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한국어Foreign companies contribute a large part to the investment rate for investment projects in the territory of Vietnam. In order to carry out investment projects, foreign companies need to comply with Vietnam’s laws on investment in particular and the WTO commitments and international trade agreements on investment in general. In the course of implementing an investment project, if there is a change in the project implementation schedule, the foreign company needs to adjust the implementation schedule of the investment project.
So what should foreign companies pay attention to to adjust the implementation schedule of investment projects in accordance with the provisions of the law?
According to the provisions of Article 3.4 of the Law on Investment 2020, “investment project” means a collection of proposals for the expenditure of mid-term or long-term capital to carry out investment activities in a particular administrative division over a certain period of time.
When there is any change in (i) progress of capital contribution and mobilization of capital sources; or (ii) the progress of the implementation of the main operational objectives of the investment project, if the investment project is divided into phases, the implementation schedule for each stage must be specified, foreign companies must carry out procedures for adjusting the project implementation schedule in accordance with the law on investment. Adjustment of the implementation schedule of an investment project is basically the investor carrying out the procedures for extending the implementation time of the investment project as prescribed from the time the project is approved for the investment policy to the time the project is complete, exploit and use the project.
Conditions for adjusting the progress of investment projects
A foreign company that adjusts the progress of an investment project needs to meet the following conditions for a quick approval and appraisal process:
First, the foreign company needs to carry out the procedures for changing and approving the investment policy. According to the provisions of Article 41.3.d of the Law on Investment 2020, in case of adjusting the project implementation schedule, the total time is longer than 12 months compared with the schedule specified in the written approval of the project policy investment, foreign companies must carry out procedures for approval of adjustment of investment policies.
However, foreign companies are not allowed to adjust the implementation schedule of investment projects whose total duration exceeds 24 months compared with the progress of investment projects specified in the written approval of the owner initial investment, except for one of the following cases:
- To overcome consequences in case of force majeure in accordance with the provisions of civil law and law on land;
- Adjustment of the implementation progress of investment projects because investors are slow to be allocated or leased land by the State or permitted to change the land use purpose;
- Adjusting the implementation progress of investment projects at the request of state management agencies or state agencies that are slow to carry out administrative procedures;
- Adjustment of investment projects due to planning changes by state agencies;
- Change the target specified in the investment policy approval document; adding targets subject to approval of investment policies;
- Increasing the total investment capital from 20% or more changes the size of the investment project
Second, the foreign company must ensure the project implementation time according to the schedule committed in the investment registration certificate;
Third, the foreign company needs to fulfill the obligation to report the implementation of the investment project up to the time of the change;
Fourth, the foreign company needs to meet the conditions specified in the investment registration certificate.
Procedures for adjusting the progress of investment projects
For projects that have been approved for investment policies, foreign companies that want to adjust the implementation progress of investment projects need to carry out procedures for adjusting the decision on approval of investment policies according to regulations corresponding to the authority to approve investment policies of all levels as prescribed in Articles 44, 45 and 46 of Decree 31/2021/ND-CP. Pursuant to the decision approving the adjustment of investment policies, the foreign company shall carry out the procedures for adjusting the decision on investor approval or the investment registration certificate.
Foreign companies can refer to the following steps to adjust the progress of investment projects:
Step 1: Prepare documents
Dossier for adjustment of investment project implementation schedule as prescribed in Article 44.1 of the Law on Investment 2020 includes:
- A written request for adjustment of the investment project implementation schedule;
- Report on the implementation of investment projects up to the time of progress adjustment;
- Investor’s decision on adjustment of investment project progress;
- Explain or provide documents related to the adjustment of the contents specified at Points b, c, d, dd, e, g and h, Clause 1, Article 33 of the Investment Law 2020 (if any).
Step 2: Submit the application to the competent agency for settlement
Depending on the purpose of the investment project, the authority to approve the investment policy of the State agency will be different, the foreign company should pay attention to the investment registration agency that has issued the Certificate of Registration initial investment in order to submit the application for registration of adjustment of the implementation progress of the investment project.
Note: in case the foreign company does not carry out the procedures for adjusting the Investment Registration Certificate in case the adjustment of the investment project changes the contents of the Investment Registration Certificate, the foreign company they may be administratively sanctioned from 70,000,000 VND to 100,000,000 VND.
The above is an overview of the notes when adjusting the project implementation schedule of foreign companies. If you have difficulty in finding a Law Firm to advise and support in the legal field related to banking, please contact us.
[1] Article 40.8 of the Law on Investment 2020
[2] Article 41.4 of the Law on Investment 2020
[3] Article 43.2 of Decree 31/2021/ND-CP
