Decree No. 194/2013/ND-CP dated November 21, 2013 of the Government on re-registration and transformation of foreign-invested enterprises and renewal of investment licenses of projects invested under business cooperation contracts

DECREE

On re-registration and transformation of foreign-invested enterprises and renewal of investment licenses of projects invested under business cooperation contracts[1]

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the November 29, 2005 Investment Law;

Pursuant to the November 29, 2005 Enterprise Law;

Pursuant to June 20, 2013 Law No. 37/2013/QH13 Amending and Supplementing a Number of Articles of the Enterprise Law;

At the proposal of the Minister of Planning and Investment,

The Government promulgates the Decree on re-registration and transformation of foreign-invested enterprises and renewal of investment licenses of projects invested under business cooperation contracts.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree provides:

1. The re-registration and transformation of foreign-invested enterprises which obtained investment licenses before July 1, 2006.

2. The renewal of investment licenses or business licenses of projects invested under business cooperation contracts which were granted before July 1, 2006.

3. The rights and obligations of foreign-invested enterprises obtaining investment licenses before July 1, 2006, which have been re-registered or not been re-registered, and of parties to business cooperation contracts for which investment licenses or business licenses have not been renewed under the Enterprise Law and the Investment Law.

4. The modification of investment licenses of foreign-invested enterprises which obtained investment licenses before July 1, 2006, and have not been re-registered, or of business cooperation contracts for which investment licenses or business licenses have not been renewed.

5. The re-registration of foreign-invested enterprises established and operating under specialized laws must comply with those laws.

Article 2. Subjects of application

1. Foreign-invested enterprises which obtained investment licenses before July 1, 2006, including:

a/ Joint-venture enterprises;

b/ Enterprises with 100% foreign capital;

c/ Foreign-invested joint-stock companies established under the Government’s Decree No. 38/2003/ND-CP of April 15, 2003, on transformation of a number of foreign-invested enterprises into joint-stock companies.

2. Parties to business cooperation contracts which obtained investment licenses or business licenses before July 1, 2006.

3. State management agencies responsible for the re-registration and registration for transformation of foreign-invested enterprises and renewal of investment licenses or business licenses.

Article 3. Interpretation of terms

1. “Re-registration” means registration by an enterprise specified in Article 2 of this Decree to operate under the Enterprise Law.

2. “Enterprise transformation” means change of form of enterprise by an enterprise specified in Article 2 of this Decree under the Enterprise Law.

3. “Renewal of an investment license” means change of the investment license or business license granted before July 1, 2006, into an investment certificate by parties to a business cooperation contract.

4. “Re-registered enterprise” means an enterprise specified in Article 2 of this Decree which has made re-registration and obtained an investment certificate.

5. “Transformed enterprise” means an enterprise specified in Article 2 of this Decree which has changed its form under the Enterprise Law.

6. “Enterprise which has not been re-registered” means an enterprise specified in Article 2 of this Decree which has not made re-registration under the Enterprise Law and this Decree.

Article 4. Rights to decide on re-registration and transformation of enterprises and renewal of investment licenses

1. A foreign-invested enterprise obtaining an investment license before July 1, 2006, may decide on the time of its re-registration or transformation and organize and manage its operations in accordance with the laws on enterprises and investment and this Decree.

A foreign-invested enterprise established before July 1, 2006, whose operation duration expired after July 1, 2006, under its investment license and which has not carried out enterprise dissolution procedures and requests permission for continued operation shall make re-registration before February 1, 2014.

2. The parties to a business cooperation contract may register to renew their investment license in order to obtain an investment certificate to operate under the Investment Law.

Article 5. Re-registration and transformation of enterprises with commitment to transfer assets without indemnification

1. A foreign-invested enterprise whose foreign investor has committed or agreed to transfer to the State or the Government of Vietnam or the Vietnamese party the invested assets without indemnification at the end of the operation duration and such transfer under that commitment or agreement is stated in the investment license may be re-registered or transformed when meeting the following conditions:

a/ Not changing the commitment to transfer assets without indemnification. Taking over and continuing to implement the investment project related to the commitment to transfer assets without indemnification;

b/ Not extending the implementation duration of the investment project.

2. In case of changing contents of the commitment to transfer assets without indemnification under the investment license, the re-registration or transformation of enterprises under this Decree must be approved by the Prime Minister.

