Circular No. 06/2016/TT-BKHDT dated June 28, 2016 of the Ministry of Planning and Investment guiding a number of articles of Decree no. 15/2015/ND-CP dated february 14, 2015 by the Government on investment in the form of public-private partnerships

CIRCULAR

Guiding a number of articles of the Government’s Decree No. 15/2015/ND-CP of February 14, 2015, on investment in the form of public-private partnership[1]

Pursuant to the November 26, 2014 Investment Law;

Pursuant to the June 18, 2014 Law on Public Investment;

Pursuant to the Government’s Decree No. 15/2015/ND-CP of February 14, 2015, on investment in the form of public-private partnership;

Pursuant to the Government’s Decree No. 30/2015/ND-CP of March 17, 2015, detailing a number of articles of the Bidding Law regarding selection of investors;

Pursuant to the Government’s Decree No. 116/2008/ND-CP of November 14, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Planning and Investment;

At the proposal of the Director of the Legal Department, the Minister of Planning and Investment promulgates the Circular guiding a number of articles of the Government’s Decree No. 15/2015/ND-CP of February 14, 2015, on investment in the form of public-private partnership.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Circular guides a number of articles of the Government’s Decree No. 15/2015/ND-CP of February 14, 2015, on investment in the form of public-private partnership (below referred to as Decree No. 15/2015/ND-CP), covering:

a/ Investment form conversion of projects funded with public investment capital;

b/ Project contracts, similar contracts and project contract forms;

c/ Order and procedures for grant, modification and revocation of investment registration certificates and establishment of project enterprises and forms of relevant documents;

d/ Some other contents to be guided by the Ministry of Planning and Investment as prescribed in Decree No. 15/2015/ND-CP.

2. Mechanisms for management and use of funding sources in support of investment preparation; procedures for formulation and approval of project proposals and feasibility study reports; use of funds for investment preparation and project implementation by ministries, sectors and provincial-level People’s Committees; financial plans of projects; and final settlement of project facilities must comply with specific guidance of the Ministry of Planning and Investment and Ministry of Finance.

Article 2. Subjects of application

This Circular applies to competent state agencies, investors, project enterprises, lenders, and agencies, organizations and individuals involved in the implementation of investment projects in the form of public-private partnership.

Article 3. Interpretation of terms

1. Investment registration certificate-granting agency means an agency competent to grant, modify and revoke investment registration certificates prescribed in Article 39 of Decree No. 15/2015/ND-CP.  Investment registration certificate-granting agencies include the Ministry of Planning and Investment and People’s Committees of  provinces and centrally run cities (below referred to as provincial-level People’s Committees).

2. Competent state agency means a ministry, sector or provincial-level People’s Committee or an agency authorized by a ministry, sector or provincial-level People’s Committee to enter into and perform a project contract as prescribed in Article 8 of Decree No. 15/2015/ND-CP and Article 9 of this Circular.

3. Project facility means the infrastructure facility built under an investment project which is implemented in the contract form specified in Clause 3, 4, 5, 6, 7, 8 or 9, Article 3 of Decree No. 15/2015/ND-CP or another similar contract form.

4. Project means an investment project implemented in the contract form specified in Clause 3, 4, 5, 6, 7, 8 or 9, Article 3 of Decree No. 15/2015/ND-CP or another similar contract form.

5. Another similar contract means a contract signed between a competent state agency and an investor with the goals and characteristics similar to those of one or some of the project contracts specified in Clauses 3, 4, 5, 6, 7, 8 and 9, Article 3 of Decree No. 15/2015/ND-CP.

6. Valid project dossier means a dossier which comprises all required papers in  sufficient number of copies as prescribed in Decree No. 15/2015/ND-CP and this Circular and such papers are fully filled in as required by law.

7. Investment agreement means an agreement signed between a competent state agency and an investor after concluding negotiations for a project contract to certify that the parties have agreed on the contents of the draft project contract to be submitted to an investment registration certificate-granting agency, and on the rights and obligations of each party as prescribed in Clause 2, Article 30 of Decree No. 15/2015/ND-CP.

Article 4. Principles of carrying out the procedures for grant, modification and revocation of investment registration certificates and project implementation

1. When receiving a project dossier and carrying out related procedures, an investment registration certificate-granting agency shall:

a/ Check the validity of the project dossier as prescribed in Clause 6, Article 3 of this Circular;

b/ Appraise and grant, modify or revoke an investment registration certificate, carry out related administrative procedures falling under its competence and the procedures prescribed in Articles 39, 40 and 41 of Decree No. 15/2015/ND-CP, and comply with relevant provisions in Chapter IV of this Circular;

c/ In case of requiring modification or supplementation of the project dossier or refusing to grant or modify an investment registration certificate or to carry out related procedures as prescribed in Decree No. 15/2015/ND-CP and this Circular, notify such in writing to the investor, clearly stating the reason;

d/ Perform other tasks and exercise other powers as prescribed in Decree No. 15/2015/ND-CP, this Circular and other relevant laws.

2. Competent state agencies and investors shall    

a/ Be held responsible before law for the lawfulness, accuracy and truthfulness of project dossiers and documents to be sent to investment registration certificate-granting agencies and related agencies;

b/ Explain, and provide information and documents relating to, project dossiers as required in Decree No. 15/2015/ND-CP, this Circular and other relevant regulations;

c/ Perform other tasks and exercise other powers as prescribed in Decree No. 15/2015/ND-CP, this Circular and other relevant regulations.

3. Ministries, sectors and provincial-level People’s Committees shall: 

a/ Decide to approve project proposals, feasibility study reports, investor selection results and use of the state investment capital to implement projects according to their competence and the conditions, procedures and contents prescribed in Decree No. 15/2015/ND-CP, this Circular and other relevant laws;

b/ Give their written opinions on project-related matters falling under their management within the time limit prescribed in this Circular;

c/ Perform other tasks and exercise other powers as prescribed in Decree No. 15/2015/ND-CP, this Circular and other relevant regulations.

Chapter II

INVESTMENT FORM CONVERSION OF PROJECTS FUNDED WITH PUBLIC INVESTMENT CAPITAL

Article 5. Conversion conditions and forms

1. Projects which are invested with public investment capital and satisfy the conditions prescribed in Clause 1, Article 15 of Decree No. 15/2015/ND-CP may be considered for conversion into the form of public-private partnership.

2. The projects specified in Clause 1 of this Article may be converted for implementation in one of the project contract forms prescribed in Clauses 3, 4, 5, 6, 7 and 8, Article 3 of Decree No. 15/2015/ND-CP or another similar contract form, specifically:

a/ Conversion for implementation in the form BOT, BTO, BOO, BTL or BLT contract or another similar contract form, for projects which may be assigned to investors for construction, management, commercial operation and operation of project facilities under a plan prescribed in Article 6 of this Circular;

b/ Conversion for implementation in the form of BT contract, in case it is possible to arrange land for investors to implement other projects to recover capital invested in BT project facilities (below referred to as other projects) under a plan prescribed in Article 7 of this Circular;

c/ Other conversion forms and plans shall be considered and decided on a case-by-case basis at the proposal of ministries, sectors, provincial-level People’s Committees or investors.

Article 6. Plan on conversion of a project for implementation in the form of BOT, BTO, BOO, BTL or BLT contract or another similar contract form   

1. Withdrawal of the whole capital amount already invested by the State in the project facility:

The investor shall refund to the State the whole capital amount already invested by the State in the project facility according to the agreed schedule and arrange the remaining capital amount for continued building of the project facility and be entitled to management, commercial operation and operation of the project facility to recover the investment capital and earn profits for a certain period of time as agreed with the competent state agency. The period of time for the investor to manage, commercially operate and operate the project facility to recover the investment capital and earn profits shall be determined based on the whole construction investment capital amount and initial working capital amount required for the operation of the project facility, including also the capital amount the investor has refunded to the State and the capital amount it has arranged for further investment in the construction and operation of the project facility.

