To: The People’s Committees of provinces and central-affiliated cities

Implementing the Prime Minister's Decision No. 1242/QD-TTg dated July 16, 2021 on review and relief of problems and difficulties and enhancement of implementation of investment projects falling within the remit of ministries, central and local authorities, the Ministry of Planning and Investment cooperated with ministries and central authorities in reviewing, consolidating and reporting problems and difficulties in the implementation of business investment projects mentioned in Official Dispatch No. 7521/BKHDT-PC dated November 01, 2021 to the Permanent Deputy Prime Minister Pham Binh Minh, the Head of the Working Group.

Implementing the direction of the Permanent Deputy Prime Minister mentioned in Official Dispatch No. 8393/VPCP-CN dated November 16, 2021 and Notification No. 80/TB-VPCP dated March 23, 2022 of the Office of the Government, the Ministry of Planning and Investment provides guidance on implementing business investment projects according to provisions of law (Appendices enclosed with).

For your information and compliance./.

ON BEHALF OF Working group
PP. HEAD
Deputy Head




Deputy Minister of Planning and Investment
Tran Duy Dong

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Guidance on implementing business investment projects according to provisions of law
(enclosed with Official Dispatch No. 2541/CV-TCT dated April 15, 2022 of the Prime Minister’s Special Working Group)

I. Contents related to procedures for investor selection, investment guideline approval and investment registration certificate issuance

1. Concerning an investment project to build headquarters and offices or carry out commercial works, is it necessary to meet the condition for determining whether the investment project uses land that the project belongs to a residential housing development plan or program in accordance with regulations of law on housing as prescribed in Article 11 of Decree No. 25/2020/ND-CP?  

Answer:

According to the provisions in clause 3 Article 11 of Decree No. 25/2020/ND-CP dated February 28, 2020 elaborating certain articles of the Law on Procurement in terms of investor selection [1], a land-based investment project is subject to investor selection in accordance with the provisions of this Decree if the project belongs to a residential housing development plan or program in accordance with regulations of law on housing; an urban development program (if any) in accordance with regulations of law on urban development.

Thus, according to the above regulations, the condition that the project belongs to a residential housing development program or plan only applies in cases where the investment objective or activity of the land-based project is housing construction; therefore, this condition is not applied to investment projects to build headquarters, offices, or carry out commercial works of which investment objectives or activities are not housing construction.

2. Are investment projects to build and trade industrial park infrastructure subject to auctions of land use rights (LURs) or bidding for investors?

Answer:

According to Appendix IX enclosed with Decree No. 15/2021/ND-CP dated March 03, 2021 of the Government elaborating certain regulations on management of construction investment projects, an investment project to build infrastructure of an industrial park or an export processing zone is classified as a multi-purpose construction project (not a civil engineering project). Thus, the project does not have to undergo bidding for selection of investors as specified in point b clause 1 Article 1 of Decree No. 25/2020/ND-CP [2].

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Thus, investment projects to build and trade infrastructure of industrial parks or export processing zones are not subject to auctions of LURs and bidding for investors as specified in Article 14b of Decree No. 43/2014/ND-CP dated May 15, 2014 of the Government elaborating certain articles of the Land Law [4].

If two investors or more in an investment project have submitted valid applications for project execution at one location, the investor selection shall comply with the provisions in clause 7 Article 29 of Decree No. 31/2021/ND-CP dated March 26, 2021 of the Government elaborating the Law on Investment.

Section 1 Chapter II of the Law on Bidding (Article 20, Article 22) provides for investor selection methods including competitive bidding and direct contracting, etc.; Article 21 of this Law provides for limited bidding which is applied in cases where packages have high technical requirements or involve special techniques that can only be satisfied by some bidders (not applicable in case of investor selection).

In addition, according to Article 13 and Article 16 of Decree No. 25/2020/ND-CP dated February 28, 2020 of the Government elaborating the Law on Bidding in terms of investor selection [5], the preliminary evaluation of the capacity and experience of investors applying for project execution for determining the number of investors that apply for the project execution and are qualified in terms of the capacity and experience shall be a basis for following procedures for investor approval or organizing competitive bidding for investor selection.

