Transfer of Investment Projects in Vietnam

  Under the current Law on Investment, investors are entitled to transfer part or all of the project to another investor when satisfied the specific conditions and conducting to procedure of project adjustment under the regulation of law.

The conditions of project transfer

-The project is not terminated in the cases as prescribed in Clause 1 Article 48 of Law on investment;

-Investment conditions applied to foreign investors are satisfied -in case the foreign investor receives a project of investment in conditional business lines;

-Regulations of law on law, real estate trading is complied with if the project transfer is associated with transfer of land;

-Conditions in the Certificate of investment registration or relevant regulations of law are complied with.

Preparation of dossier

-A written request for permission for project adjustments;

-A report on the project’s progress up to the time of transfer;

-The project transfer contractor an other document with equivalent legal value;

-Copies of the ID card or passport (if the investor is an individual) or Certificate of Enterprise Registration or another document with equivalent legal value (if the investor is an organization);

-Copies of the Investment Registration Certificate or decision on investment guidelines (if any);

-Copies of the BCC contract (for BCC projects);

-Copies of one of the following documents of the transferee: financial statements of the last 02 years; commitment to provide financial support by the parent company, commitment to provide financial support by a financial institution, the guarantee of transferee’s financial capacity, documents describing the transferee’s financial capacity;

Order and procedure

-Investors submit the dossier at Department of Planning and Investment (or Management of Economic Zone or High-tech Zone);

-Within a period of 10 working days from the date of receipt the complete and valid dossier for an investment project operating under an investment license and not subject to decision of investment policy (or 28 working days from the date of receipt the complete and valid dossier for an investment project which is subject to investment decision of the provincial People’s Committee; 47 working days from the date of receipt the complete and valid dossier for the investment project subject to the decision of the Prime Minister), the competent authorities consider and decide to adjust the investment registration certificate to the investor transferring the project.

Before transferring an investment project, investors need to evaluate the legal situation, apart from the financial, personnel, and other key issues of the project, which are subject of the transfer. Therefore, to ensure effective transfer, investors often engage law firms with highly qualified lawyers in Vietnam to conduct M&A legal due diligence related to the legal documentation of the owner, capital contribution of the shareholder or member, tangible assets (land use rights, plant and machinery, equipment, etc.) and invisible assets (including industrial property rights), licenses, contracts or transactions of great value, taxes and other legal risks such as litigation or disputes which could significantly impact the project..

The transfer of an investment project is an administrative procedure with a state agencies that is only smooth when the parties reached agreements. In fact, the transfer of the investment project’s timeline depends on the appraisal and evaluation process of the parties involved in the project.We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

Nguồn: https://antlawyers.vn/legal-service/transfer-of-investment-projects-in-vietnam.html

Foreign Investment

 Our foreign investment practice at ANT Lawyers helps clients with the following:

Transactional structuring license: Advising on the possibility for foreign investors to obtain an investment in Vietnam and the selection of an appropriate investment vehicle in Vietnam such as a business co-operation contract, a joint venture company or to set up a company in Vietnam as a wholly foreign owned company.

Licensing requirements: drafting and negotiating all documents required for obtaining an investment license for a foreign investment project, following up Vietnamese authorities for obtaining all the investment license and assisting to complete post-licensing procedures.

Regulatory issues: advising on regulatory issues in relation to the operation of foreign invested projects in Vietnam including advertising and promotion of their products.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

Please contact us for inquiries through email ant@antlawyers.vn or call our partner directly at + 84 912 817 823.

Let ANT Lawyers help your business in Vietnam.

Nguồn: https://antlawyers.vn/area-of-expertise/foreign-investment

What Foreign Investors Should Know When Setting up company in Vietnam in 2022?

 In the period of global economic integration, especially Post-Covid-19 era, Vietnam – a developing country is considered one of the countries with potential markets that foreign investors choose to establish the business here taking advantage of the government policy to promote the economy i.e. “new normal” adaption living with Covid-19, quick opening of border allowing tourists to visit Vietnam since Apr 2022, tax reduction, public investment increase…

Whom can set up business in Vietnam?

First, the objects allowed to establish and manage enterprises in Vietnam are all organizations and individuals who are not in the following cases: (i) Minors; people with limited legal capacity; incapacitated people; people having difficulties controlling their behaviors; organizations that are not juridical persons; (ii) People who are facing criminal prosecution, kept in temporary detention, serving an imprisonment sentence, serving an administrative penalty in a correctional institution or rehabilitation center, has limited legal capacity or is incapacitated, is not able to control his/her own behaviors, is banned by the court from holding certain positions or doing certain works; other cases prescribed by the Law on Bankruptcy and the Anti-corruption Law. At the same time, individuals with foreign nationality implementing business investment activities in Vietnam are considered foreign investors. The implementation of investment forms; the scope of operation as well as related procedures must meet the conditions under the Investment Law; related legal documents; other conditions of international treaties that Vietnam is a member.

