Circular No. 09/2016/TT-BKHDT dated June 30, 2016 of the Ministry of Planning and Investment guiding the monitoring, examination and evaluation of foreign investment activities in Vietnam

CIRCULAR

Guiding the monitoring, examination and evaluation of foreign investment activities in Vietnam[1]

Pursuant to Law No. 67/2014/QH13 on Investment;

Pursuant to the Government’s Decree No. 84/2015/ND-CP of September 30, 2015, on investment supervision and evaluation;

Pursuant to the Government’s Decree No. 118/2015/ND-CP of November 12, 2015, detailing and guiding the Law on Investment;

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 General Director of the Foreign Investment Agency;

The Ministry of Planning and Investment guides the monitoring, examination and evaluation of foreign investment activities as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application

1. Scope of regulation

This Circular prescribes the monitoring, examination and evaluation of foreign investment activities in Vietnam.

2. Subjects of application

a/ State management agencies related to foreign investment activities, including ministries, ministerial-level agencies, provincial-level People’s Committees, the investment registration agency, and agencies having the function of state management of investment under investment law;

b/ Foreign-invested economic organizations and foreign-invested projects operating on Vietnam’s territory.

Article 2. Interpretation of terms

1. Foreign-invested project means a project which is:

a/ Implemented by a foreign-invested economic organization and granted an investment registration certificate in accordance with law; or

b/ Implemented under a business cooperation contract with the participation of a foreign investor or foreign-invested economic organization under Clause 1, Article 23 of the Law on Investment.

2. Examination of the performance of state management of foreign investment means a planned periodical or an irregular activity of central state management agencies aiming at the investment registration agency in:

a/ The grant, modification and revocation of investment registration certificates;

b/ Management after granting an investment registration certificate;

c/ Compliance with master plans and plans approved by competent authorities.

Article 3. Purposes of monitoring, examination and evaluation of foreign investment activities

1. To monitor, examine and evaluate the observance of regulations on foreign investment management by various levels of local administrations and sectors.

2. To ensure the effect and efficiency of regulations on management of foreign-invested economic organizations and projects.

3. To ensure the investment process of projects to comply with regulations so as to guarantee the projects’ objectives and socio-economic efficiency.

4. To identify irrational issues and violations in the organization of implementation to timely deal with these issues or propose modification of foreign investment laws and policies and handle violations in accordance with law.

5. To supervise the remediation of identified problems and compliance with remedies.

6. To commend agencies, organizations and individuals for their achievements in implementing investment policies and laws.

Article 4. Principles of monitoring, examination and evaluation of foreign investment activities

1. To adhere to the principles of investment supervision and evaluation prescribed in Article 4 of the Government’s Decree No. 84/2015/ND-CP of September 30, 2015, on investment supervision and evaluation.

2. To be implemented according to prescribed competence, functions and tasks, order and procedures and in accordance with law.

3. Not to overlap in terms of scope of subjects, time and contents of examination; to ensure coordination in monitoring, examination and evaluation.

4. To be implemented in a timely, objective, accurate and strict and clear manner.

5. To ensure publicity and transparency and refrain from obstructing and negatively affecting normal operation of agencies, foreign-invested economic organizations and projects that are being monitored, examined and evaluated.

Article 5. Competence to monitor, examine and evaluate foreign investment activities

1. The investment policy-approving agency shall monitor and examine projects with approved investment policy under its competence.

2. The Ministry of Planning and Investment shall:

a/ Examine the performance of state management of foreign investment;

b/ Conduct overall supervision and evaluation of foreign-invested projects;

c/ Examine foreign-invested projects of the groups falling under the investment policy-deciding competence of the National Assembly or the Prime Minister; projects for which it has granted investment registration certificates or which it has verified or appraised; as directed by the Government or the Prime Minister; or as required by the state management of foreign investment activities by sector, field and locality.