The compulsory competitive bidding mentioned in this case is reasonable for the above-mentioned regulations in order to ensure the fairness, transparency and selection of investors qualified for project execution.

4. How is an investor selected among eligible investors under bidding laws when at least 02 (two) investors have submitted their proposals for an investment project specified in clause 7 Article 29 of Decree No. 31/2021/ND-CP?

Answer:

According to the provisions in clause 7 Article 29 of Decree No. 31/2021/ND-CP, in case an investment project is not subject to a LUR auction or bidding for investor selection but at least 02 investors have submitted valid applications for investment project execution at one location, the investment guideline approving authority shall consider granting approval for investment guidelines and assign a competent regulatory authority to select to apply the law on bidding to select an investor among the investors that have submitted valid applications.

In this case, the competent regulatory authority specifically determines the terms and conditions to be complied with according to the law on bidding and other laws, ensuring fairness, transparency and economic efficiency according to the provisions in Point b, Clause 2, Article 1 of Decree No. 25/2020/ND-CP.

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Answer:

Regulations on specialized agencies affiliated to the Provincial People's Committees, agencies affiliated to the Provincial People's Committees, and district-level People's Committees that prepare project proposals specified in Clause 2, Article 12 of Decree No. 25/2020/ND-CP [6] only apply to land-based investment projects that are not subject to investment guideline approval according to the provisions of investment law.

For land-based investment projects subject to investment guideline approval according to the provisions of investment law, Decree No. 31/2021/ND-CP shall be complied with.

Therefore, there is no contradiction between the regulations on agencies preparing project proposals according to Decree No. 25/2020/ND-CP and Decree No. 31/2021/ND-CP.

6.  What to do if there are at least two investors meet the preliminary requirements for capacity and experience, but then one investor requests in writing not to participate in bidding for project execution, and there is only one qualified investor left?

Answer:

The preparation, submission of applications, evaluation of investors’ capacity and experience and investor selection shall comply with the provisions in Article 13 and Article 16 of Decree No. 25/2020/ND-CP. 7 According to these regulations, the preliminary evaluation of the capacity and experience of investors applying for project execution for determining the number of investors that are qualified in terms of the capacity and experience shall be a basis for following procedures for investor approval or making competitive bidding for investor selection.

In case there are at least 02 interested investors who were qualified in terms of the capacity and experience, competitive bidding must be carried out to select investors for project execution,  regardless of the qualified investors’ rejections in writing.

7. In case there are at least two investors meet requirements of pre-qualification under Decree No. 30/2015/ND-CP, must the bidding documents be made in accordance with the provisions of Decree No. 30/2015/ND-CP or Decree No. 25/2020/ND-CP?

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According to Clause 3, Article 90, Decree No. 25/2020/ND-CP [8] and Point b, Clause 1, Article 7, Circular No. 09/2021/TT-BKHDT providing for the transition applicable to projects of which prequalification documents have been issued before the effective date of Decree No. 25/2020/ND-CP, the content of bidding documents is developed according to the provisions of Decree No. 30/2015/ND-CP and Circular No. 16/2016/TT-BKHDT dated December 16, 2016 of the Minister of Planning and Investment providing guidance on preparation of request for proposals, bidding documents for selection of investors carrying out land-based projects and provisions of law on land, housing, real estate business, investment and construction which are effective at the time of approval of bidding documents.

8. If the investors wish to participate in bidding for the land zone in which the project is executed to achieve an objective (e.g. packaging production) other than one of the project's objectives such as deciding approval for investment guidelines (e.g. garment processing), how will the bidding be organized?

Answer:

According to the provisions in clause 1 and clause 2 Article 29 of the Law on Investment, the investor selection by bidding shall be made after investment guideline approval.

According to the provisions in Article 12 of Decree No. 25/2020/ND-CP [9], if a project is subject to investment guideline approval under provisions of law on investment, the investment guideline approval decision shall be the written decision to approve the list of land-based investment projects as well. Pursuant to the investment guideline approval decision of the project under provisions of law on investment, the Planning and Investment Department shall cooperate with relevant agencies in determining preliminary requirements in terms of capacity and experience of investors, and reporting them to the Provincial People’s Committee for approval before disclosing the list of projects, etc.