2. Use of the whole or part of the capital amount already invested by the State in the project as the State’s contribution for project implementation:

The whole or part of the capital amount already invested by the State shall be calculated as the State’s contribution for project implementation under the conditions prescribed in Article 11 of Decree No. 15/2015/ND-CP. The investor shall arrange the remaining capital amount in order to continue building the project facility and be entitled to management, commercial operation and operation of the project facility to recover capital and earn profits for a certain period of time as agreed with competent state agencies. The period of time for the investor to manage, commercially operate and operate the project facility to recover capital and earn profits shall be determined based on the remaining capital amount the investor has arranged to complete the construction of, and operate, the project facility and the capital amount it has refunded to the State (if any).

3. The value of the capital amount already invested by the State specified in Clauses 1 and 2 of this Article shall be determined based on the account settlement of the project at the time of conversion of the investment form under the guidance of the Ministry of Finance. Debts owed to contractors at the time of investment form conversion shall be determined in the plan on investment form conversion for negotiation with the investor as follows:

a/ The concerned ministry, sector or provincial-level People’s Committee shall balance capital sources to make payment for the capital construction work volume falling under its responsibility, adhering to the principles of allocating public investment capital to pay capital construction debts prescribed in Clause 2, Article 106 of the Law on Public Investment;

b/ The investor shall refund the capital amount already invested by the State, which will be used to make payment to contractors.

Article 7. Plan on conversion of projects for implementation in the form of BT contract

1. The value of the capital amount already invested by the State in a project facility shall be finalized up to the time of investment form conversion under the guidance of the Ministry of Finance. Debts owed to contractors at the time of investment form conversion shall be determined under Clause 3, Article 6 of this Circular.

2. On the basis of the capital amount already invested by the State determined under Clause 1 of this Article, the investor shall arrange the remaining capital amount in order to continue building the project facility and be allocated or leased land for implementation of another project to recover investment capital and earn profits. The value of the land area which the investor receives as payment shall be determined based on the capital amount the investor has arranged to complete the project facility construction.

3. The use of the land area as payment to the investor must comply with Clause 5, Article 3 of Decree No. 15/2015/ND-CP and the Prime Minister’s decision on the mechanism whereby the State uses land areas as payments to investors implementing investment projects in the form of BT contract.

Article 8. Dossiers, order and procedures for investment form conversion

1. Ministries, sectors and provincial-level People’s Committees shall make dossiers of proposal for investment form conversion. A dossier must comprise:

a/ A proposal for investment form conversion, clearly stating the necessity to convert the investment form and ability to satisfy the conditions prescribed in Clause 1, Article 5 of this Circular; the conversion form and plan as prescribed in Clause 2, Article 5, and Article 6 or 7 of this Circular; and mechanism for project implementation after the conversion (if any);

b/ Documents enclosed with the proposal for investment form conversion, including a project proposal with the contents prescribed in Clause 2, Article 16 of Decree No. 15/2015/ND-CP; a report on project implementation at the time of making the proposal for investment form conversion as prescribed by the law on public investment.

2. Ministries, sectors and provincial-level People’s Committees shall appraise and approve plans on investment form conversion and project proposals according to their competence prescribed in Clause 1, Article 17 of Decree No. 15/2015/ND-CP. For projects subject to investment policy decision by the Prime Minister specified in Clause 3, Article 17 of the Law on Public Investment, the ministries, sectors and provincial-level People’s Committees shall report to the Prime Minister for consideration and decision on the policy on investment form conversion before approving the conversion plan.

3. After plans on investment form conversion and project proposals are approved under Clause 2 of this Article, the ministries, sectors and provincial-level People’s Committees shall organize the formulation, appraisal and approval of projects’ revised feasibility study reports under Chapter IV of Decree No. 15/2015/ND-CP, and select investors to conduct project contract negotiations.