3. Line ministries and ministerial-level agencies shall:

a/ Assume the prime responsibility for examining and assessing the observance of specialized management regulations concerning the fields of management under their competence;

Coordinate with the Ministry of Planning and Investment, provincial-level People’s Committees and the investment registration agency in monitoring, examining and evaluating the observance of the law on foreign investment;

Line ministries may authorize local line agencies to take charge of specialized examination and evaluation of sectors under their line management;

Local state agencies in charge of specialized fields shall report on results of examination and evaluation of investment projects in their localities to line ministries and notify such results to the investment registration agency in their localities as the basis for specialized and national monitoring, summarization, analysis and assessment according to the sectors under their assigned specialized management.

b/ Foreign-invested projects operating in specialized fields under the line ministries’ competence to consider and grant investment registration certificates shall be monitored, examined and evaluated by these ministries in accordance with specialized law.

Line ministries shall send annual examination and supervision reports to the Ministry of Planning and Investment for summarization before February 20 of the year following the reporting year;

c/ Conduct overall monitoring, examination and evaluation  of foreign investment activities in the sectors and fields under their management competence.

4. People’s Committees of provinces and centrally run cities shall:

a/ Conduct overall monitoring, examination and evaluation of foreign investment activities in the localities under their management;

b/ Directly or assign provincial-level Planning and Investment Departments to assume the prime responsibility for, and coordinate with specialized agencies of provincial-level People’s Committees in monitoring, examining and evaluating the operation of foreign-invested economic organizations and projects in their localities.

5. The investment registration agency shall monitor, examine and evaluate foreign-invested economic organizations and projects under its management in accordance with investment law.

6. Investors and economic organizations shall themselves monitor, examine and evaluate their projects as prescribed in Article 34, at Point a, Clause 1, and in Clause 2, Article 38, and in Clause 2, Article 64 of the Government’s Decree No. 84/2015/ND-CP of September 30, 2015, on investment supervision and evaluation.

Chapter II

MONITORING OF FOREIGN INVESTMENT ACTIVITIES

Article 6. Contents of monitoring foreign-invested projects

1. Implementation of the reporting regime by investors.

2. Implementation and operation of investment projects.

3. Observance of requirements on environmental protection and use of land, natural minerals by investment projects.

4. Timely response to and handling of arising problems under competence.

5. Monitoring of the remediation of arising problems and compliance with remedies by investors.

6. Reporting on and proposal of plans to solve difficulties and problems for foreign-invested economic organizations and foreign investors and to deal with issues falling beyond competence.

Article 7. Methods of monitoring foreign-invested projects

1. State agencies shall monitor foreign-invested projects by two methods: regular and specialized monitoring.

2. Regular monitoring includes direct and indirect monitoring.

Article 8. Regular monitoring

The investment registration agency shall assign responsibilities to its affiliated units, officers and experts to monitor different fields, localities and projects (below referred to as monitors).

1. Direct monitoring

a/ Monitoring through direct and regular activities to monitor localities and fields:

- Monitors shall regularly grasp the situation of assigned foreign-invested projects;

- Collecting documents and information for research, consideration and identification of problems relating to the assigned projects;

When necessary, they may request economic organizations and project owners to provide documents to serve monitoring;

- Regularly (biannually or annually) or irregularly send written report to responsible monitoring agencies on the implementation, operation and problems of foreign invested projects in the assigned localities and fields.

When detecting economic organizations and projects showing signs of violation, they shall immediately report to responsible monitoring agencies for consideration and decision;

- Urging economic organizations and project owners to implement the reporting regime;

- Making and preserving project management dossier.

b/ Monitoring through participation in state agencies’ working teams

When assigned to take part in a working team of the investment registration agency, superior agency or specialized management agency to examine and inspect a foreign-invested project under his/her assigned responsibility, a monitor shall:

- Proactively grasp the contents of work and persons to be worked with;

- Study reports and documents relating to the contents of work and persons to work with to serve the working team’s work and monitoring work;

- Grasp the actual situation on the economic organization or project with which the working team will work from various information channels (the press; organizations and individuals, complaints and denunciations, and verification, inspection, audit, tax administration, etc.) in order to identify problems in order to serve the working team’s work and monitoring work;

- Report the results of participation in the working team to the responsible monitoring agency;

- Make and preserve the project management dossier.

2. Indirect monitoring

Indirect monitoring of foreign-invested economic organizations and projects by the responsible monitoring agency (direct responsibility belonging to a monitor) is as follows:

- Studying and grasping the situation through reports and notification of results of examinations of competent state agencies; studying reports on project implementation results of foreign-invested economic organizations or projects in order to identify problems.