How to invest and set up business in Vietnam?

Second, foreigners, foreign investors must explore legal forms of investment in Vietnam including: (i) Investing in establishing economic organizations; (ii) Invest in capital contribution, share purchase and purchase capital; (iii) Implementing investment project; (iv) Investment in the form of BCC contract; (v) Forms of investment and new economic organizations according to the Government’s regulations. They need to consider projects planning to invest in Vietnam in case of requesting approval of investment policy of 2020 Investment Law. The investment project of foreign investors is required to carry out procedures for granting investment registration certificates. If the case must be proposed to approve the investment policy, they must prepare dossiers and carry out procedures to request approval of investment policies. When completing the procedure, they will be granted a written decision on investment policy and investment registration certificates. If not falling in the case of approval of investment policy, foreign investors conduct procedures for applying for investment registration certificates.

What documents required to set up company in Vietnam?

Third, after being granted a certificate of foreign investment registration, foreign investors shall continue the procedures for enterprise registration. Vietnam laws do not have to limit the type of enterprise to foreign investors, hence investors can choose: One member limited liability Company; Two-member limited liability companies or more; Joint stock company; Partnerships. Each type of business has different advantages and disadvantages, and foreign investors should base on the purpose and investment scale to choose the type of suitable form of investment. In addition, the investment under the conditional business lines need to fully meet the conditions according to the provisions of law. Depending on the type of business, there will be the document requirements that need to register accordingly. And most importantly, foreign investors must prepare necessary conditions and sufficient conditions (validated documents for use in Vietnam, business name, head office address, business line, charter capital, legal representative,…) attached to the understanding and implementation of the order and procedures when they want to establish a certain type of enterprise in accordance with the Enterprise Law 2020.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang.

Nguồn: https://antlawyers.vn/library/what-foreign-investors-should-know-when-setting-up-company-in-vietnam-in-2022.html

What Foreign Investors Should Consider in Making Investment in Conditional Areas?

 In the context of integration and globalization, the number of foreign investors whom wish to make investment and establish business in Vietnam has increased due to the attractiveness of the growing middle class population, availability of skilled resources, and Vietnam openness policies. To register a business in Vietnam, however, foreign investors must meet the requirements of Vietnam and international treaties to which Vietnam is a party.

Firstly, the field in which foreign investors wish to conduct business must not be on the list of industries that have been denied entry to the market for foreign investors or are prohibited from doing so under the Law on Investment.

Secondly, foreign investors may be restricted to the percentage of charter capital ownership in some economic organizations. For example, foreign investors ownership could only be up to 30% of charter capital of a commercial bank in Vietnam. Limiting the amount of charter capital is indirectly restricting the management and control rights of investors. Instead of freely making policies or decisions, foreign investors have to depend on other members of the company, namely domestic investors. The investors are suggested to consult with corporate lawyers in Vietnam or banking and finance lawyers in Vietnam for specific details in the specialized area like banking or finance.

Thirdly, foreign investors must consider the type of firm they want to register. A foreign insurance enterprise, for example, may operate in Vietnam as an insurance limited liability company or as a branch of a foreign non-life insurance enterprise. If the investor registers the establishment of an enterprise that is not under Vietnam law and the international treaties that Vietnam has signed, the application for registration is considered invalid. In addition, each type will also have certain limitations. For example, setting up a joint stock company might not be suitable for all investors. In the governance of a joint stock company, the decision-making process is complicated and time-consuming with different sequences and procedures.

Finally, the Vietnam law also have requirements on the legal status, financial status, and competence of investors in certain professions. To establish a company in Vietnam, foreign investors must meet all the prescribed conditions.

In conclusion, the foreign investors would need to undertake the legal research into the business it wish to register in Vietnam, and make strategic decision considering the legal and business requirements to maximize the benefits Vietnam would bring.

Nguồn: https://antlawyers.vn/corporate-lawyers-in-vietnam/what-foreign-investors-should-consider-in-making-investment-in-conditional-areas.html

What Are the Procedures for Applying the Enterprise Registration Certificate for Foreign Investor in Vietnam?

 According to Viet Nam’s commitments under the framework of the WTO and EVFTA agreement, foreign investors are allowed to establish foreign-invested enterprises to conduct business activities in Vietnam. However, the order and procedures for establishing enterprises for foreign investors must comply with the provisions of Vietnamese law.

Accordingly, this process consists of two main steps: (1) carry out the procedures for applying for the Investment Registration Certificate and (2) carry out the procedures for applying for the Enterprise Registration Certificate. In other words, to be granted the Enterprise Registration Certificate to officially and legally conduct business activities, a foreign investor must first obtain an Investment Registration Certificate.

