What are regulations on investment guideline approval and investor selection in execution of investment projects in Vietnam?

What are regulations on investment guideline approval and investor selection in execution of investment projects in Vietnam?

How investment guideline approval and investor selection in execution of investment projects in Vietnam are promulgated by the law? Thank you!

Answer: Pursuant to Article 29 of the Decree 31/2021/ND-CP stipulating investment guideline approval and investor selection in execution of investment projects in Vietnam as follows:

1. Authorities that have the power to approve investment guidelines are specified in Articles 30, 31 and 32 of the Law on Investment (hereinafter referred to as “investment guideline approving authorities”). If an investment project has objectives and contents subject to approval for its investment guidelines by different investment guideline approving authorities, the highest authorized authority shall grant approval for investment guidelines of the entire project.

2. For an investment project subject to approval for its investment guidelines specified in Articles 30, 31 and 32 of the Law on Investment, the investment guideline approving authority shall consider approving investment guidelines and decide on the method of selection of the investor in the project as follows:

a) Hold a land use right auction in the land is allocated or leased out for execution of the investment project subject to a land use right auction in accordance with regulations of law on land and land clearance has been completed in the land area where the project is expected to be executed.  In this case, the investment guideline approving authority shall assign a competent authority to hold the land use right auction in accordance with regulations of law on land to select an investor in the project;

b) Bid to select an investor in the investment project in the case of bidding to select investors in accordance with regulations of law on bidding, law on private sector involvement and special legislation, and failure to satisfy the condition for land use right auction specified in Point a of this Clause. The investment guideline approving authority shall assign a competent authority to bid to select the investor in accordance with regulations of law on bidding; The decision on approval for investment guidelines also serves as the decision on approval for list of investment projects in accordance with regulations of law on bidding;

c) For the investment projects specified in Clause 4 Article 29 of the Law on Investment and projects other than those specified in Points and b of this Clause, the investment guideline approving authority shall consider granting approval for both investment guidelines and investor without holding a land use right auction or bidding to select investors as prescribed in Clause 5 of this Article.

3. The investor approval specified in Clause 3 Article 29 of the Law on Investment shall be carried out as follows:

a) The land use right auction has been held but only one investor registers for participation in the auction or at least 02 auction sessions have been held but unsuccessful in accordance with regulations of law on land;

b) The list of projects has been published in accordance with regulations of law on bidding but only one investor carries out the registration and satisfies preliminary requirements on capacity and experience or multiple investors carry out the registration but only one investor is qualified in terms of capacity and experience in accordance with regulations of law on bidding;

c) The authority that has the power to hold the auction or bid shall consider the satisfaction of the conditions mentioned in Points a and b of this Clause and notify the investment registration authority and investor (if any) in writing to follow the procedures for investor approval as prescribed in Clauses 1, 2 and 3 Article 30 hereof.

4. The investor is entitled to make a selection as prescribed in Points a and b Clause 2 of this Article to execute the project as follows:

a) The competent authority shall decide to approve auction winning results or approve results of investor selection in accordance with regulations of law on land and bidding. The decision on approval for auction winning results or decision on approval for investor selection results shall be sent to the investment guideline approving authority, investment registration authority and investor;

b) The investor that wins the auction or bid shall follow procedures for land allocation or land lease in accordance with regulations of law on land and bidding, and execute the investment project according to the decision on approval for investment guidelines, decision on approval for auction winning results or decision on approval for investor selection results.

5. For the investment projects specified in Point c Clause 2 of this Article, the investment guideline approving authority shall consider granting approval for both investment guidelines and investor without holding a land use right auction or bidding to select investors in the following cases:

a) An investor that has the land use rights is an investor that is using land allocated or leased out by the State or whose land use rights are recognized by the State or that receives the land use rights in accordance with regulations of law, and at the time of submitting the application for approval for investment guidelines, the area of land being used by the investor is not on the list of projects on land that needs expropriating for national defense and security purposes or for socio-economic development in the national or public interest approved by the provincial People’s Council, except for the case where the land is being used as a result of extension of the project’s duration as prescribed in Clause 6 Article 27 hereof;

b) The investor is permitted by a competent authority to receive the agricultural land use rights, receive 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 in accordance with regulations of law on land;

c) The investor executes the investment project in an industrial park or hi-tech zone;

d) Projects other than those specified in Points a and b Clause 2 of this Article;

dd) Other cases not subject to land use right auction or bidding for investor selection in accordance with regulations of law on land and bidding, relevant regulations of law.

6. Power, procedures and applications for investor approval and investment guideline approval are specified in Articles 30, 31, 32 and 33 hereof.

