 original set. The dossier for adjustment of the investment license shall be made according to Form 4 and 5 of Appendix I issued together with this Circular.

Article 8. To register for the project implementation

1.Within 60 days as from the date when the investment projects of enterprise has approved according to the legislation of the investment receiving country, the enterprise shall have to send to the Ministry of Planning and Investment a copy of the approval decision (or other similar documents) and the report of registration for the implementation of the project.

2. The contents of the registration for the project implementation shall include:

a) Name, address and the head office of the enterprise, its branches and representative office (if any);

b) Target and trading lines;

c) The charter capital of the enterprise, capital contributed by Vietnamese enterprise

d) Full name and address of the Vietnamese enterprise’s representative abroad and the enterprise’s representative in Vietnam.

3. If there are any changes, Vietnamese enterprise shall have to make re-registration at the Ministry of Planning and Investment within 30 working days as from the date that these changes happen.

4. The Ministry of Planning and Investment shall have to send a copy of the Investment License and a copy of report on registration for the project implementation to the tax body, bank or the relevant economic and technical management body to implement the State management within their assigned function.

5. Within 6 months as from the date of being granted license to invest abroad, if the investment project is not approved by the investment receiving country or does not put into operation, the enterprise shall have to report it to the Ministry of Planning and Investment. Depending on each case, if there is a basis for determining that the reasons for that are subjective, the Ministry of Planning and Investment shall decide to withdraw the investment license and notify the bodies referred at Clause 4 of this Article of this decision.

In case of plausible reasons, the enterprise shall have to report to the Ministry of Planning and Investment for extension and must be approved by the Ministry of Planning and Investment.

Article 9. Report regime

1. Vietnamese enterprise investing abroad shall have to make up a periodical report as stipulated at Article 17 of Decree No.22/1999/ND-CP of April 14, 1999 of the Government.

2. In case of necessity, the Ministry of Planning and Investment may ask Vietnamese enterprise investing abroad to report on investment activities abroad.

3. Report on investment activities of the enterprise must be made in accordance with Appendix II enclosed with this Circular.

Article 10. Termination of the investment activities abroad

1. Vietnamese enterprises shall be terminated to do their investment activities abroad in the following cases:

a) Vietnamese enterprises complete the project invested abroad as stipulated at Article 15 of Decree No.22/1999/ND-CP of April 14, 1999 of the Government;

b) Enterprise established abroad becomes dissolved or goes bankrupt under the provisions of the law of foreign country;

c) Vietnamese enterprise does not implement the report regime on registration for project implementation and on activities as stipulated in this Circular.

2. In the above-mentioned cases, the Ministry of Planning and Investment shall make decision to terminate the investment activities abroad, withdraw the investment license and notify the concerned bodies of the decision.

Article 11. Commendation and handling of violations

1. Vietnamese enterprises invest abroad and individuals who record outstanding achievements in investment activities abroad shall be commended and/or rewarded according to the law provisions.

2. The handling of violations in investment activities abroad shall comply with the provisions in Article 19 of Decree No. 22/1999/ND-CP of April 14, 1999 of the Government, this Circular and other relevant provisions of the Vietnam’s law.

Article 12. Implementation provisions

1. This Circular takes effect 15 days after the date of its signing.

2. Projects invested abroad, which have been granted investment licenses before the effective date of this Circular shall have to immediately report on registration for the project implementation as stipulated at Article 8 of this Circular to the Ministry of Planning and Investment.

3. Any problems arising in the course of implementation of investment projects abroad and this Circular, enterprises shall report therefor immediately to the Ministry of Planning and Investment for consideration and appreciate adjustments.

APPLICATION FOR REGISTRATION FOR INVESTMENT ABROAD

Respectfully to:The Ministry of Planning and Investment

- Pursuant to Decree No. 75/CP of November 01, 1995 of the Government on function, task and power of the Ministry of Planning and Investment;

- Pursuant to Decree No. 22/1999/ND-CP of April 14, 1999 of the Government on investment abroad of the Vietnamese enterprises;

- Pursuant to Circular No..../ 2001/BKH-TT of dated. , 2001 of the Ministry of Planning and Investment guiding the investment activities abroad by the Vietnamese enterprises.

The following signed people would like to submit to the Ministry of Planning and Investment an application for investment licenseabroad :

I. VIETNAMESE ENTERPRISE

1. Name of enterprise:

2. Business Registration (or Establishment Decision) No. ...dated...,granted by....(name of granting body granted) in....