- Exchanging opinions with state management agencies (business registration, tax administration, police, customs, specialized management agencies, etc.) and socio-political organizations and through information reflected by the public and reported by the mass media and complaints and denunciations to grasp the situation of economic organizations and projects under management and monitoring responsibility. Studying documents and reports sent by monitored economic organizations and projects as requested to study and identify problems serving the monitoring.

When necessary and with the approval of the agency’s leaders, the monitors may talk with foreign-invested economic organizations and projects via phone or email or directly meet the latter to clarify the monitored contents. The contents of talks shall be sent in writing by the investment registration agency to foreign-invested economic organizations and project owners within 3 days after the exchange of opinions by phone, email or through direct meeting.

- Through monitoring, the monitors shall report to the investment registration agency to consider, remind and request the monitored economic organizations and projects to remedy mistakes and shortcomings (if any).

- Making and preserving project management dossier.

Article 9. Topical monitoring

1. Depending on state management requirements and through the grasp of the situation, the study of relevant reports and documents, the agency in charge of monitoring shall develop monitoring programs and plans for a number of foreign-invested economic organizations and projects under its management; and notify the latter of monitoring contents, starting time and period of monitoring.

2. The agency in charge of monitoring shall make detailed topical monitoring plans for the identified subjects, decide to form supervision teams and assign specific tasks to each team member and send a written request to the economic organization or project subject to monitoring to prepare and send reports and documents serving the monitoring.

3. Requesting the foreign-invested economic organization or project to organize a meeting for the supervision team to hear its explanation report and the participants to discuss the contents of the report.

The supervision team shall exchange its opinions, proposals and requests with the monitored economic organization or project on necessary issues.

4. The supervision team shall make a written report to the agency in charge of monitoring on results of monitoring of the monitored economic organization or project. The report must contain contents specified in Article 6 of this Circular.

5. The agency in charge of monitoring shall consider and assess the supervision team’s report; and notify in writing the strengths, weaknesses and mistakes (if any), and necessary requirements to the monitored economic organization or project.

6. The monitor shall keep the supervision team’s results in the project management dossier.

Article 10. Report on the monitoring of foreign-invested projects

1. The investment registration agency shall make a general report on the monitoring of projects under its management and send it to the Ministry of Planning and Investment before February 20 of the year following the reporting year. The report must contain contents prescribed in Article 6 of this Circular.

2. The Ministry of Planning and Investment shall summarize and make an overall assessment of difficulties and problems in the course of implementation of foreign-invested projects nationwide; propose solutions and policies for uniform application nationwide; make corrections to ensure investment according to plan and set objectives and schedule as well as efficiency.

Chapter III

EXAMINATION OF FOREIGN INVESTMENT ACTIVITIES

Section 1

EXAMINATION CONTENTS AND PLAN

Article 11. Contents of examination of the performance of foreign investment state management

1. Promulgation of guiding legal documents under competence; observance of foreign investment law and policies.

2. Elaboration of master plans.

3. Conformity of policies with socio-economic conditions.

4. Compliance with development investment master plans and plans.

5. Observance of the law on investment policy decision; grant, modification and revocation of investment registration certificates by investment registration certificate-granting agency in accordance with the investment law.

6. Provision of incentives and support for investment projects.

7. Compensation, ground clearance, and land recovery and allocation.

8. Performance of investment monitoring, examination and evaluation and investment support responsibilities after the grant of investment policies or investment registration certificates.

9. Performance of the focal-point agencies’ function of summarizing reports on investment project implementation under regulations.

10. Settlement of investors’ problems and complaints.

Article 12. Contents of examination of foreign-invested economic organizations and projects

1. Progress of charter capital and investment capital contribution; legal capital contribution (for business lines requiring legal capital); actual investment capital compared with registered investment capital.

2. Project implementation progress, achievement of projects’ investment objectives; technology transfer under the projects’ commitments (technology contents, efficiency of technology transfer, installation of machinery, equipment and technological lines of investment projects); implementation of commitments and satisfaction of investment conditions and investment incentive and support enjoyment conditions by investors after the projects commence operation.