Article 6. Re-registration of foreign-invested enterprises obtaining investment licenses before July 1, 2006, whose operation duration expired after July 1, 2006, and which have not been dissolved and request permission for continued operation

1. A foreign-invested enterprise whose operation duration expired after July 1, 2006, under its investment license and which has not been dissolved and requests permission for continued operation may be re-registered when meeting the following conditions:

a/ Its business line is not a prohibited one. If its business line is a conditional one, the enterprise satisfies the conditions prescribed by law at the time of re-registration;

b/ The project conforms with the planning on urban infrastructure, land use, construction, and exploration, exploitation and processing of minerals and other natural resources;

c/ It commits to taking responsibility for the obligations and transactions made from the time of expiration of the operation duration to the time of re-registration;

d/ It commits to performing all financial obligations toward the State;

dd/ The enterprise has equity; if it no longer has any equity, it commits to increasing its equity at least equal to the charter capital within 3 years after re-registration.

2. Application of investment incentives and obligations to foreign-invested enterprises whose operation duration expired after July 1, 2006, and which have not been dissolved and request re-registration to continue operation

a/ To apply legal provisions corresponding to each period from the date of expiration of the operation duration stated in the investment license to the time of re-registration; and,

b/ From the time of re-registration, to apply legal provisions effective at the time of re-registration.

3. The granted investment certificate is valid from the date of expiration of the operation duration under the investment license.

4. Enterprises shall make re-registration before February 1, 2014. Past this deadline, enterprises that fail to make re-registration shall carry out procedures for dissolution and operation termination in accordance with law.

Chapter II

RE-REGISTRATION AND TRANSFORMATION OF FOREIGN-INVESTED ENTERPRISES

Article 7. Forms of re-registration of enterprises

1. An enterprise with 100% foreign capital of one investor shall be re-registered as a single-member limited liability company.

2. A joint-venture enterprise or an enterprise with 100% foreign capital of two or more investors shall be re-registered as a limited liability company with two or more members.

3. A joint-stock company shall be re-registered as a joint-stock company.

Article 8. Dossiers of re-registration of enterprises

1. A dossier of re-registration of an enterprise comprises:

a/ An application for re-registration signed by the at-law representative of the enterprise together with a list of members of the limited liability company with two or more members or a list of shareholders of the joint stock company of the re-registered enterprise;

b/ Valid copies of the investment license, modified investment licenses and certificates of modification of the investment license (if any);

c/ The modified draft charter of the enterprise in accordance with the enterprise law;

d/ The minutes of the Board of Directors meeting, for joint-venture enterprises; the minutes of the Board of Directors meeting or the written agreement of foreign investors (for enterprises with many foreign investors) or of the foreign investor, for enterprises with 100% foreign capital; the minutes of the General Meeting of Shareholders, for joint-stock companies, approving the enterprise re-registration and the (modified) charter of the enterprise;

dd/ The decision of the owner or owners of the enterprise or the Board of Directors of the enterprise with 100% foreign capital or decision of the Board of Directors of the joint-venture enterprise or decision of the General Meeting of Shareholders of the foreign-invested joint-stock company on the re-registration of the enterprise and approval of the (modified) charter of the enterprise;

e/ Certified papers of individuals and legal persons being members of the re-registered enterprise and the at-law representative of the re-registered enterprise;

g/ The financial statements of 2 consecutive years preceding the time of re-registration;

h/ The documents related to the modified contents as prescribed by law.

2. In addition to the documents specified in Clause 1 of this Article, an enterprise stated in Article 6 of this Decree shall submit the following documents:

a/ The written commitment to taking responsibility for the obligations and transactions made from the time of expiration of the operation duration to the time of re-registration, and the written commitment to performing all financial obligations toward the State;

b/ The production and business report of the year preceding the year of expiration of the investment license to the time of re-registration (made according to Form No. 04-CS/SXKD) under the Planning and Investment Ministry’s Circular No. 04/2011/TT-BKHDT of March 31, 2011, issuing forms of statistical reports applicable to state enterprises and foreign direct investment enterprises and projects.

3. When making re-registration, an enterprise that requests modification of business registration contents and investment project contents shall, in addition to the documents specified in Clauses 1 and 2 of this Article, submit documents corresponding to modified contents in accordance with the laws on investment and enterprises.

4. The re-registration dossier shall be made in 3 sets, including at least one original set, or in 10 sets, including least one original set, if there are contents to be consulted by ministries and sectors or to be submitted to the Prime Minister.

Article 9. Order and procedures for re-registration of enterprises

1. An enterprise applying for re-registration shall submit a dossier prescribed in this Decree to the investment certificate-granting agency.