4. Selected investors and competent state agencies shall negotiate on project contracts, sign investment agreements, carry out the procedures for grant of investment registration certificates, and establish enterprises to implement projects under Chapters V and VI of Decree No. 15/2015/ND-CP.

Chapter III

PROJECT CONTRACTS AND OTHER SIMILAR CONTRACTS

Article 9. Agencies authorized to enter into and perform project contracts

1. The ministries, sectors and provincial-level People’s Committees shall authorize the entry into, and performance of, project contracts according to the conditions, principles and procedures prescribed in Clauses 2, 3 and 4, Article 8 of Decree No. 15/2015/ND-CP.

2. Agencies authorized to enter into and perform project contracts defined in Clause 2, Article 8 of Decree No. 15/2015/ND-CP include:

a/ Organizations under ministries and ministerial-level agencies which assist ministers and heads of ministerial-level agencies to perform the state management in their respective sectors and fields;

b/ Professional bodies of provincial-level People’s Committees;

c/ District-level People’s Committees.

3. Agencies authorized to enter into and perform project contracts shall take responsibility before the ministries, sectors and provincial-level People’s Committees within the scope of authorization prescribed in Clauses 3 and 4, Article 8 of Decree No. 15/2015/ND-CP.

Article 10. Contents of project contracts

1. A project contract must have the contents prescribed in Clause 1, Article 32 of Decree No. 15/2015/ND-CP and Appendix I to this Circular (not translated).

2. Parties may agree on documents attached to the project contract (including annexes and other documents and papers) which aim to certify or specify contents of the project contract.

3. The project contract’s contents related to the project implementation (if any) shall be agreed upon by the parties in conformity with the project contract.

Article 11. Entry into project contracts

Competent state agencies and investors shall enter into project contracts under Article 31 of Decree No. 15/2015/ND-CP. Within 7 working days after entering into a project contract, an investor shall send an original project contract to the investment registration certificate-granting agency for archive and investment supervision in accordance with law.

Article 12. Proposals for implementation of projects under other similar contracts

1. The ministries, sectors and provincial-level People’s Committees shall make proposals for implementation of project under other similar projects and send them to the Ministry of Planning and Investment for appraisal and submission to the Prime Minister for consideration and decision.

2. A proposal for implementation of a project under another similar contract must have the following contents:

a/ Necessity and advantages of the implementation of the project under another similar contract compared to the contracts specified in Clauses 3, 4, 5, 6, 7, 8 and 9, Clause 3 of Decree No. 15/2015/ND-CP;

b/ Methods of building, owning, managing, commercially operating, operating and transferring the project facility; methods of providing services, recovering investment capital and earning profits by the investor;

c/ International experiences on the performance of contracts similar to the proposed contract (if any).

3. Within 25 days after receiving a proposal for implementation of a project under another similar contract from a ministry, sector or provincial-level People’s Committee, the Ministry of Planning and Investment shall appraise and submit the proposal to the Prime Minister for consideration and decision.

Article 13. Transfer of rights and obligations under project contracts

1. An investor (below referred to as the transferor) may transfer part or the whole of its rights and obligations under the project contract to the lender or another investor (below referred to as the transferee) under Article 34 of Decree No. 15/2015/ND-CP.

2. The transferee must meet the following requirements:

a/ Having financial and managerial capacity to perform the project contract and related contracts;

b/ Committing to continue exercising the rights and performing the obligations of the transferor as specified in the project contract and related contracts;

c/ Fulfilling other requirements stated in the project contract, loan contract and related agreements between the competent state agency and the investor.

3. The investor shall carry out the procedures to modify the investment registration certificate under Article 18 of this Circular. In case the transfer of rights and obligations under the project contract leads to changes in the enterprise registration contents, the project enterprise shall carry out the procedures for change of enterprise registration contents in accordance with the enterprise law.

4. In case the transferor earns income from the transfer of rights and obligations under the project contract, it shall perform the financial obligations in accordance with the tax law and project contract.

