Vietnam: In 2024, what are the conditions for the transfer of an investment project under the newest regulations?

Main Content

• In 2024, what are the conditions for the transfer of an investment project in Vietnam under the newest regulations?
• What are the regulations on the modification of an investment project contract in case of transfer of the project in Vietnam?
• What does the application for adjustment of an investment project in case of transfer of the investment project in Vietnam include?

In 2024, what are the conditions for the transfer of an investment project in Vietnam under the newest regulations?

Under Clause 1, Article 46 of the Investment Law 2020, an investor is entitled to transfer part or whole of the investment project to another investor when the following conditions are satisfied:

- The investment project or the part of the investment project which is transferred has not been terminated in accordance with Clauses 1 and 2 Article 48 of the Investment Law 2020;

- The foreign investor receiving the investment project or part of the investment project must satisfy the conditions set out in Clause 2 Article 24 of the Investment Law 2020;

- The conditions set forth in the law on land are complied with if the transfer of an investment project is associated with the transfer of the land use rights/assets on land;

- The conditions set forth in the laws on residential housing and on real estate business are complied with in the case of transfer of a residential housing construction project or real estate project;

- The conditions set forth in the written approval for investment guidelines or the investment registration certificate or in relevant laws (if any) are complied with;

- Upon transfer of an investment project, in addition to compliance with this Article, the state-owned enterprise shall comply with the Law on Management and Use of State Capital Invested in Manufacturing and Business Activities of Enterprises before making any modification to the investment project.

In addition, in Clause 2, Article 76 of the Bidding Law 2023, the transfer of an investment project must meet the following conditions:

- The transfer is approved by the competent person;

- The investor that receives the transfer (transferee) meets technical and financial requirements for executing the investment project;

- The transferee commits to inherit all rights and obligations of the transferor as defined in the signed investment project contract.

What are the regulations on the modification of an investment project contract in case of transfer of the project in Vietnam?

In Article 76 of the Bidding Law 2023, the modification of an investment project contract in case of transfer of the project in Vietnam is specified as follows:

Modification of investment project contract

1. An investment project contract may be modified in the following cases:

a) The investment project which is subject to approval of investment guidelines is modified in accordance with regulations of the Law on investment resulting in changes in contents of the project contract.

Modifications to the contract shall only be made after the modified investment guidelines have been approved by a competent authority. The investor must meet technical and financial requirements for executing the modified investment project;

b) The investment project is transferred in accordance with regulations of the Law on investment and relevant laws;

c) In other cases as agreed upon by the parties in the contract in conformity with regulations of law.

2. The transfer of an investment project specified in Point b Clause 1 of this Article must meet the following conditions:

a) The transfer is approved by the competent person;

b) The investor that receives the transfer (transferee) meets technical and financial requirements for executing the investment project;

c) The transferee commits to inherit all rights and obligations of the transferor as defined in the signed investment project contract.

Thus, in case of transfer of an investment project under the provisions of the law on investment and other relevant laws, the investment project contract will also be modified as above.

What does the application for adjustment of an investment project in case of transfer of the investment project in Vietnam include?

According to the provisions of Clause 5, Article 48 of Decree 31/2021/ND-CP, the application for adjustment of an investment project in case the investor transfers part or whole of the investment project includes:

- An application form for adjustment of the investment project;

- A report on the investment project’s progress by the time of project transfer;

- A contract or principal contract for transfer of part or whole of the investment project;

- Copies of documents about the legal status of the transferor and transferee;

- A copy of the investment registration certificate; the decision on approval for investment guidelines; the decision on investor approval (if any);

- A copy of the BCC (for BCC investment projects);

- A copy of one of the following documents of the transferee: financial statements for the last 02 years or equity audit report of the investor, commitment of the parent company to provide financial support or commitment of a financial institution to provide financial support, guarantee for the investor’s financial capability or a document describing the investor’s financial capability.