Thus, in principle, the selection of investors in this case is made on the basis of the investment guideline approval decision.

In addition, pursuant to clause 2 Article 17 of the Law on Bidding, the bidding will be cancelled in case of “change in the investment objectives or scale recorded in the bidding documents or request for proposals”.

Therefore, it is required to consider specifically the actual situations that arise during the investor selection to have a basis for implementing the above regulations.

9. After the investment guideline decision is approved, will the Project List announced by Department of Planning and Investment or agency organizing bidding?

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According to the provisions of Clause 4, Article 12 of Decree No. 25/2020/ND-CP, [10] the Department of Planning and Investment or the Economic Zone Management Board shall announce the Project List.

10. According to the provisions in Article 10 of Decree No. 25/2020/ND-CP, international bidding shall be carried out if the total estimated cost of a project is at least 800 billion VND and at least two investors are qualified in terms of capacity and experience, including at least one foreign investor. Thus if the total estimated cost of a project is at least 800 billion VND, must the list of projects or the invitation for expression of interest (EOI) be made in both Vietnamese and English upon updating?

Answer:

According to clause 4 Article 4 of Decree No. 25/2020/ND-CP [11], in addition to the responsibility to publish the information specified in Clause 1.c of this Article, information about any land-based investment project whose total estimated cost (excluding cost of compensation, assistance and relocation, land levy, land rent) is at least 800 billion must be published on the Provincial People’s Committee’s website (if any) in both English and Vietnamese.

Pursuant to the regulation above, the invitation for EOI and the list of land-based investment projects must be published on the national bidding network system in both English and Vietnamese. Currently, English language is currently available on the system.

11. Are investment projects to build urban areas and residential areas with a population of less than 4.000 people or less than 20 hectares subject to the provisions of Point b, Clause 1, Article 1 of Decree 25/2020/ND-CP?

Answer:

According to point b clause 1 Article 1 of Decree No. 25/2020/ND-CP [12], the bidding for investor selection shall be made if investment projects use land for construction of urban areas; construction of civil works having one or more functions, including commercial housing; office buildings; commercial and services works.

Thus, investment projects that have land for construction of urban areas; construction of civil works serving one or multiple purposes, including commercial housing are carried out if the bidding is made according to the provisions in point b clause 1 Article 1 of Decree No. 25/2020/ND-CP mentioned above. Conditions for determination of land-based investment projects shall comply with the provisions in Article 11 of this Decree.

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Answer:

According to the provision in clause 1 Article 29 of Decree No. 31/2021/ND-CP, 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. Thus, this provision and related provisions in Articles 30, 31 and 32 of the Law on Investment are the basis for determination of the power to approve investment guidelines for projects having mixed objectives.

13. What other cases specified in Point d, Clause 4, Article 29 of the Law on Investment are not subject to auction or bidding according to the provisions of law?

Answer:

Other cases that are not subject to auction or bidding in accordance with the provisions of law are specified in point d clause 4 Article 29 of the Law on Investment, clause 2 and point dd clause 5 Article 29 of Decree No. 31/2021/ND-CP.

Thus, other cases that are not subject to LUR auctions or bidding for investor selection are those that are not subject to LUR auctions or bidding for investor selection in accordance with the provisions of law on land, bidding and related laws.

14. Is the investment guideline approval compulsory if a mineral extraction project is subject to mining right auction? The auction for mining rights (if any) has to be carried out before or after investment guidelines are approved?

Answer:

According to clause 1 Article 32 of the Law on Investment, the provincial People’s Committees shall grant approval for investment guidelines of investment projects with proposal for land allocation or lease by the State without auction or bidding and investment projects with proposal for land repurposing.

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The auction of mineral extraction rights shall be conducted according to the provisions in Article 16 of Decree No. 22/2012/ND-CP dated March 26, 2012 of the Government on auction of mineral extraction rights. Thus, applications for auction of mineral extraction rights do not require containing written approvals for investment guidelines.

