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blue-check It is required to apply new forms of investment registration from January 20th, 2021

Official letter No. 3543/SKHDT-KTDN dated April 19th, 2021 of the Department of Planning and Investment of Ho Chi Minh city regarding application for modification of an investment registration certificate
VietlawOnline

Relating to the application for modification of an investment registration certificate, the Department of Planning and Investment of Ho Chi Minh city notes that from January 20th, 2021, enterprises have to apply the new forms promulgated at Official letter No. 324/BKHDT-PC dated January 20th, 2021. Read more

They are the new forms of investment registration promulgated to be suitable to the Law on Investment No. 61/2020/QH14status2 .

In addition, in case a company has foreign capital and wishes to register to supplement investment fields that require market access conditions applied to foreign investors, the application for modification of the investment registration certificate must have documents clearly explaining the satisfaction of market access conditions applied to foreign investors.

For example, a company is an FDI enterprise that operates in the education sector, now it wishes to add the target “English teaching”, in the application for modification of the investment registration certificate, it is required to have documents clearly explaining the satisfaction of market access conditions applied to foreign investors according to the regulations of Decree No. 86/2018/ND-CP .

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blue-check Regarding guarantee on deposit obligation

Official letter No. 138/DTNN-NN dated April 15th, 2021 of the Ministry of Planning and Investment regarding regulations on bank guarantee on deposit obligation
VietlawOnline

The conclusion of contract of guarantee on deposit obligation between a credit institution and an investor is regulated at Clause 3 Article 25 of Decree No. 31/2021/ND-CP . Read more

Accordingly, the conclusion of a contract of guarantee shall be based on regulation of laws on civil, credit, bank guarantee and related laws.

With regard to new forms of reports on investment in Vietnam and outward investment, they are promulgated at Circular No. 03/2021/TT-BKHDT .

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blue-check Regarding registration for purchase of contributions in an FDI construction company

Official letter No. 1132/BXD-HDXD dated April 7th, 2021 of the Ministry of Construction regarding registration for purchase of contributions in a company
VietlawOnline

According to the Ministry of Construction’s opinions, the consideration to settle the registration application for purchase of contributions in a foreign direct investment construction company (FDI construction company) shall be carried out according to regulations of laws on investment and treaties to which Vietnam is a signatory. Read more

With regard the FDI construction company, it has to be responsible for ensuring business operation conditions and construction qualifications according to regulations of laws on construction upon participating in construction operations in the territory of Vietnam.

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blue-check FDI enterprises are banned from performing temporary import of raw materials for re-export to a third country

Official letter No. 535/GSQL-GQ2 dated March 26th, 2021 of the General Department of Vietnam Customs regarding export of raw materials to a third country
VietlawOnline

According to Clause 2 Article 13 of the Decree No. 69/2018/ND-CP, foreign direct investment (FDI) enterprises are not allowed to perform the temporary import of goods for re-export. Read more

“Temporary import of goods for re-export means the bringing of goods into Vietnam from foreign countries then exporting the same goods out of Vietnam (Clause 1 Article 29 of the Law on Commerce No. 36/2005/QH11status2 ).

Accordingly, the export of raw materials derived from import to a third country is deemed to be temporary import for re-export and FDI enterprises are banned from performing this activity.

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blue-check FDI enterprises are banned from temporarily importing goods for re-export but they may export imported goods

Official letter No. 294/GSQL-GQ2 dated February 5th, 2021 of the General Department of Vietnam Customs regarding exercise of exportation right of foreign direct investment (FDI) enterprises
VietlawOnline

Relating to the refection which assumes that the exercise of the right to export imported goods of FDI enterprises has many points similar to the temporary importation-re-exportation activity of FDI enterprises which is banned now, the General Department of Vietnam Customs discussed with the Ministry of Industry and Trade and received the reply as follows: the scope and management policies of the 2 activities are independent. Read more

Currently, the exportation right of FDI enterprises is regulated at Article 7 of Decree No. 09/2018/ND-CP. Accordingly, FDI enterprises are allowed to export imported goods under the exportation right, including exporting goods in their original state.

While, with regard to the temporary importation - re-exportation, naturally, it is also the exportation activity (re-exportation) of imported goods (temporarily imported) and FDI enterprises are banned from exercising this activity (Clause 2 Article 3 of Decree No. 69/2018/ND-CP ).

Although the General Department of Vietnam Customs accepts the exportation right of FDI enterprises as mentioned above, it designated Customs Departments of provinces, cities to actively evaluate potential risks and propose amendments, supplements to current regulations.

Regarding customs procedure code B13 - Export of imported goods, also applicable in case of exporting imported goods in their original state of FDI enterprises.

Regarding the policy on refund of import duty on goods re-exported in their original state, it shall be based on the regulations at Article 19 of the Law on import and export duties No. 107/2016/QH13, Article 34 of Decree No. 134/2016/ND-CPstatus2 and Official letter No. 6529/TCHQ-TXNK dated October 8th, 2020.