3. Fulfillment of financial obligations toward the state (tax, charges, fees, land and water surface rental, etc.).

4. Observance of labor law; collective labor agreements, formulation of wage scales and wage tables; registration of internal working regulations with competent agencies; observance of regimes and policies on labor contracts, wage, working time, rest time, social insurance and other insurances such as health insurance, unemployment insurance and occupational accident insurance for laborers; observance of Vietnam’s law on the management of foreign experts and employees who work in Vietnam; observance of regulations on entry, exist and residence for domestic and foreign employees.

5. Observance of the law on foreign exchange management.

6. Observance of the laws on land, land rental and use, change of land use purpose, mineral resources, and environmental protection.

7. Financial status of foreign-invested economic organizations:

a/ Value of assets contributed as capital by parties (value of land use rights, value of machinery and equipment, intellectual property rights, etc.);

b/ Use of machinery and equipment imported free of duty to create fixed assets for proper purposes;

c/ Examination of the results of valuation of enterprises and shares before being listed on the stock exchange in special cases showing signs of fraud;

d/ Transactions with parent companies overseas or associated companies;

e/ Performance of loans (bank loans, issuance of corporate bonds, etc.);

f/ Setting up and use of provisional funds, fixed asset depreciation, accounting of exchange rate differences;

g/ Maximum and minimum capital contribution rates of parties in BT projects and those accompanying BT projects; capitalization of development costs in BOT projects;

h/ Share of profit from state-contributed capital in foreign-invested economic organizations or projects;

i/ Preservation of capital contributed by state-invested economic organizations and projects (including investments outside enterprises and partners’ contribution of joint venture or cooperation capital to economic organizations).

8. Other contents relating to the implementation of investment projects, including:

a/ Observance of the laws on construction, management of project construction quality, fire prevention and fighting;

b/ Observance of regulations on investment supervision and evaluation and the prescribed reporting and statistical regime;

c/ Other contents related to investment projects;

d/ Compliance with remedies to identified problems.

9. For projects that are granted investment registration certificates, in addition to the contents prescribed from Clauses 1 thru 8 of this Article, examination contents must include the implementation of contents stated in the investment policy decision, investment registration certificate, enterprise registration certificate.

10. Depending on examination purposes and requirements and nature and characteristics of foreign-invested projects, examination contents may include all or some of the contents prescribed in this Article.

Article 13. Forms of examination

1. Periodical examination

Periodical examination shall be conducted based on annual examination plans approved by competent agencies prescribed in Article 5 of this Circular.

2. Irregular examination

Irregular examination shall be conducted on a case-by-case basis according to management requirements and practical situation or when requested or reported by agencies, organizations and individuals on problems during the implementation of investment activities or the organization of the implementation of foreign investment laws and policies.

3. Specialized examination

Specialized examination shall be conducted at the request of specialized management agencies so as to evaluate the observance of laws concerning the field of management under their competence.

Article 14. Methods of examination

1. Depending on contents and practical situation, competent agencies shall conduct examination by the following methods:

a/ Via the national foreign investment information system;

b/ Through written reports;

c/ Reviewing;

d/ Meetings;

dd/ Working with agencies and units subject to examination;

e/ Organizing examination and working teams.

2. Based on specific tasks, an examination may use one or several of the above methods to achieve the highest effectiveness.

Article 15. Elaboration, adjustment and notification of periodic examination plans

1. Periodic examination shall be planned. An examination plan may be made separately or incorporated into the working program of a competent agency specified in Article 5 of this Circular. When necessary, the unit assigned to take charge of examination may propose the head of the competent agency to adjust the examination plan.

2. The unit assigned to take charge of examination shall make an examination plan which must clearly identify the examination time, location, subjects, forms and contents, units collaborating in the examination, etc.

An examination plan for the subsequent year for projects specified at Point c, Clauses 2, 3, and 4 of Article 5 of this Circular shall be sent to the examination plan-summarizing agency specified in Clause 3 of this Article before November 30 every year.

3. The Ministry of Planning and Investment (the Foreign Investment Department) shall summarize annual examination plans for foreign-invested economic organizations and projects of ministries and sectors and provincial-level People’s Committee nationwide. Any coincidence of examination plans shall be notified by the Ministry of Planning and Investment to agencies having these examination plans for adjusting such plans.

4. The provincial-level Planning and Investment Department shall summarize annual examination plans in its province or centrally run city.

5. Examination plans shall be published on the websites of summarizing agencies and agencies in charge of examination and on the national portal on foreign investment.