15. If an investment project is included on the list of projects to encourage investment in agriculture and rural areas that was approved by the provincial People's Committee, does it have to obtain the investment guideline approval according to the Law on Investment or it only needs to comply with point b clause 1 Article 16 of Decree No. 57/2018/ND-CP (in case only one enterprise submitted the application)?

Answer:

According to clause 2 Article 156 of the Law on Promulgation of legislative documents, if various legislative documents contain different regulations on the same issue, the superior document shall apply. Thus, it is required to follow investment guideline approval procedures under the provisions of the Law on Investment if projects to encourage investment in agriculture and rural areas are subject to investment guideline approval according to the provisions in Articles 30, 31 and 32 of the Law on Investment.

16. Regarding a project subject to investment guideline approval by the Provincial People’s Committee, if the project has had the LUR auction plan approved by a competent regulatory agency and the auction has not been conducted according to provisions of law on land before January 01, 2021, or the project is subject to LUR auction which is being conducted according to provisions of law on land and the auction result is not available before January 01, 2021, is it required to follow procedures for approval for both investment guidelines and investors after a decision to recognize the successful LUR auction is issued?

Answer:

Article 120 of Decree No. 31/2021/ND-CP provides for procedures applicable to projects that have had the LUR auction plans approved by competent regulatory agencies and the auctions have not been conducted yet according to provisions of law on land before January 01, 2021, or projects subject to LUR auctions that are being conducted according to provisions of law on land and the auction result is not available before January 1/1/2021.

According to the provision in clause 3 Article 120 of Decree No. 31/2021/ND-CP, if the project is not subject to approval for its investment guidelines by the National Assembly or Prime Minister as prescribed in Articles 30 and 31 of the Law on Investment, the investor shall follow the procedures for issuance of the investment registration certificate (if any) without having to follow the procedures for investment guideline approval according to regulations of the Law on Investment and this Decree.

17. Is it necessary to follow investment guideline approval procedures for projects with proposal for land allocation or lease by the State by auction or bidding of the provincial People’s Committees ?

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According to clause 2 Article 29 of the Law on Investment, the selection of investors carrying projects in accordance with the provisions in points a and b clause 1 of this Article shall be done after investment guideline approval, except in cases where investment projects are not subject to investment guideline approval.

According to the provisions in clause 2 Article 29 of Decree No. 31/2021/ND-CP dated March 26, 2021 of the Government on elaboration of some articles of the law on investment, 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 investor selection through LUR auction, bidding for investor selection, or approval for both investment guidelines and investor.

According to the provisions in point a clause 1 Article 32 of the Law on Investment, the provincial People’s Committees shall grant approval for investment guidelines of investment projects with proposal for land allocation or lease by the State without auction or bidding or receipt of LURs by transfer and investment projects with proposal for land repurposing.

Pursuant to the regulations above, investment projects with proposal for land allocation or land lease by the State through LUR auction or bidding for investor selection that do not fall under the provisions in Articles 30 and 31 and points b, c and d clause 1 Article 32 of the Law on Investment are not subject to investment guideline approval before LUR auction or bidding for investor selection.

18. According to clause 5 Article 29 of Decree No. 31/2021/ND-CP, before approving investment guidelines, it is required to have written permission for receipt of LURs of agricultural land by conveyance, capital contribution or lease to carry out investment projects for non-agricultural manufacture and business in accordance with provisions of law on land.

According to Article 73 of the Land Law, developers of projects for manufacture and business are entitled to come to agreements on receipt of LURs by conveyance, capital contribution or lease to carry out the projects after identifying the project developers (after approval for investment guidelines and investors).

If so, does Clause 5, Article 29 of Decree No. 31/2021/ND-CP conflict with the provisions in Article 73 of the Land Law?

Answer:

Point b clause 5 Article 29 Article 31 of Decree No. 31/2021/ND-CP provides for “competent regulatory agencies shall grant permission for receipt of LURs of agricultural land by conveyance, capital contribution or lease to carry out investment projects for non-agricultural manufacture and business in accordance with provisions of law on land”.