For investment registration, foreign investors must have an investment project, except in the case of establishing a creative start-up small and medium-sized enterprise and an innovative start-up investment fund under the law on business support small and medium. The industries and trades in the investment project must not be in the industries and trades that prevent the access the market for foreign investors or the industries and trades being banned from doing business under the Law on Investment 2020. After that, investors need to prepare a dossier for issuance of the Investment Registration Certificate to be submitted to the Department of Planning and Investment where the investor implements the investment project.

Dossier for applying for the investment registration certificate includes: an application for issuance of the investment certificate; the Investor’s financial capacity report is prepared and responsible by the Investor; an explanation of the ability to meet the conditions that the investment project must satisfy according to the provisions of law for the project in the field of conditional investment; the economic – technical explanation includes the following main contents: objectives, scale, investment location, investment capital, project implementation progress, land use demand, technological solutions and solutions environmental legislation; draft of the company’s charter with full signatures of the legal representative, members or authorized representatives; members list; documents for verifying the investor’s legal status; documents for verifying financial ability. The investment registration authority repond to the application for the Investment Registration Certificate to the investor within 15 days from the date of receipt of a valid dossier.

After being granted the Investment Registration Certificate, the foreign investor shall carry out the procedures to be granted the Enterprise Registration Certificate. In this step, the legal conditions are not as strict and complicated as the first step, but it also requires investors to prepare a number of papers and documents. Depending on the type of enterprise and the content of registration, the business registration subject needs to submit different types of documents under the requirements of the law. Investors can submit the dossier in person at the Business Registration Office or submit it online via the electronic network. The Business Registration Office shall issue the Enterprise Registration Certificate within 03 working days from the date of receipt of a valid dossier. In case the dossier is invalid or the name of the enterprise requested for registration is not in accordance with regulations, the Business Registration Office must notify in writing the contents that need to be amended, supplemented to the enterprise founder or the enterprise within 03 working days from the date of receipt of the dossier.

It can be remarked that the two-step process creates obstacles for many foreign investors when establishing an enterprise in Vietnam. It has been suggested the legislator to consider shortening the order and reducing the number of documents that need to be submitted, and at the same time, promote the online procedures to save time and human resources. For efficiency in preparing documents, the client could engage a lawyer in Vietnam to assist carrying out procedures of setting up company and applying for investment and business certificate in Vietnam.

Nguồn: https://antlawyers.vn/business/what-are-the-procedures-for-applying-the-enterprise-registration-certificate-for-foreign-investor-in-vietnam.html

Granting Investment Registration Certificate in Vietnam

 As Vietnam integrates further into the global supply chain, foreigners are more and more encouraged to invest in Vietnam in many areas for pursuing profit. The foreign direct investment of the foreigners is required to be registered at Vietnam state authority to protect the rights of the investor. The investors could then set up company and apply for obtain investment certificate in Vietnam

According to the Law on Investment 2014, investment projects of foreign investors; projects of setting up a economic organization in which foreign investors holding 51% of charter capital or more or the majority of the general partners are foreigners in a partnership; projects of BCC contract between domestic investors and foreign investors or between domestic investors and economic organization which foreign investors holding 51% of charter capital or more or the majority of the general partners are foreigners shall need to conduct the procedure of applying investment registration certificate as regulations of law.

Preparation of dossier

-A written request for permission for execution of the investment project;

-A copy of the ID card or passport (if the investor is an individual); a copy of the Certificate of establishment or an equivalent paper that certifies the legal status of the investor (if the investor is an organization).

-An investment proposal that specifies: investor(s) in the project, investment objectives, investment scale, investment capital, method of capital rising, location and duration of investment, labor demand, requests for investment incentives, assessment of socio-economic effects of the project;

-Copies of any of the following documents: financial statements of the last two years of the investor; commitment of the parent company to provide financial support; commitment of a financial institutions to provide financial support; guarantee for investor’s financial capacity; description of investor’s financial capacity;

-Demand for land use; if the project does not use land allocated, leased out by the State, or is not permitted by the State to change land purposes, then a copy of the lease agreement or other documents certifying that the investor has the right to use the premises to execute the project shall be submitted;

-Explanation for application of technologies to the project which specifies: names of technologies, origins, technology process diagram, primary specifications, conditions of machinery, equipment and primary technological line;

-The business cooperation contract (BCC) (if the project is executed under a BCC).

Order and Procedure

-Investors submit the dossier at Department of Planning and Investment (or management of economic zones, high-tech zones);

-Within 15 working days from the date of receipt of a complete and valid dossier, the competent authority shall grant the investment registration certificate for investors.In practice, the time duration would be lengthened due to the time for preparation of documents from investor, getting them notarized, legalized and authenticated before being accepted in Vietnam. The documents in foreign languages shall need to be translated into Vietnamese. The actual time for processing paper at the State authority would also last longer in practice when the State authority evaluate the project plan of the investor to ensure that its investment purpose is achievable economically and in accordance to the regulations of Vietnam. It is advised that the client engage professional law firms in Vietnam to assist with advisory and investment registration process.