07:17 | 25/04/2022

Vietnam: Shall the single-member LLC proposing to implement a project be approved the both investment guidelines and investor in case only company owners has the land use right?

My company will apply for approval of investment guidelines in the near future. So, shall the single-member LLC proposing to implement a project be approved the both both investment guidelines and investor in case only company owners has the land use right? Hoping to be informed! Thanks a lot!

What is selecting investors to execute investment projects conducted in Vietnam?

According to the provisions of Article 29 of the Investment Law 2020 on selecting investors to execute investment projects conducted as follows:

Article 29. Selecting investors to execute investment projects
1. The investor selection shall be carried out by:
a) holding land use right auction in accordance with regulations of law on land; or
b) bidding to select an investor in accordance with regulations of law on bidding; or
c) approving an investor as prescribed in Clauses 3 and 4 of this Article.
2. The method of investor selection mentioned in Points a and b Clause 1 of this Article shall be adopted after the approval for investment guidelines is granted, except for the investment projects not subject to approval for investment guidelines.
3. If a land use right auction is held but only one person registers for participation in the auction or the auction is unsuccessful in accordance with regulations of law on land or if bidding is conducted to select investors but only one investor registers for participation in the bidding in accordance with regulations of law on bidding, the competent authority shall carry out the procedures for approving an investor if the investor satisfies the conditions prescribed by relevant law.
4. For an investment project subject to approval for its investment guidelines, the competent authority shall grant approval for both investment guidelines and investor without holding a land use right auction or bidding to select investor in the following cases:
a) The investor has the land use rights, except for the case where the State expropriates land for national defense and security purposes or for socio-economic development in the national or public interest in accordance with regulations of law on land;
b) The investor receives the agricultural land use rights, receives the agricultural land use rights as contributed capital or leases the agricultural land use rights to execute an investment project on non-agricultural production or business and the land is not subject to land expropriation by the State in accordance with regulations of law on land;
c) The investor executes the investment project in an industrial park or hi-tech zone;
d) Other cases not subject to an auction or bidding in accordance with regulations of law.
5. The Government shall elaborate this Article.

What are the procedures for investor approval conducted in Vietnam?

According to the provisions of Article 30 of Decree 31/2021/ND-CP, the procedures for investor approval are carried out as follows:

Article 30. Procedures for investor approval
1. The only investor that has registered for participation in the auction or the investor that requests the project execution after at least 02 auction sessions have been held but unsuccessful as prescribed in Point a Clause 3 Article 29 hereof may be considered to be approved as follows:
a) The investor shall submit 04 applications for investor approval to the investment registration authority, including an application form for investor approval and the documents specified in Points b, c, e, g and h Clause 1 Article 33 of the Law on Investment;
b) Within 03 working days from the receipt of the valid application, the investment registration authority shall send relevant documents to relevant regulatory bodies to seek their opinions about the satisfaction of the requirements specified in Points b, c and d Clause 4 Article 33 of the Law on Investment. For the project whose investment guidelines have been approved by the National Assembly or the Prime Minister, the investment registration authority shall send relevant documents to the Ministry of Planning and Investment to seek its opinions;
c) Within 15 days from the receipt of the relevant documents, the enquired authorities shall give their opinions about the contents under their state management to the investment registration authority;
d) Within 25 days from the receipt of the valid applications specified in Point a of this Clause, investment registration authority shall prepare an appraisal report on the contents specified in Points b, c and d Clause 4 Article 33 of the Law on Investment and submit it to the provincial People's Committee;
dd) Within 07 working days from the receipt of the application and appraisal report, the provincial People's Committee shall grant investor approval and send the decision on investor approval to the Ministry of Planning and Investment (for the project subject to approval for its investment guidelines by the National Assembly or the Prime Minister); authority holding the auction; investment registration authority and investor.
2. The investor satisfying the conditions specified in Point b Clause 3 Article 29 hereof may be considered to be approved as follows:
a) The investor shall submit 04 sets of application for investor approval to the investment registration authority, including an application form for investor approval and the documents specified in Points b, c, e, g and h Clause 1 Article 33 of the Law on Investment;
b) Within 03 working days from the receipt of the valid application, the investment registration authority shall send a report on preliminary evaluation of capacity and experience, and the applications specified in Point a of this Clause to seek opinions of relevant regulatory bodies about the satisfaction of the requirements specified in Points b, c and d Clause 4 Article 33 of the Law on Investment. For the project whose investment guidelines have been approved by the National Assembly or the Prime Minister, the investment registration authority shall also send relevant documents to the Ministry of Planning and Investment to seek its opinions;
c) Within 15 days from the receipt of the investment registration authority's relevant documents, the enquired authorities shall give their opinions about the contents under their state management to the investment registration authority;
d) Within 25 days from the receipt of the valid applications specified in Point a of this Clause, investment registration authority shall prepare an report on the contents specified in Points b, c and d Clause 4 Article 33 of the Law on Investment and submit it to the provincial People's Committee;
dd) Within 07 working days from the receipt of the application and appraisal report, the provincial People's Committee shall grant investor approval and send the decision on investor approval to the Ministry of Planning and Investment (for the project subject to approval for its investment guidelines by the National Assembly or the Prime Minister) and the investor.
3. If a Ministry, ministerial agency or Governmental agency conducts bidding, such agency shall prepare a report on preliminary evaluation of capacity and experience and approve the investor if the investor satisfy the requirements specified in Points b, c and d Clause 4 Article 33 of the Law on Investment. The decision on investor approval shall be sent to the Ministry of Planning and Investment (for the project subject to its investment guidelines by the National Assembly or the Prime Minister), investment registration authority and investor.
4. Procedures for approving the investor in the investment project executed in an economic zone as specified in Clause 2 Article 32 of the Law on Investment are as follows:
a) The investor shall submit 04 sets of application for investor approval to economic zone management board, including an application form for investor approval and the documents specified in Points b, c, e, g and h Clause 1 Article 33 of the Law on Investment;
b) The economic zone management board shall send relevant documents to relevant regulatory agencies according to Point b Clause 1 and Point b Clause 2 of this Article;
c) Within 15 days from the receipt of the relevant documents, the enquired authorities shall give their opinions about the contents under their state management to the economic zone management board;
d) The economic zone management board shall approve the investor within 25 days from the receipt of the valid applications specified in Point a of this Clause.

Shall the single-member LLC proposing to implement a project be approved the both both investment guidelines and investor in case only a company owner has the land use right?

According to the instructions in subsection 26, section I of the Appendix issued together with Official Dispatch 2541/CV-TCT dated April 18, 2022 on the case of approval of both investment guidelines and investor for single-member LLCs in case only a company owner has the land use right as follows:

"I. Contents related to the procedures for investor selection, approval of investment guidelines and issuance of Investment Registration Certificate
...
26. Shall the single-member LLC proposing to implement a project be approved the both both investment guidelines and investor in case only a company owner has the land use right?
Answering:
According to the provisions of Clause 4, Article 29 of the Law on Investment, the approval for both investment guidelines and investor is done in case the investor has the right to use the land. Thus, in case the company is an investor without the land use right, there is no basis for approving the both the investment policy and the investor to implement the project."

Thus, in case the company is an investor without the land use right, there is no basis for approving both the investment guidelines and the investor to implement the project.

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