The latest regulations on transfer of investment projects

1. Conditions for transfer of investment projects

According to the provisions of Law on Investment 2020, the investor is entitled to transfer part or whole of the investment project to another investor when the following conditions are satisfied:

- An investment project or part of an investment project that is transferred is not terminated in the following cases:

• The investor decides to terminate the operation of the investment project.

• According to the termination conditions specified in the contract, the enterprise's charter.

• The operation term of the investment project expires.

• The investment project falls into one of the cases of cessation of operation specified in Clauses 2 and 3, Article 47 of Law on Investment 2020 and the investor is unable to overcome the conditions for cessation of operation.

• Investors are not allowed to continue using the investment location and do not carry out the procedures for adjusting the investment location within 06 months from the date of not being allowed to continue using the investment location, except for Land reserved for the investment project is expropriated by the State for the reason that the land is not used or the land use is delayed in accordance with regulations of law on land.

• The investment project has ceased operation and within 12 months from the date of shutdown, the investment registration agency cannot contact the investor or the investor's legal representative.

• The investment project is subject to land recovery due to the failure to put the land to use or the delay in putting the land into use according to the provisions of the land law.

• Investors do not deposit or do not guarantee the escrow obligation as prescribed by law for investment projects subject to investment project implementation security.

• Investors conduct investment activities on the basis of fake civil transactions according to the provisions of civil law.

• According to the judgment, decision of the Court, arbitral award.

- Foreign investors receiving transfer of investment projects, part of investment projects must satisfy the following conditions:

• Market access conditions for foreign investors are specified in Article 9 of Law on Investment 2020. These include: Foreign investors' charter capital ownership ratio in economic organizations; Investment form; Scope of investment activities; Investor's capacity; partners participating in investment activities; Other conditions as prescribed in laws and resolutions of the National Assembly, ordinances and resolutions of the National Assembly Standing Committee, decrees of the Government and international treaties to which the Socialist Republic of Vietnam is a signatory.

• Ensuring national defense and security in accordance with the provisions of Law on Investment 2020.

• Regulations of the land law on conditions for receiving land use rights, conditions for using land in islands, communes, wards, border towns, communes, wards and coastal townships.

- The conditions set forth in the law on land are complied with if the transfer of an investment project is associated with transfer of the land use rights/assets on land.

- The conditions set forth in the laws on residential housing and on real estate business are complied with in the case of transfer of a residential housing construction project or real estate project are complied with.

- The conditions set forth in the written approval for investment guidelines or the investment registration certificate or in accordance with other relevant regulations of law (if any) are complied with.

- Upon transfer of an investment project, in addition to compliance with Article 46 of Law on Investment 2020, the state-owned enterprise shall comply with the Law on Management and Use of State Capital Invested in Manufacturing and Business Activities of Enterprises before making any adjustment to the investment project.

2. Investment project transfer dossier

To carry out the procedures for transferring an investment project, the investor needs to fully prepare the following documents, papers and documents:

• Project transfer registration document.

• The decision of the Members' Council or the owner of the enterprise or the general meeting of shareholders or the agreement of the business cooperation parties (for investment projects in the form of business cooperation contracts) on the transfer project.

• Project transfer contract.

• Documents certifying that the transfer has been completed, certified by the transferor.

• Report on the status of project implementation activities. 

• Copy of Investment Certificate.

• Report on the operation and financial statements of the enterprise at the time of conversion request.

3. Procedures for transferring investment projects

Regulations on procedures for transferring investment projects are specified in the Investment Law 2020 and Decree 31/2021/ND-CP The Decree details and guides the implementation of a number of articles of the Investment Law such as: 

For projects granted an Investment Registration Certificate and not subject to a decision on investment policies, a project granted an Investment Registration Certificate in the case of a decision on investment policies that the investor has completed the capital contribution, mobilize capital and put the project into exploitation and operation:

Step 1: The investor who transfers the investment project submits a dossier to the Department of Planning and Investment.

Step 2: The Department of Planning and Investment receives the application, considers the conditions for project transfer to adjust the Investment Registration Certificate upon receipt of a valid application.

For investment projects subject to the Prime Minister's decision on investment policies:

Step 1: The investor who transfers the investment project submits a dossier to the Department of Planning and Investment.

Step 2: Competent state agencies consider the application.

The Department of Planning and Investment shall send the dossier to the competent state agency for opinions on the conditions for transfer of investment projects. Competent state agencies shall consider and give opinions on transfer conditions. The Department of Planning and Investment shall submit it to the People's Committee of the province for consideration, comment and send it to the Ministry of Planning and Investment. The Ministry of Planning and Investment shall make an appraisal report on the conditions for transferring investment projects. Upon receiving the appraisal report from the Ministry of Planning and Investment, the Prime Minister considers and decides to adjust the investment policy.

Step 3: Get the result.

• For projects without an Investment Registration Certificate: the written decision on adjustment of investment policies shall be sent to the investor.

• For projects granted investment registration certificates: Upon receipt of the decision on adjustment of investment policies, the Department of Planning and Investment shall amend the Investment Registration Certificate for the receiving investor. 

For investment projects subject to investment policy decision of the provincial People's Committee:

Step 1: Investors transferring investment projects submit dossiers at the Department of Planning and Investment.

Step 2: The Department of Planning and Investment shall send the dossier to the competent state agency for opinions on the conditions for transfer of investment projects. The Department of Planning and Investment and relevant agencies shall consider and give opinions on the transfer conditions under their management; The Department of Planning and Investment makes a report on meeting the conditions for project transfer. Finally, the Department of Planning and Investment, the People's Committee of the province will consider and decide to adjust the investment policy.

Step 3:

• For projects without an Investment Registration Certificate: the written decision on adjustment of investment policies shall be sent to the investor.

• For projects granted investment registration certificates: Upon receipt of the decision on adjustment of investment policies, the Department of Planning and Investment shall amend the Investment Registration Certificate for the receiving investor transfer investment projects.