7. If two investors or more in the investment project specified in Point c, d or dd Clause 5 of this Article submit a valid application for project execution at one location within 20 days (for the project subject to approval for its investment guidelines by the Prime Minister) or 15 days (for the project subject to approval for investment guidelines by the provincial People's Committee) from the receipt of the valid application of the first investor, the Ministry of Planning and Investment and investment registration authority shall follow the procedures below:

a) Notify the investors in writing of implementation of the procedures for investment guidelines approval and investor selection according to this Clause within 25 days (for the project subject to approval for its investment guidelines by the Prime Minister) or 20 days (for the project subject to approval for investment guidelines by the provincial People's Committee) from the receipt of the valid application of the first investor. The Ministry of Planning and Investment and investment registration authority shall not consider and shall return other investors’ applications (if any) submitted after the 20-day period (for the project subject to approval for its investment guidelines by the Prime Minister) or 15-day period (for the project subject to approval for investment guidelines by the provincial People's Committee) from the receipt of the valid application of the first investor;

b) Implement the procedures for investment guideline approval as prescribed in Article 32 or Article 33 hereof on the basis of the investment project proposal of the first investor. If the first investor’s investment project proposal fails to satisfy the conditions mentioned in Clause 3 Article 33 of the Law on Investment, implement the procedures for investment guideline approval on the principle that the investment project proposal of each next investor is considered;

c) According to the request of the Ministry of Planning and Investment or investment registration authority, the investment guideline approving authority shall consider granting approval for investment guidelines and assign a competent authority to select to apply the law on bidding to select investors among the investors that have submitted a valid application;

d) The investor is entitled to select to implement the procedures for investor approval according to Clause 2 or Clause 4 Article 30 hereof.

Which business lines are prohibited accessing market in Vietnam?

I would like to know about the list of business lines are prohibited accessing market in Vietnam. Thank you!

Answer: Pursuant to Appendix I of the List of business lines prohibited accessing market in Vietnam issued together with Decree 31/2021/ND-CP stipulating as follows:

1. Trade in goods and services on the list of goods and services under state monopoly.

2. Press activities and collection of news in any shape or form.

3. Catching or harvesting marine life.

4. Investigation and security services.

5. Administrative and judicial services, including judicial assessment services, bailiff services, property auction services, notary services, official receiver’s services.

6. Guest worker services.

7. Investment in construction of cemeteries for transfer of land use right and infrastructure thereon.

8. Direct collection of garbage from households.

9. Public survey services.

10. Blasting services.

11. Manufacture, sale of weapons, explosive materials and combat gears.

12. Import, dismantlement of used seagoing ships.

13. Public postal services.

14. Merchanting trade of goods.

15. Temporary import for re-export of goods.

16. Exercise of rights to export, import distribute goods on the list of goods to which foreign investors and foreign-invested business organizations do not have the right to export, import or distribute.

17. Collection, purchase, handling of public property at armed force units.

18. Manufacture of military equipment or materials; trade in military equipment, military weapons, specialized equipment and vehicles exclusively for used by the military and the police, specialized equipment and parts thereof, manufacture technology thereof;

19. Industrial property representative services and intellectual property assessment services.

20. Services that involve establishment, operation, sustainment and maintenance of maritime signals, water zones, water areas, public navigable channels and maritime routes; survey of water zones, water areas, public navigable channels and maritime routes serving the maritime announcements; survey, development and publishing nautical charts for water bodies, seaports, navigable channels and maritime routes; development and publishing of marine safety publications.

21. Maritime safety services in water zones, water areas and public navigable channels; electronic maritime information services.

22. Services that involve inspection (inspection and testing) and issuance of certificates to vehicles (including systems, assembled parts, devices and parts of vehicles); inspection and issuance of certificates of technical safety and environmental safety to vehicles, specialized equipment, containers, equipment for packaging dangerous goods used in transport; inspection and issuance of certificates of technical safety and environmental safety to vehicles and equipment used for exploration, extraction and transport of petroleum at sea; occupational safety inspection of equipment subject to strict occupational safety requirements on vehicles and equipment used for exploration, extraction and transport of petroleum at sea; fishing vessel inspection and registration services.

23. Services that involve survey, assessment and harvest of natural forests (including logging, hunting, trapping wild and rare animals, management of gene pools of plants, domestic animals and microorganisms used in agriculture.

24. Research or use of genetic resources of new domestic animals before evaluation by the Ministry of Agriculture and Rural Development.

25. Travel services, except international travel services for inbound tourists.

Which business lines are eligible for special investment incentives in agriculture in Vietnam?

I would like to know about the list of business lines are eligible for special investment incentives in agriculture in Vietnam. Thank you!

Answer: Pursuant to Appendix II of the List of Business Lines Eligible for Investment Incentives issued together with Decree 31/2021/ND-CP stipulating business lines are eligible for special investment incentives in agriculture in Vietnam as follows:

1. Planting, cultivation, protection and development of forests; development of production forests in empty lands and hills; planting big timber forests and conversion of small timber forests into big timber forests; development of non-timber forest products, restoration of natural forests.

2. Cultivation, treatment, preservation of agriculture, forestry, aquaculture products, processing of non-timber forest products.

3. Production, propagation and crossbreeding of plants, domestic animals, aquatic breeds, development of hi-tech plants for forestry.

4. Salt production, harvesting and refining.

5. Offshore fishing using advanced equipment and methods; fishing logistics services; construction of fishing vessel building facilities and building fishing vessels.

6. Marine rescue services.

7. Research, manufacture of biotechnology food products.

8. Manufacture of sawmill products; manufacture of artificial planks, including: plywood, joinery planks, MDF.

Best regards!