Section 2

ORGANIZATION OF EXAMINATION

Article 16. Examination via the national foreign investment information system

1. Examination via the national foreign investment information system shall be conducted regularly, periodically, and irregularly upon request.

2. Examination contents include:

a/ Contents stated in the investment registration certificate of the investment registration agency;

b/ Implementation of the investment process and procedures on the system of the investment registration agency;

c/ Online reporting regime implemented by economic organizations that carry out investment projects.

Article 17. Examination through reports

1. Examination through reports shall be conducted periodically or irregularly at the request of the person competent to conduct examination or of the agency assigned to conduct examination.

2. Reporting contents and the deadline for sending reports must satisfy the requirements of the person competent to conduct examination or of the agency assigned to conduct examination.

3. The agency competent to conduct examination or the agency assigned to conduct examination shall consider reports, process information, require information verification, and report on examination results.

4. The time limit for an examined agency to prepare its report is 7 working days after receiving a request from the person competent to conduct examination or the agency assigned to conduct examination. In special cases, the time for an examined agency to prepare its report shall be decided by the person competent to conduct examination.

Article 18. Examination through review or meetings

1. Examination through review or meetings shall be decided by the person competent to conduct examination.

2. The examined agency or unit shall report at a meeting or send its review report at the request of the agency competent to conduct examination.

Article 19. Examination through working with examined agencies and units

1. If wishing to work directly with the examined agency or organization, the agency competent to conduct examination or the agency assigned to conduct examination shall invite representatives of the examined agency or unit to work at its head office or sent its representatives to work at the examined agency or unit.

2. The person competent to conduct examination and the agency assigned to conduct examination may consult experts on specialized issues relating to examination contents, but must be answerable to his/her/its report on examination results.

Article 20. Organization of examination teams

1. Bases for organizing an examination team

Examination through organizing an examination team shall be conducted periodically or irregularly upon request by the agency competent to conduct examination. Based on the practical situation, the competent agency shall coordinate with relevant agencies in conducting an inter-sectoral examination or a specialized examination of investment activities. Based on the approved examination plan, an inter-sectoral examination team shall be formed for a project subject to two or more specialized examinations in a year.

2. Forming an examination team

a/ Examination through forming an examination team shall be included in the examination plan of the state administrative agency and notified to relevant specialized state management agency to arrange appropriate members for an inter-sectoral examination team, except for irregular examinations. An examination team shall be formed based on the decision of the agency competent to conduct examination or of the agency assigned to conduct examination;

b/ Based on the examination plan already approved by the agency competent to conduct examination or on the practical management requirement, the unit assigned with the prime responsibility shall draft an examination outline and submit it to the head of the agency competent to conduct examination for issuing a decision on forming an examination team. Such decision must clearly state the name of the examined subject, members of the examination team (head, deputy head and members), scope, form, contents and duration of examination and responsibilities of the examination team, examined unit and related units;

c/ Based on the practical situation, the head of the examination team shall submit a detailed examination plan to the head of the competent agency or the head of the authorized unit for approval, which must state:

- Examination purpose and requirements;

- Examination contents;

- Examination time and location;

- Members of the examination team;

- Assigned tasks of the inspection team’s members;

- The inspection team’s working program;

- Estimated budget for the inspection team.

d/ Based on the decision to form the examination team and the detailed examination plan already approved, the unit in charge of examination shall send to the to be-examined agency or unit and related agencies (if any) a written notice on the examination (time, location and contents of examination, and documents to be prepared for examination).

The form of the report to be prepared to serve the examination is provided in Appendix No. 2 to this Circular for reference by units in charge of examination. Depending on the purpose and requirements of each examination as well as the nature, characteristics and business lines of the foreign-invested project to be examined, the form to be sent to the agency or unit to be examined may have inappropriate contents trimmed or other contents added as necessary for the examination.

The starting time of an examination shall be decided by the head of the examination team, provided that it must take place not earlier than 5 working days after the date the to-be-examined agency or unit receives a written notice on the examination or than 7 working days after the date of issuance of the decision to form the examination team.

In case of extraordinary examination, the examination team shall notify the time and contents of examination to the agency to be examined at least 1 working day before the date of examination. When necessary, the head of the examination team may fix the time of extraordinary examination.