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blue-check Explanation of how to understand investment conditions when there is foreign capital

Official letter No. 475/BKHDT-PC dated January 27th, 2021 of Ministry of Planning and Investment regarding the regulations at Article 23 of the Law on Investment No. 61/2020/QH14status2
VietlawOnline

According to Clause 1 Article 23 the Law on Investment No. 61/2020/QH14status2 , when a business entity establishes or contributes capital to “another business entity” in one of the following cases, “such business entity” must satisfy the conditions and follow investment procedures applied to foreign investors: Read more

a) Over 50% of its charter capital or more is held by a foreign investor(s) or the majority of the general partners are foreigners if the business entity is a partnership

b) Over 50% of its charter capital or more is held by a business entity (ies) mentioned in Point a;

c) 50% of its charter capital or more is held by a foreign investor(s) and a business entity (ies) mentioned in Point a

According to opinions of the Ministry of Planning and Investment "such business entity" mentioned in the aforesaid regulations is the business entity that establishes or purchases shares, stakes. "Another business entity" is the entity that is established or has capital contributions purchased by "such business entity".

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blue-check FDI enterprises are entitled to export imported goods

Official letter No. 122/GSQL-GQ2 dated January 20th, 2021 of the General Department of Vietnam Customs regarding performance of importation rights, exportation right of foreign direct investment (FDI) enterprises
VietlawOnline

The exportation right of FDI enterprises are regulated at Clause 1 Article 7 of Decree No. 09/2018/ND-CP. Accordingly, apart from goods bought or processed in Vietnam, FDI enterprises are allowed to export goods legitimately imported in Vietnam. Read more

However, it should note that, according to Clause 2 Article 18 of the Law on Foreign trade management No. 05/2017/QH14, FDI enterprises are not allowed to perform business activities of goods border-gate transfer without following procedures for importing the goods into Vietnam and exporting the goods out of Vietnam (Clause 1 Article 30 of the Law on Commerce 2005).

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blue-check FDI enterprises may export goods bought in Vietnam or imported goods

Official letter No. 77/HQHCM-GSQL dated January 13th, 2021 of the Customs Department of Ho Chi Minh city regarding guidelines for exercising the importation and exportation rights
VietlawOnline

Relating to the exportation right of foreign direct investment (FDI) enterprises, the Customs Department of Ho Chi Minh city requests to carry out according to these regulations: Read more

- Article 28 of the Law on Commerce No. 36/2005/QH11status2 regulating export, import of goods

- Article 7 of Decree No. 09/2018/ND-CP regulating conditions for exercising the importation and exportation rights of FDI enterprises.

- Official letter No. 2765/TCHQ-GSQL dated April 1st, 2015 regarding customs procedure codes.

According to Article 7 of Decree No. 09/2018/ND-CP, any FDI obtaining the exportation right is entitled to export abroad or export to non-tariff zones goods purchased in Vietnam, goods processed in Vietnam and goods legitimately imported into Vietnam.

However, the aforesaid goods must not belong to the list of goods banned from export; the list of goods temporarily ceased from export or must have licenses or meet certain conditions as prescribed.

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blue-check Guidelines on investment registration under the new Law

Dispatch No. 8909/BKHDT-PC dated December 31st, 2020 of the Ministry of Planning and Investment regarding implementation of the Law on Investment
VietlawOnline

This document provides for guidelines for these issues: Read more

- Receiving and processing documentation and procedures under the new Law on Investment after January 1st, 2021.

- Processing investment project dossiers received before the effective date of the Law on Investment No. 61/2020/QH14status2 (January 1st, 2021).

The forms attached to this document:

- Form No. I.1: Application for investment project execution

- Forms No. I.2; No. I.3; No. I.4: Investment project proposal for each specific case.

- Form No. I.5: Registration form for capital contribution or purchase of shares/stakes

- Form II.1: Written approval for investment guidelines

- Form II.2; No. II.3; No. II. 4: Investment registration certificate

- Form II.5: Notification of fulfillment of conditions for capital contribution or purchase of shares/stakes by foreign investors.

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blue-check Some issues relating to temporary importation of FDI enterprises

Official letter No. 3739/HQHCM-GSQL dated December 21st, 2020 of the Customs Department of Ho Chi Minh city regarding issues relating procedures for temporary import, re-export of foreign direct investment (FDI) enterprises
VietlawOnline

Relating to the activity of temporary importation for re-export of FDI enterprises, the Customs Department of Ho Chi Minh city notes the following regulations: Read more

- FDI enterprises are only allowed to import goods for the purposes of the warranty and maintenance, lease, borrowing, or use for other purposes for a certain period of time and are not allowed to do the business of temporary importation (Clause 2 Article 3 of Decree No. 69/2018/ND-CP ).

- FDI enterprise are required to obtain the temporary importation licenses (by the Ministry of Industry and Trade) if they temporarily import goods which have not been sold/used in Vietnam; goods are managed by export and import quotas, tariff-rate quotas or requiring export or import licenses (Clause 1 Article 15 of Decree No. 69/2018/ND-CP ).

Regarding customs procedure, if the temporary importation of goods is for serving tasks prepared before installation, construction, customs procedure shall be carried out according to Clause 23 Article 1 of Decree No. 59/2018/ND-CPstatus2 .

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