3. Charter capital:

4. Number of account.........at....bank;

5. Address............Tel............Fax..........E-mail..................;

6. Representative............Position...........;

7. Financial situation of the enterprise (submit a brief financial report of the enterprise)

8. Total assets of the enterprise

(If there are several Vietnamese enterprises invest abroad together, the brief report on total assets of each enterprise is required)

II. PROJECTS INVESTED ABROAD

1. Mode of investment: (prescribe in detail the mode of investment abroad according to the law of country receiving investment)

2. Investment address abroad:

3. Term of investment abroad:

4. Target and area of investment abroad: (prescribe in detail)

5. Capital invested abroad:

5.1. Estimated total investment capital: US$..., including:

5.2. Capital source:

- Owned capital: US$...

- Borrowed capital: US$...(prescribe in detail the conditions for borrowing, guarantee, payment... )

6. List of equipment and machinery invested abroad (if any).

7. Tempo of the project implementation (as from the date of being granted license)

8. Assessment of the result of project invested abroad:

9. Problems related to the laborers:

9.1. Demand for bringing laborers abroad:

9.2. Regulations related to the assurance of interests of Vietnamese laborers abroad

9.3. Mode of recruiting employment, plan for training, plan for bringing Vietnamese laborers abroad.

III. WE PLEDGE:

1. To be responsible on the faithfulness and the accuracy of the contents of the application and enclosed dossier.

2. To fully comply with the regulations specified in the Investment License and abide by the Vietnam’s law and the law of the investment receiving country.

IV. ATTACHED DOCUMENTS:

1.Copy of Establishment Decision (or Business Registration) of the enterprise

2. Financial report of the enterprise in the nearest year.

APPLICATION FOR INVESTMENT ABROAD

Respectfully to:The Ministry of Planning and Investment

- Pursuant to Decree No. 75/CP of November 01, 1995 of the Government on functions, task and powers of the Ministry of Planning and Investment;

- Pursuant to Decree No. 22/1999/ND-CP of April 14, 1999 of the Government on investment abroad of the Vietnamese enterprises;

- Pursuant to Circular No..../ 2001/BKH-TT dated..., 2001 of the Ministry of Planning and Investment guiding the investment activities abroad by the Vietnamese enterprises.

The following signed people would like to submit to the Ministry of Planning and Investment and application for investment abroad:

I. VIETNAMESE ENTERPRISE

1. Name of enterprise:

2. Business Registration (or Establishment Decision) No. ... dated..., granted by....(name of granting body) in....

3. Charter capital:

4. Number of account........ at....bank;

5. Address of the head office............Tel............Fax..........E-mail..................;

6. Representative............Position...........;

Would like to be granted license for investment abroad with the following targets and the operation areas:

-..............................................

-..............................................

II. WE PLEDGE:

1. To be responsible on the faithfulness and the accuracy of the contents of the application and enclosed dossier.

2. To fully comply with the regulations specified in the Investment License and abide by the Vietnams law and the law of the investment receiving country.

III. ATTACHED DOCUMENTS:

1.Copy of Business Registration (or Establishment Decision) of the enterprise

2. Exposition on project invested abroad

3. Financial report of the enterprise in the nearest year.

4.................

EXPOSITION ON PROJECT INVESTED ABROAD

I.VIETNAMESE ENTERPRISE

1. Name of enterprise:

2. Business Registration (or Establishment Decision) No. ... dated..., granted by....(name of granting body) in....

3. Charter capital:

4. Number of account........at....bank;

5. Address of the head office............Tel............Fax..........E-mail..................;

6. Representative............Position...........;

(If there are several investors, the description of every investor according to the above contents is required)

II. FINANCIAL SITUATION OF THE ENTERPRISE

1. Exposition on the financial situation of the enterprise (enclosed with the audited financial report in the nearest year)

2. Summing up the assets of the enterprise

2.1. Available assets of the enterprise

2.2. Debt assets of the enterprise

3. Financial capabilities for carrying out the project abroad

3.1. Owned capital

3.2. Borrowed capital

3.3. Capability for mobilizing capital

III. PROJECT INVESTED ABROAD

1.Mode of investment (prescribe in detail the mode of investment abroad according to the provisions specified in the law of the investment receiving country)

2. Address of investment abroad:

3. Term of investment abroad:

4. Target and areas of investment abroad: (detail description)

4.1. Target

4.2. Areas:

4.3. Exposition on products/services

4.4. Exposition on consumption market

5. Investment capital estimated to transfer abroad:

5.1. Total estimated investment capital: US$....., including

5.2. Capital source:

- Owned capital: US$...