Chapter IV

PROCEDURES FOR GRANT, MODIFICATION AND REVOCATION OF INVESTMENT REGISTRATION CERTIFICATES AND ESTABLISHMENT OF PROJECT ENTERPRISES

Article 14. Project dossiers and agencies receiving project dossiers

1. A dossier of application for an investment registration certificate (below referred to as project dossier) prescribed in Clause 1, Article 40 of Decree No. 15/2015/ND-CP is specified as follows:

a/ An application for an investment registration certificate, made according to Form No. 1 in Appendix II to this Circular (not translated);

b/ An investment agreement, made under Clause 2, Article 30 of Decree No. 15/2015/ND-CP, the draft project contract, made under Clause 1, Article 10 of this Circular, and draft contracts related to the project implementation (if any);

c/ A valid copy of the decision approving the project and feasibility study report;

d/ A valid copy of the document approving the policy on use of the state investment capital for project implementation as prescribed in Clause 2, Article 17 of Decree No. 15/2015/ND-CP (if any);

dd/ A joint venture contract between investors and the draft charter of the project enterprise (if any);

e/ A valid copy of the document approving the results of selection of investors to negotiate the project contract, issued by a competent person.

2. Agencies receiving project dossiers:

a/ The Ministry of Planning and Investment shall receive the project dossiers prescribed in Clause 1, Article 39 of Decree No. 15/2015/ND-CP;

b/ Provincial-level Investment and Planning Departments shall receive the project dossiers prescribed in Clause 2, Article 39 of Decree No. 15/2015/ND-CP.

Article 15. Order and procedures for appraisal and grant of investment registration certificates for projects managed by the Ministry of Planning and Investment

1. An investor shall submit 5 sets of the project dossier, including 1 original and 4 copies, as prescribed in Clause 1, Article 14 of this Circular to the Ministry of Planning and Investment.

2. Within 2 working days after receiving a project dossier, the Ministry of Planning and Investment shall check the validity of the dossier. If requiring modification or supplementation of the project dossier, the Ministry of Planning and Investment shall send only once to the investor a notice of contents which need to be modified or supplemented. The notice must clearly state modification or supplementation requirements and the reason for such requirements. The time for making dossier modification or supplementation shall not be calculated into the time limit for grant of an investment registration certificate prescribed in Clause 3, Article 40 of Decree No. 15/2015/ND-CP.

3. Depending on the objectives, characteristics, size and implementation location of the project, within 3 working days after receiving the valid project dossier, the Ministry of Planning and Investment shall consult in writing related ministries and sectors and the provincial-level People’s Committee of the locality where the project is expected to be implemented on matters under the latter’s management as prescribed in Articles 65, 66, 67, 68, 69 and 70 of Decree No. 15/2015/ND-CP.

4. Within 7 working days after receiving the Ministry of Planning and Investment’s request, the agencies specified in Clause 3 of this Article shall give opinions on matters under their management.

5. Within 25 days after receiving the valid project dossier, the Ministry of Planning and Investment shall appraise and grant an investment registration certificate to the investor.

6. To-be-appraised contents include:

a/ Conformity of the project’s contents registered for implementation with the decision approving the feasibility study report, the document approving the investor selection result and the project dossier;

b/ Application of the investment incentives, guarantees and supports and related agreements.

7. At the request of the Ministry of Planning and Investment, the investor shall make additional explanations to clarify the contents prescribed in Clause 6 of this Article. The time for making additional explanations shall not be calculated into the time limit for grant of an investment registration certificate prescribed in Clause 3, Article 40 of Decree No. 15/2015/ND-CP.

Article 16. Procedures for grant of investment registration certificates to projects managed by provincial-level People’s Committees

1. An investor shall submit 5 sets of project dossier, including 1 original and 4 copies as prescribed in Clause 1, Article 14 of this Circular to the provincial-level Department of Planning and Investment.