2. In case opinions of ministries and sectors are not required, within 15 working days after receiving a complete and valid dossier, the investment certificate-granting agency shall consider and grant an investment certificate.

3. In case opinions of related ministries and sectors are required, the time for consideration and grant of an investment certificate must not exceed 45 working days after receiving a valid dossier. Consulted agencies shall give their opinions in writing within 15 working days after receiving a dossier.

4. In case of refusing to grant a certificate, or requesting modification or supplementation of the dossier, the investment certificate-granting agency shall issue a written notice clearly stating the reason to the enterprise.

5. The investment certificate-granting agency shall write in the investment certificate the rights, obligations, investment incentives and commitments or conditions (if any) of the investment license and modified investment licenses or certificates of modification of the investment license (if any).

6. The re-registered enterprise shall return the original investment license, modified investment licenses and certificates of modification of the granted investment license (if any) to the investment certificate-granting agency when receiving the investment certificate.

Article 10. Rights and obligations of re-registered enterprises

1. A re-registered enterprise shall take over all lawful rights and interests, and be responsible for unpaid debts, labor contracts and other obligations of the pre-registered enterprise.

2. A re-registered enterprise has the following rights:

a/ To operate in accordance with the investment certificate;

b/ To have all investment incentives recognized and further enjoy them within its operation duration under the conditions specified in the investment licenses;

c/ To retain its registered name, seal, account and tax identification number unless relevant information has changed as a result of re-registration or must be changed in accordance with the laws on enterprises and investment and other relevant regulations or the investor wishes to change in accordance with law;

d/ Other rights as prescribed by law.

3. A re-registered enterprise has the following obligations:

a/ To continue implementing the commitments or conditions (if any) specified in the investment license.

b/ To take responsibility for the truthfulness and accuracy of the re-registration dossier’s contents;

c/ To comply with the laws on enterprises and investment and relevant laws.

Article 11. Dossiers of transformation of enterprises

1. In case of transformation and re-registration of an enterprise at the same time, a dossier comprises:

a/ An application for re-registration and transformation of the enterprise signed by the at-law representative of the enterprise together with a list of members of the limited liability company with two or more members or of the partnership company or a list of founding shareholders of the transformed enterprise;

b/ The draft charter of the enterprise modified in accordance with the enterprise law;

c/ The decision on re-registration and transformation of the enterprise issued by the owner or owners or the Board of Directors of the enterprise with 100% foreign capital, the Board of Directors of the joint-venture enterprise, or the General Meeting of Shareholders of the joint-stock company.

This decision must contain the following principal details: names and addresses of the head offices of the pre-transformed enterprise and transformed enterprise; time limit and conditions for the transfer of assets, contributed capital amounts, shares or bonds of the foreign-invested enterprise to the transformed enterprise; employment plan; and time limit for transformation;

d/ Valid copies of the investment license and modified licenses or certificates of modification of the investment license (if any);

dd/ The financial statements of 2 consecutive years preceding the time of transformation;

e/ The documents related to modified contents as required by relevant laws.

2. In case new members or shareholders are added, in addition to the above documents, a dossier of transformation and re-registration of the enterprise must comprise:

a/ For a new member being an individual: a copy of the identity card, passport or other lawful personal identification paper under current regulations;

b/ For a new member being a legal person: a copy of the establishment decision, business registration certificate or another equivalent document of the legal person; for an authorized representative, the authorization decision (which covers the contents, scope and duration of authorization), identity card, passport or other lawful personal identification paper of this person.

For a new member being a foreign legal person, copies of the business registration certificate and charter or equivalent documents must be consularly legalized under current regulations within 3 months before the date of submission of the dossier.

3. In case of transformation of a re-registered enterprise, the dossier complies with relevant provisions of the Enterprise Law, the Investment Law and their guiding documents.

4. A dossier of enterprise transformation shall be made in 5 sets, including at least 1 original set, or 10 sets, including at least 1 original set, if there are contents to be submitted to the Prime Minister or to be consulted by ministries and sectors.

Article 12. Order and procedures for transformation of enterprises

1. In case of transformation together with re-registration of an enterprise, the enterprise shall submit a dossier under Clause 1, Article 11 of this Decree to the investment certificate-granting agency.

2. The decision on re-registration and transformation of an enterprise shall be sent to all creditors and notified to employees of the enterprise within 15 days after this decision is approved.

3. In case opinions of ministries and sectors are not required, within 15 working days after receiving a complete and valid dossier, the investment certificate-granting agency shall consider and grant an investment certificate.