3. Examination period

The operation period of an examination team shall be decided by the person who has issued the decision to form the team but must not exceed 20 working days from the starting date of examination. For a complicated examination involving different agencies and taking place on a large geographical area, it may be extended to 30 working days at most from its starting date. The examination period at an economic organization or a project must not exceed 3 working days, or may be extended to 5 working days at most in case of complicated matters.

4. Organizing an examination

a/ After sending a notice to the to-be-examined unit, the head of the examination team shall organize the examination according to the detailed examination plan;

b/ The examination team shall collect, study, analyze and assess information and documents relating to examination contents; check and compare information and documents (if necessary); and inspect implementation results before making a report on examination results;

c/ The examination team shall make a written record of examination which shall be completed by the date the examination concludes at the examined agency or unit. This record must bear the signatures of the head of the examination team or the authorized or assigned members (in case the examination involves different maters and sectors) and of a competent representative of the examined unit, and shall be used as a basis for making a report on examination results and handling examination results later;

d/ Upon concluding the examination at the examined unit, the head of the examination team shall notify such in writing to the competent representative of this unit and return the documents and equipment used during the examination.

Article 21. Funds

Funds for examination work of state management agencies shall be included in annually allocated state budget funds in accordance with Articles 52, 53 and 54 of the Government’s Decree No. 84/2015/ND-CP of September 30, 2015, on investment monitoring and evaluation, and regulations on financial management.

Section 3

REPORTING ON EXAMINATION RESULTS, RESPONSIBILITIES FOR EXAMINATION, AND HANDLING OF EXAMINATION RESULTS

Article 22. Reporting on examination results

1. Within 10 working days after concluding an examination, the head of the examination team or the unit in charge of examination shall make a report on examination results.

2. Before being submitted to a competent authority for decision, the draft report on examination results shall be sent to the agencies engaged in the examination (in case of inter-sectoral examination) or members of the examination team (in case such team is formed) for opinion. The consulted agencies or members shall give written replies within 5 working days after receiving the draft report. Past this time limit, if giving no reply, the consulted agencies or members shall be regarded as agreeing with the contents of the draft report.

3. A report on examination results must have the following contents:

a/ Grounds for examination;

b/ Form of examination;

c/ Time and venue of examination;

d/ Participants in the examination;

dd/ Name of the examined unit;

e/ Contents of examination;

g/ Strengths and weaknesses of the examined agency or unit; causes of weaknesses;

h/ Opinions of the agencies engaged in the examination or members of the examination team;

i/ Proposals of the examined agency or unit;

k/ Conclusions on the handling of problems identified during the examination according to competence, or proposal for a competent authority to handle these problems, stating the accepted opinions of the agencies engaged in the examination or members of the examination team or of the examined unit; grounds for acceptance of these opinions; and proposals on the ways of handling remaining problems;

l/ Other matters (if any).

4. An official report on examination results shall be sent to the agency that has issued the examination decision for consideration and handling, and to the Ministry of Planning and Investment (the Foreign Investment Agency) for summarization.

5. Depending on the characteristics and reality of an examination, a report on examination results may be disclosed in one or several of the following forms:

a/ At a meeting with the participation of the person who has issued the examination decision, the examination team, the examined agency or unit, and related agencies, organizations and individuals;

b/ In the mass media;

c/ On the websites of related state management agencies;

d/ Public display at the head office of the examined agency or unit;

dd/ Provision of information at the request of related agencies and organizations.

Article 23. Rights, obligations and responsibilities of agencies and units involved in examination work

1. Rights, obligations and responsibilities of examination agencies and units:

a/ To notify to-be-examined agencies of the time and contents of examination and send reports on examination results to the examined agencies; to report on examination results to competent agencies and propose handling measures (reminding and rectification; administrative sanctioning; suspension of operation of foreign-invested projects; revocation or request for revocation of investment registration certificates, etc.);

b/ To ask competent local specialized state management agencies to coordinate in and support the examination;

c/ To handle according to their competence or propose competent agencies to promptly handle agencies, organizations or individuals that fail to implement or improperly implement policies and laws on investment and relevant regulations;

d/ If detecting inappropriate or infeasible policies or regulations, to handle them according to their competence or promptly report them to competent state agencies for consideration and handling;

dd/ To commend according to their competence or propose competent agencies to timely commend agencies and organizations that have well implemented policies and laws on investment and relevant regulations.