2. Within 2 working days after receiving the project dossier, the provincial-level Department of Planning and Investment shall check the validity of the dossier and carry out the procedures prescribed in Clause 2, Article 15 of this Circular.

3. Depending on the objectives, characteristics, size and implementation location of the project, within 3 working days after receiving the valid project dossier, the provincial-level Department of Planning and Investment shall consult in writing related local state management agencies on matters under the latter’s management. In case the project contract contains agreements on the application of investment guarantees and supports not provided in Decree No. 15/2015/ND-CP or conditions for project implementation beyond the competence of the provincial-level People’s Committee, the provincial-level Planning and Investment Department shall consult in writing related ministries and sectors on matters concerning the project contract which fall under the latter’s management as prescribed in Articles 64, 65, 66, 67, 68 and 69 of Decree No. 15/2015/ND-CP.

4. Within 7 working days after receiving a request from the provincial-level Department of Planning and Investment, the agencies specified in Clause 3 of this Article shall give opinions on matters under their management.

5. Within 20 days after receiving a valid project dossier, the provincial-level Planning and Investment Department shall make an appraisal report covering the contents specified in Clause 6, Article 15 of this Circular and submit it to the provincial-level People’s Committee.

6. Within 25 days after the agency in charge of receiving project dossiers receives a valid project dossier, the provincial-level People’s Committee shall grant an investment registration certificate to the investor.

7. At the request of the provincial-level Department of Planning and Investment, the investor shall make additional explanations to clarify the contents prescribed in Clause 6, Article 15 of this Circular. The time for making additional explanations shall not be calculated into the time limit for grant of an investment registration certificate prescribed in Clause 3, Article 40 of Decree No. 15/2015/ND-CP.

Article 17. Procedures for grant of investment registration certificates to other projects

1. Dossiers of other projects shall be made in accordance with the investment law and other relevant laws.

2. Procedures for grant of investment registration certificates to other projects 

a/ For other projects of foreign investors or economic institutions specified in Clause 1, Article 23 of the Investment Law, the procedures for grant of investment registration certificates comply with Article 37 of the Investment Law and relevant provisions of the Government’s Decree No. 118/2015/ND-CP of November 12, 2015, detailing and guiding a number of articles of the Investment Law;

b/ Other projects of domestic investors or economic institutions specified in Clause 2, Article 23 of the Investment Law are not required to carry out the procedures for grant of investment registration certificates. If wishing to be granted an investment registration certificate, investors shall carry out the procedures prescribed at Point a of this Clause.

3. Other projects shall be implemented at the same time with project facilities or after project facilities are completed as prescribed in Clause 3, Article 43 of Decree No. 15/2015/ND-CP.

Article 18. Modification of investment registration certificates

1. In case the adjustment of a project or modification or supplementation of a project contract does not lead to a change in the contents of the project’s investment registration certificate, the project investor shall send a notice of the changed contents to the investment registration certificate-granting agency, enclosed with documents relating to the adjustment of the project or modification or supplementation of the project contract for archive and investment supervision.

2. In case of changing the name of the project, the address or at-law representative of the investor, competent state agency or other information relating to the investor, the investor shall submit a request for modification of the investment registration certificate, made according to Form No. 3 in Appendix II to this Circular (not translated), to the  investment registration certificate-granting agency which shall consider and modify the certificate within 5 working days after receiving a valid dossier as prescribed in this Clause.

3. In case of adjustment of the feasibility study report or modification or supplementation of the project contract  leads to a change in the contents of the investment registration certificate other than the case specified in Clause 2 of this Article, the following provisions must be complied with:

a/ The investor shall submit 5 sets of dossier, including 1 original and 4 copies, to the investment registration certificate-granting agency. A dossier set must comprise a request for modification of the investment registration certificate, made according to Form No. 3 in Appendix II to this Circular, a report on the project implementation at the time of requesting modification of the investment registration certificate in accordance with the investment law, valid copies of the investment registration certificate and project contract, and the agreement on modification or supplementation of the project contract (for cases of project contract modification or supplementation) or valid copies of the decision on adjustment of the feasibility study report and the adjusted feasibility study report (for cases of project contract modification or supplementation due to feasibility study report adjustment) or the agreement on transfer of rights and obligations under the project contract (for cases of transfer of rights and obligations under project contracts) or the agreement on the lender’s receipt of the project and a valid copy of the lender’s establishment certificate or another equivalent paper (for case in which lenders receive projects);

b/ The investment registration certificate-granting agency shall carry out the relevant procedures for collecting opinions of related agencies on to-be-modified contents as prescribed in Articles 15 and 16 of this Circular so as to modify the investment registration certificate within 25 days after receiving a valid project dossier as prescribed at Point a of this Clause.

Article 19. Invalidation of project contracts and revocation of investment registration certificates

1. A project contract shall be invalidated in accordance with Clause 2, Article 36 of Decree No. 15/2015/ND-CP.

2. Order and procedures for revocation of an investment registration certificate:

a/ The investor and the competent state agency shall carry out the procedures to invalidate the project contract and settle related procedures as agreed in the project contract;

b/ Within 15 days after completing the procedures for invalidation of the project contracts and other relevant procedures prescribed at Point a of this Clause, the investor and competent state agency shall send to the investment registration certificate-granting agency a request for revocation of the investment registration certificate. The request for revocation of the investment registration certificate must state the project implementation and grounds for invalidation of the project contract and be enclosed with documents proving that procedures for invalidation of the project contract have been completed.

c/ Within 30 days after receiving the request for revocation of the investment registration certificate as prescribed at Point b of this Clause, the investment registration certificate-granting agency shall issue a decision to revoke the investment registration certificate.

3. For projects operating under investment certificates (which serve also as business registration certificates) or investment licenses, investment registration agencies shall issue a decision to invalidate investment registration contents of the investment certificates (which serve also as business registration certificates) or investment licenses.

4. The dissolution of project enterprises must comply with the law on enterprises and project contracts.

Article 20. Establishment, management and operation of project enterprises

1. After being granted investment registration certificates, investors shall carry out the enterprise registration procedures so as to establish project enterprises under Clause 1, Article 42 of Decree No. 15/2015/ND-CP. The management, operation and dissolution of project enterprises must comply with the enterprise and investment laws and project contracts.

2. For projects implemented under BT contracts and group-C projects of domestic investors, investors may decide either to establish project enterprises under Clause 1 of this Article or to directly implement projects, but shall separately manage and account projects’ investment capital and operations.

3. Conditions and procedures for reorganization of project enterprises must comply with the law on enterprises, project contracts and guidance provided by the Ministry of Planning and Investment based on proposals of competent state agencies and investors.

4. Investors shall contribute equity to projects according to the schedule agreed upon in project contracts. At the time of registering the establishment of project enterprises, investors shall value assets being their equity so as to contribute to charter capital in accordance with the law on enterprises. In case the charter capital of the project enterprise is lower than the equity determined based on the ratio prescribed in Clause 2, Article 10 of Decree No. 15/2015/ND-CP, the investor shall commit to increasing charter capital during the course of project implementation to ensure the ratio of equity as agreed upon in the project contract.

Chapter V

IMPLEMENTATION PROVISIONS

Article 21. Effect

1. This Circular takes effect on September 20, 2016.

2. The Ministry of Planning and Investment’s Circular No. 03/2011/TT-BKHDT of January 27, 2011, guiding the implementation of a number of provisions of the Government’s Decree No. 108/2009/ND-CP of November 27, 2009, on investment in the form of BOT, BTO and BT contracts ceases to be effective on the effective date of this Circular.

Article 22. Implementation responsibilities

1. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees, investors and related agencies and organizations shall implement this Circular.

2. Any problems arising in the course of implementation of this Circular should be promptly reported to the Ministry of Planning and Investment for further guidance.-

Minister of Planning and Investment
NGUYEN CHI DUNG