- Borrowed capital: US$...(prescribe in detail the conditions for borrowing, guarantee, payment... )

6. Technology, equipment and machinery

6.1. Exposition on technology

Diagram of main technological process (or main technologies)

Main characteristics of the selected technological solutions

Draft contract on the technology transfer or technical assistance (if any)

6.2. List of machinery and equipment exported for investment abroad (if any)

7. Import and export plan for carrying out the project invested abroad

8. Problems related to the laborers

8.1. Demand for bringing Vietnamese laborers abroad

8.2. Regulations related to the assurance of interests for Vietnamese laborers abroad

8.3. Mode of recruiting employment, plan for training, plan for bringing Vietnamese laborers abroad.

9. Exposition on the tempo of the project implementation

10. Financial analysis

10.1. Turnover (value)

10.2. Expectation on profits, losses

11. Assessment of the efficiency of the project

11.1. Financial efficiency

11.2. Social and economic efficiency of the project

12. Self assessment and proposal

12.1. Efficiency of the project

12.2. Proposals on preferential and other measures must be applied by the State to the project (if any)

APPLICATION FOR ADJUSTMENT OF INVESTMENT LICENSE

Respectfully to:The Ministry of Planning and Investment

- Pursuant to Decree No. 75/CP of November 01, 1995 of the Government on functions, tasks and powers of the Ministry of Planning and Investment;

- Pursuant to Decree No. 22/1999/ND-CP of April 14, 1999 of the Government on investment abroad of the Vietnamese enterprises;

- Pursuant to Circular No..../ 2001/BKH-TT dated..., 2001 of the Ministry of Planning and Investment guiding the investment activities abroad by the Vietnamese enterprises.

The following signed people would like to submit to the Ministry of Planning and Investment and application for adjustment of Investment License No. ....granted by the Ministry of Planning and Investment dated......

I. ADJUSTMENT CONTENTS:

-.........................................................

-..........................................................

................

II. WE PLEDGE:

1. To be responsible for the faithfulness and the accuracy of the contents of the application and enclosed dossier.

2. To fully comply with the regulations specified in the Investment License and abide by the Vietnam’s law and the law of the investment receiving country.

III. ATTACHED DOCUMENTS:

Exposition on reasons of adjustment, adjustment contents and other problems on the capital and financial related to the adjustment of the Investment License
2. Report on investment activities abroad by the time of adjustment of the Investment License

3.................

EXPOSITION ON ADJUSTMENT OF INVESTMENT LICENSE

I.VIETNAMESE ENTERPRISE

1. Name of enterprise:

2. Business Registration (or Establishment Decision) No. ... dated..., registered (or granted) in....

3. Charter capital:

4. Number of account........ at....bank;

5. Address of the head office............Tel.:...........Fax:..........E-mail..................;

6. Representative............Position...........;

(If there are several investors, the description of every investor according to the above contents is required)

II. FINANCIAL SITUATION OF THE ENTERPRISE

1. Exposition on the financial situation of the enterprise (enclosed with the audited financial report in the nearest year)

2. Summing up the assets of the enterprise

2.1. Available assets of the enterprise

2.2. Debt assets of the enterprise

3. Financial capabilities for carrying out the project abroad

3.1. Owned capital

3.2. Borrowed capital

3.3. Capabilities for mobilizing capital

III. REPORT ON SITUATION OF THE PROJECT INVESTED ABROAD

1. Exposition on the implementation of targets regulated in the Investment License

2. Detail on the investment activities abroad

3. Exposition on the financial situation of the project invested abroad (enclosed with the audited financial report by the time of application for adjustment of Investment License)

IV. EXPOSITION ON ADJUSTMENT CONTENTS OF THE INVESTMENT LICENSE

1. Detail on adjustment contents and reasons for the adjustment

2. Exposition on capital invested abroad related to the adjustment of the Investment License

Respectfully to:The Ministry of Planning and Investment

A. THE SITUATION OF IMPLEMENTATION OF THE INVESTMENT PROJECT IN THE INVESTMENT RECEIVING COUNTRY

- Project owner of Vietnamese side:

- Name of the project invested abroad:

- Number of Investment License:................ date of issuance: .....

- Investment capital registered to contribute by Vietnamese enterprise for carrying out the project:.................................................

- Duration of operation: ....years

- Mode of investment:........................(classified according to regulations issued by the investment receiving country)

- Address:

- Tel.....................Fax..........................

We pledge to be responsible for the faithfulness and the accuracy of the reported figures.

Note: The financial report certified by the auditing body or competent body of the investment receiving country must be enclosed with this report.