4. In case opinions of related ministries and sectors are required, the time for consideration and grant of an investment certificate must not exceed 45 working days after receiving a valid dossier. Consulted agencies shall give their opinions in writing within 15 working days after receiving a dossier.

5. In case of refusing to grant an investment certificate or requesting modification of a dossier, the investment certificate-granting agency shall issue a written notice clearly stating the reason to the enterprise.

6. The investment certificate-granting agency shall write in the investment certificate the rights, obligations, investment incentives and commitments or conditions (if any) of the investment license and modified investment licenses or certificates of modification of investment licenses (if any).

7. The enterprise shall return the original investment license, modified investment licenses and certificates of modification of the granted investment license (if any) to the investment certificate-granting agency upon receiving the investment certificate.

Article 13. Rights and obligations of transformed enterprises

1. An enterprise may make transformation and re-registration at the same time.

2. A transformed enterprise shall take over all lawful rights and interests, and be liable for unpaid debts, labor contracts and other obligations of the pre-transformed enterprise.

3. A transformed enterprise is entitled to the investment incentives and shall perform the commitments and conditions specified in the investment license for licensed investment projects.

4. A transformed enterprise must satisfy the conditions prescribed by relevant laws for each case of transformation.

5. An enterprise shall take responsibility for the truthfulness and accuracy of the contents of the enterprise transformation dossier.

6. A transformed enterprise has other obligations and rights as prescribed by law.

Chapter III

REGISTRATION FOR RENEWAL OF INVESTMENT LICENSES FOR BUSINESS COOPERATION CONTRACTS

Article 14. Dossiers of registration for renewal of investment licenses for business cooperation contracts

1. A dossier of registration for renewal of an investment license comprises:

a/ An application for renewal of an investment license, signed by the parties to the business cooperation contract;

b/ The modified business cooperation contract (if having modified contents);

c/ Valid copies of the investment license or business license and modified investment licenses or business license (if any).

2. When the parties to a business cooperation contract request modification of the contents related to the investment project and business cooperation contract, the above dossier must also comprise documents related to the contents to be modified as prescribed by law.

3. A dossier for renewal of an investment license shall be made in 3 sets, including at least 1 original set, or in 10 sets, including at least 1 original set, if there are contents to be submitted to the Prime Minister or consulted by ministries and sectors.

Article 15. Order and procedures for registration for renewal of investment licenses for business cooperation contracts

1. The parties to a business cooperation contract shall submit a dossier under this Decree to the investment certificate-granting agency.

2. Within 7 working days after receiving a complete and valid dossier, the investment certificate-granting agency shall consider and grant an investment certificate.

3. In case opinions of related ministries and sectors are required, the time for consideration and grant of an investment certificate must not exceed 45 working days after receiving a complete and valid dossier. Consulted agencies shall give their opinions in writing within 15 working days after receiving a dossier.

4. If refusing to grant a certificate or requesting modification of the dossier, the investment certificate-granting agency shall issue a written notice clearly stating the reason to the parties to the business cooperation contract.

5. The investment certificate-granting agency shall write in the investment certificate the rights, obligations, investment incentives and commitments or conditions (if any) of the investment license and business license or and modified licenses (if any).

6. The parties to a business cooperation contract shall return the original investment license or business license and modified licenses (if any) to the investment certificate-granting agency upon receiving the investment certificate.

Article 16. Rights and obligations of parties to business cooperation contracts in case of renewal of investment licenses

1. To take over the rights and obligations specified in investment licenses or business licenses and modified licenses (if any) and the signed business cooperation contracts.

2. To take responsibility for the truthfulness and accuracy of contents of dossiers of registration for renewal of investment licenses.

3. To have other rights and obligations under the Investment Law.

Chapter IV

FOREIGN-INVESTED ENTERPRISES WHICH HAVE NOT BEEN RE-REGISTERED AND BUSINESS COOPERATION CONTRACTS FOR WHICH INVESTMENT CERTIFICATES HAVE NOT BEEN RENEWED

Article 17. Rights and obligations of enterprises which have not been re-registered

1. To continue to be organized and operate under the granted investment license and the enterprise charter. For contents not mentioned in the investment license and the enterprise charter, enterprises shall comply with the Enterprise Law, the Investment Law and related laws, specifically as follows:

a/ Enterprises with 100% foreign capital of one investor shall apply relevant regulations for single-member limited liability companies;

b/ Enterprises with 100% foreign capital of two or more investors and joint venture enterprises shall apply relevant regulations for limited liability companies with two or more members;

c/ Joint stock companies provided at Point c, Clause 1, Article 2 of this Decree shall apply relevant regulations for joint stock companies.

