Ministry of Planning and Investment of Vietnam's guidelines for procedure for adjusting investment projects due to the separation of enterprises

Ministry of Planning and Investment of Vietnam's guidelines for procedure for adjusting investment projects due to the separation of enterprises (Internet image)

The Ministry of Planning and Investment of Vietnam issued Official Dispatch 432/BKHDT-PC dated January 17, 2023, on procedures for adjusting investment projects due to the separation of enterprises.

Specifically, procedures for adjusting investment projects due to the separation of enterprises are carried out as follows:

1. Regarding the conditions for project implementation due to the separation of enterprises in Vietnam

- According to Official Dispatch 3014/SKHDT-KTDN and attached documents, the Cau Sen Brick Factory Project (Project) was granted Investment Certificate No. 20121000201 by the People's Committee of Bac Giang Province on September 8, 2009, with the progress of completing the construction and putting the work into use in September 2010.

The Ministry of Planning and Investment realized that the Project has been implemented for a long time (from 2009 to now), the provisions of the law governing its operation have changed in each period.

Therefore, based on the responsibilities of state management and investment supervision and evaluation specified in Clause 4, and Articles 69 and 70 of the Law on Investment, the Department of Planning and Investment of Bac Giang Province is requested to review and evaluate the entire project implementation process to ensure that the Project's implementation complies with the laws on investment, enterprises, land, construction, bidding, and other relevant laws in force at the time of implementation.

In which, note the need to review the issuance of Investment Certificate for the Project;

Although the Project has been granted a Certificate since 2009, so far it has not been completed and put into use.

- According to Official Dispatch 3014/SKHDT-KTDN, Cau Sen Joint Stock Company has completed the separation of businesses to form Cau Sen Luc Nam Joint Stock Company in accordance with the Law on Enterprises.

The Department of Planning and Investment of Bac Giang Province is responsible for the implementation of the separation procedures to ensure compliance with the provisions of the law on enterprises at the time of separation.

In case the implementation of the Project and the separation of enterprises ensure compliance with the provisions of the law, it is recommended to study the adjustment of the Project in the case of the separation of enterprises according to Section 2 of the official dispatch.

2. Regarding the adjustment of investment projects due to the separation of enterprises in Vietnam

Clause 1, Article 51 of Decree 31/2021/ND-CP stipulates:

"Economic organizations are formed on the basis of division, separation, consolidation, merger, and transformation of the inherited (reorganized) type of economic organization; and continue to exercise the rights and obligations of the reorganized economic organization with respect to investment projects that the reorganized economic organization has performed before the reorganization according to the provisions of the law on enterprises, land, and relevant laws".

Clause 2, Article 51 of Decree 31/2021/ND-CP stipulates:

"The investor shall decide on the reorganization and disposal of assets, rights, and obligations related to the investment project in accordance with the law on enterprises and relevant laws. After completing the procedures for reorganization and handling of assets, rights, and obligations related to the investment project, the investor shall compile a dossier of requests for adjustment of the investment project."

Clause 4, Article 51 of Decree 31/2021/ND-CP stipulates:

"For an investment project that has been granted an investment registration certificate and is not subject to approval of investment policies or has been approved for investment policies but does not fall into the case specified in Clause 3, Article 41 of the Law on Investment, the investor shall submit 01 set of dossiers specified in Clause 2, Article 51 of Decree 31/2021/ND-CP to the Investment Registration Authority to adjust the project according to the provisions of Article 47 of Decree 31/2021/ND-CP. The adjusted investment registration certificate is sent to the investor".

Therefore, based on the above provisions, the Department of Planning and Investment of Bac Giang Province is requested to: evaluate the separation of enterprises; clarify the relationship; determine the method of transferring rights and obligations regarding the project of the investor and the enterprise to be established;

At the same time, consider the project implementation capacity of this enterprise and its ability to meet the conditions for implementing investment projects as prescribed in order to have a basis for considering the adjustment of the Investment Registration Certificate.

In which, it is recommended to review the satisfaction of equity conditions for project implementation in case of separation of enterprises.

In all cases, the separated enterprise must be capable of implementing the project in accordance with the contents, objectives, scale, schedule, and other conditions specified in the Investment Registration Certificate; at the same time, it must satisfy the conditions for business investment in the field of operation of the investment project.

In case the transfer of a project to a separated enterprise gives rise to a project transfer transaction, the parties must satisfy the conditions and follow the procedures prescribed in Article 46 of the Law on Investment and Article 48 of Decree 31/2021/ND-CP.

The above is the opinion of the Ministry of Planning and Investment on the procedures for adjusting investment projects due to the separation of enterprises and was sent to the Department of Planning and Investment of Bac Giang Province to study and comply with the law.

Vo Ngoc Nhi

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE