What are the regulations on the authority and the sequence for adjusting projects without the procedures for investment guideline approval upon adjusting the investment project in Vietnam?
- In what case will the investor not be required to follow the procedures for investment guideline approval in Vietnam?
- In what case will the investment projects not be required to follow the procedures for investment guideline approval or investment guideline adjustment upon adjusting the investment project in Vietnam?
- What is the adjustment of investment projects carried out before the effective date of the Law on Investment in Vietnam conducted?
In what case will the investor not be required to follow the procedures for investment guideline approval in Vietnam?
Pursuant to Clause 2, Article 47 of the Law on Investment 2020, the investors are not required to carry out procedures for investment guideline approval as prescribed in this Law with respect to the investment projects in one of the following cases:
Article 77. Grandfather clauses
…
2. Investors are not required to follow procedures for approval for investment guidelines in accordance with this Law with respect to the investment projects in one of the following cases:
a) The investors obtained investment guideline decisions, investment guideline approval or investment approval in accordance with regulations of laws on investment, housing, urban areas and construction before the effective date of this Law;
b) The investors have started execution of projects that are not subject to approval for their investment guidelines, investment guideline decision or investment guideline or issuance of the investment registration certificate in accordance with regulations of laws on investment, housing, urban areas and construction before the effective date of this Law;
c) Investors won the bidding for investor selection or the land use right auction before the effective date of this Law;
d) Projects have been granted investment incentive certificates, investment licenses, investment certificates or investment registration certificates before the effective date of this Law.
In what case will the investment projects not be required to follow the procedures for investment guideline approval or investment guideline adjustment upon adjusting the investment project in Vietnam?
Pursuant to Clauses 1 and 2, Article 117 of Decree 31/2021/ND-CP, the adjustment of investment projects conducted before the effective date of the Law on Investment are prescribed as follows:
Article 117. Executing investment projects executed before the effective date of the Law on Investment
1. The investment project specified in Point b, c or d Clause 2 Article 77 of the Law on Investment is not required to follow the procedures for investment guideline approval or investment guideline adjustment upon adjusting the investment project, except for the following cases:
a) Change or add a content or objective while the content or objective to be changed or added is subject to approval for investment guidelines specified in Articles 30, 31 and 32 of the Law on Investment;
b) Expand the project objective, thereby resulting in the project being subject to approval for its investment guidelines as prescribed in Articles 30, 31 and 32 of the Law on Investment;
c) Adjust the investment project with one of the following contents added: request for land allocation or land lease by the State without holding a land use right auction or bidding, receipt of the rights to use land or property on land; request for state’s permission for land repurposing, except for the case of allocating land, leasing out land or permitting repurposing of land of households or individuals that are not required to obtain a written approval of the provincial People’s Committee in accordance with regulations of law on land.
2. In the cases mentioned in Points a, b and c Clause 1 of this Article, the investor shall follow the procedures for investment guideline approval according to the corresponding regulations set out in Section 2 Chapter IV of this Decree prior to making such adjustments. In such cases, the investment guideline approving authority shall consider the adjustments to grant approval for investment guidelines.
What is the adjustment of investment projects carried out before the effective date of the Law on Investment in Vietnam conducted?
Pursuant to Clause 5, Article 117 of Decree 31/2021/ND-CP, the adjustment of investment projects is conducted as follows:
Article 117. Executing investment projects executed before the effective date of the Law on Investment
…
5. If the investment project adjustment made in a case other than the case specified in Clause 1 or 3 of this Article changes any content of the investment license, certificate of investment incentives, investment certificate, investment registration certificate or another equivalent document issued before the effective date of the Law on Investment, the investor shall follow procedures corresponding to the procedures for adjusting the investment registration certificate as prescribed in Article 47 of this Decree at an investment registration authority to obtain the investment registration certificate. The investment registration certificate shall specify contents of the adjusted investment project and all unchanged and effective contents of the investment project on the investment license, investment certificate, certificate of investment incentives, investment registration certificate or another equivalent document.
Thus, pursuant to subsection 62, Section I of the Appendix issued together with Official Dispatch 2541/CV-TCT dated April 18, 2022, the adjustment of project in Clause 1, Article 117 of Decree 31/2021/ND-CP shall follow the procedures specified in Clause 2, Article 117 of this Decree.
Accordingly, in case of adjustment of the contents specified at Points a, b and c, Clause 1 of this Article, the investor shall carry out the procedures for investment guideline approval according to the corresponding provisions in Section 2, Chapter IV of this Decree before adjusting the investment project.
In this case, the authorities with competent to approve the investment gudelines shall consider the contents of the adjustment to approve the investment guideline.
If the adjustment of the investment project not subject to the cases specified in Clauses 1 and 3 of this Article causes the changes on the contents of the Investment License, Investment Incentive Certificate, Investment Certificate or Investment Registration Certificate or documents with equivalent legal validity issued before the effective date of the Law on Investment, the investor shall carry out the procedures corresponding to the procedure for adjusting the Investment Registration Certificate as prescribed Article 47 of this Decree at the investment registration agency to be granted an investment registration certificate (Clause 5, Article 117 of Decree 31/2021/ND-CP).
Thư Viện Pháp Luật