2. Rights, obligations and responsibilities of examined agencies and units:

a/ To coordinate with and create conditions for examination agencies during the examination; to assign competent persons and related persons to work with examination teams;

b/ To strictly implement the information and reporting regime at the request of examination agencies;

c/ To provide truthful reports, information and documents and take responsibility before law for their contents;

d/ To observe decisions of examination agencies;

dd/ To lodge petitions and give explanations concerning conclusions of examination agencies or competent persons;

e/ To take responsibility for their failure to implement, or improper implementation of, policies and laws on investment and relevant regulations.

Article 24. Handling of examination results

1. Competent agencies, organizations or persons shall handle examination results upon receiving reports on examination results, or report cases falling beyond their competence to competent authorities for consideration and decision.

The time limit for consideration and handling of examination results is 15 working days from the date of receipt of reports on examination results.

2. Agencies, organizations or individuals that show delay or obstruct agencies during the examination and the handling of examination results shall take responsibility before law.

3. The handling of examination results must strictly comply with law.

Chapter IV

EVALUATION OF FOREIGN INVESTMENT

Article 25. Responsibility for organizing evaluation of foreign-invested projects

1. Investors and economic organizations that implement foreign-invested projects requiring investment policy decision shall have these projects evaluated upon their completion.

2. Investment registration agencies and state management agencies in charge of investment shall organize extraordinary evaluation and impact assessment when necessary.

Article 26. Contents of evaluation of a project upon completion

1. Progress of contribution of charter capital by the economic organization, or legal capital (for business lines required to have legal capital), or investment capital, of the project; raising of capital and use of raised capital under law; and payment during the project implementation.

2. Project implementation progress against the schedule stated in the written approval of investment policy or in the investment registration certificate, and against the schedule stated in the submitted dossier of request for grant or modification of the investment registration certificate.

3. Use of land and employment of workers under the project; observance of the law on environmental protection.

4. Fulfillment of financial obligations toward the State (payment of taxes, charges, fees, land rental, water surface rent, etc.).

5. Achievement of set objectives, use of mobilized resources, implementation progress, and project benefits.

6. Proposals and recommendations.

Article 27. Contents of impact assessment

1. Assessment of the implementation of investment objectives (observance of master plans, the written approval of investment policy or in the investment registration certificate and relevant specialized laws).

2. Assessment of the level of completion (based on the contents and schedule already registered and those stated in the written approval of  investment policy or in the investment registration certificate).

3. Assessment of investment efficiency (employment of workers, use of land; remittances into the state budget; investment rate; transfer of science, techniques and technologies and management and business experience and skills) on the basis of comparison of expenses and outcomes achieved during the project operation.

4. Assessment of the production technology level, and of transfer of science, techniques and technologies and management and business experience and skills.

5. Assessment of the implementation of the prescribed regime of reporting to state management agencies.

6. Proposals and recommendations.

Article 28. Contents of extraordinary evaluation

1. Compatibility of project implementation results with investment objectives.

2. Level of completion of work against that stated in the investment policy decision or investment registration certificate (if any).

3. Identification of arising issues (if any) and causes.

4. Impacts of arising issues on the project implementation and fulfillment of the project objectives.

5. Proposals and recommendations.

Chapter V

ORGANIZATION OF IMPLEMENTATION

Article 29. Effect

1. This Circular takes effect 45 days from the date of its signing.

2. The Ministry of Planning and Investment’s Decision No. 1190/QD-BKH of September 19, 2008, promulgating the Regulation on examination of foreign investment activities carried out by the Ministry of Planning and Investment, ceases to be effective on the date this Circular takes effect.

Article 30. Organization of implementation

1. Ministries, sectors, provincial-level People’s Committees and investment registration agencies shall monitor, examine and evaluate foreign investment activities under their respective management in accordance with this Circular.

2. The Ministry of Planning and Investment shall coordinate with other ministries, sectors, provincial-level People’s Committees and investment registration agencies in guiding the implementation of this Circular.

3. Any problems arising in the course of implementation of this Circular should be reported to the Ministry of Planning and Investment for timely consideration and settlement.-

Minister of Planning and Investment
NGUYEN CHI DUNG