2. To request modification of the enterprise charter and investment license, except change of the operation duration or change of business lines which results in change of the operation duration stated in the investment license.

3. To retain its registered name, seal, account and tax identification number unless the investor wishes to change in accordance with law.

4. To implement new investment projects under the investment law. The life of a new investment project conforms wit the operation duration of the enterprise specified in the investment license.

5. To have other rights and obligations under the laws on enterprises and investment and relevant laws.

Article 18. Rights and obligations of parties to business cooperation contracts for which the investment certificate or business license has not been renewed

1. To continue to operate under the investment license or business license and the modified investment license or business license (if any) and the signed business cooperation contract.

2. To observe the investment law and related laws.

3. In the course of operation, to request modification of the investment license or business license.

Article 19. Modification of investment licenses of enterprises which have not been re-registered and modification of investment licenses or business licenses of business cooperation contracts for which investment licenses or business licenses have not been renewed

1. The investment certificate-granting agency shall consider requests for modification of investment licenses of enterprises which have not been re-registered or business licenses of business cooperation contracts for which investment licenses or business licenses have not bee renewed in accordance with law; and approve modification of investment licenses or business licenses in the form of certificates of modification of investment licenses or business licenses. At the request of investors, the investment certificate-granting agency shall grant investment certificates to replace previously granted licenses and write all the contents of those licenses in the investment certificate.

2. Investment conditions and incentives and other conditions of modified contents must comply with legal provisions effective at the time of modification.

3. The enterprise or parties to the business cooperation contract may continue to implement unmodified contents in accordance with the granted investment license or business license.

4. For an enterprise which has not been re-registered, the investment certificate-granting agency may grant written approval without modifying the investment license in the following cases:

a/ The enterprise opens a transaction or representative office, goods store or showroom for product display (other than a production unit) in the province or centrally run city where the enterprise is headquartered;

b/ The enterprise moves its head office within the province or centrally run city, except cases of relocation into or out of an industrial park, economic zone or hi-tech zone.

For an enterprise that wishes to modify the investment license’s contents specified at Points a and b, Clause 4 of this Article, the investment certificate-granting agency shall modify the investment license under regulations.

Article 20. Order and procedures for modification of investment licenses of enterprises which have not been re-registered and modification of investment licenses or business licenses of business cooperation contracts for which investment licenses or business licenses have not been renewed

1. For requesting modification, enterprises which have not been re-registered or parties to business cooperation contracts for which investment licenses or business licenses have not been renewed shall submit a dossier in accordance with the Decree guiding a number of articles of the Investment Law to the investment certificate-granting agency for consideration and modification. Enterprises or parties to business cooperation contracts shall take responsibility for the truthfulness and accuracy of contents of modification dossiers.

2. Dossiers, order and procedures for grant of certificates of modification of investment licenses or business licenses must comply with the Investment Law, the Enterprise Law and their guiding documents.

3. Within 15 working days after receiving a valid dossier, the investment certificate-granting agency shall consider and grant a certificate of modification of the investment license or business license.

4. In case opinions of related ministries and sectors are required, the time for consideration and grant of an investment certificate must not exceed 45 working days after receiving a complete and valid dossier. Consulted agencies shall give their opinions in writing within 15 working days after receiving a dossier.

5. In case of refusal or request for modification of a dossier, the investment certificate-granting agency shall issue a written notice clearly stating the reason to the investor.

Chapter V

IMPLEMENTATION PROVISIONS

Article 21. Implementation provisions

1. This Decree takes effect on January 15, 2014, except the provisions of Clause 2 of this Article.

2. Provisions on re-registration of foreign-invested enterprises obtaining investment licenses before July 1, 2006, whose operation duration expired after July 1, 2006, and which have not been dissolved and request permission for continued operation under Article 6 of this Decree, are applied from January 1, 2014.

3. This Decree replaces the Government’s Decrees No. 101/2006/ND-CP of September 21, 2006, on re-registration, transformation and registration for renewal of investment licenses of foreign-invested enterprises under the Enterprise Law and the Investment Law, and No. 38/2003/ND-CP of April 15, 2003, on equitization of foreign-invested enterprises.

4. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of provincial-level People’s Committees shall implement this Decree.-

On behalf of the Government
Prime Minister
NGUYEN TAN DUNG