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Article 73 of the Land Law solely provides general regulations on the use of land whose LURs received by conveyance, capital contribution or lease for manufacture and business (no regulations on conditions for receipt of LURs of agricultural land by conveyance, capital contribution, or lease to implement investment projects for non-agricultural production and business).

Thus, the provisions in point b clause 5 Article 29 of Decree No. 31/2021/ND-CP are completely consistent with Article 193 and are not contradictory to Article 73 of the Land Law.

19. For a land-based investment project (large area, multiple purposes, including: urban areas, services, commerce, sports, golf courses, etc.) Is it necessary to separate the golf course project into an independent project?

Answer:

The requirement for submitting proposal for separating the golf course project included in a project to build a recreational-tourism area with a golf course into an independent project as prescribed in Clause 2, Article 10 of Decree No. 52/2020/ND-CP on golf course investment and business has been repealed in Clause 1, Article 107 of Decree No. 31/2021/ND-CP.

20. How is the appraisal of the project's conformity with national planning, regional planning, or provincial planning carried out in cases where the province's master plan for socio-economic development up to 2020 has expired and the master plan for the next phase has not been approved because many specialized plans must be integrated into the master plan?

Answer:

The appraisal of an investment project's conformity with planning as specified in point a clause 3 Article 33 of the Law on Investment shall comply with clause 7 Article 31 of Decree No. 31/2021/ND-CP. Accordingly, in cases where national planning, regional planning, and provincial planning has not been decided or approved according to the provisions of the Planning Law, the assessment of the investment project's conformity with those planning will be carried out on the basis of assessing the conformity of the investment project with the planning according to the provisions of point c, clause 1, Article 59 of this Law on the implementation of planning integrated into the national planning, regional planning or provincial planning and the Government's Resolution promulgating the List of planning integrated into these planning.

In cases where planning integrated into national planning, regional planning, or provincial planning expires before the national planning, regional planning, or provincial planning is decided or approved, the duration of that planning will be extended until the national planning, regional planning, or provincial planning is decided or approved.

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Answer:

According to the provisions in clause 3 Article 33 of the Law on Investment, the appraisal of proposal for investment guideline approval includes assessment of the investment project's conformity with the national planning, regional planning, provincial planning, etc. The content of the provincial planning has been specifically determined in Article 28 of Decree No. 37/2019/ND-CP dated May 7, 2019 elaborating certain articles of the Law on Planning. Accordingly, land use planning has been integrated into provincial planning and includes content on arrangements for land distribution and zoning by functional areas and by land types to each district-level administrative division, etc. Therefore, when assessing the project's conformity with the provincial planning in Clause 3, Article 33 of the Investment Law, the contents of conformity with the land use planning are included.

According to the provisions in clause 7 Article 31 of Decree No. 31/2021/ND-CP, in cases where national planning, regional planning, or provincial planning has not been decided or approved according to the provisions of the Planning Law, the assessment of the investment project's conformity with those planning will be carried out on the basis of assessing the conformity of the investment project with the planning according to the provisions of point c, clause 1, Article 59 of this Law on the implementation of planning integrated into the national planning, regional planning or provincial planning and the Government's Resolution promulgating the List of planning integrated into these planning.

22. According to Article 65 of the Mineral Law, in case of a project to explore and exploit minerals belonging to a mineral exploration and exploitation area, the Ministry of Natural Resources and Environment shall decide on Bauxite exploration and exploitation before the project is approved or licensed. How is the appraisal of estimated land area carried out when approving investment guidelines of the approved project to explore and exploit minerals belonging to the Bauxite exploration and exploitation area?

Answer:

The appraisal of proposal for investment guideline approval, including assessment of the investment project’s conformity with national planning, regional planning, provincial planning, estimated land area, capacity to meet conditions for land allocation, land lease, etc. shall comply with the provisions in clauses 3 and 4 Article 33 of the Law on Investment.

Regarding this content, when approving investment guidelines of a project to explore and exploit minerals belonging to a mineral exploration and exploitation area, it is required to consider the requirements and conditions for implementing the investment project according to the relevant regulations in Article 65 Law on Minerals, Article 3 and Article 8 of Decree No. 51/2021/ND-CP dated April 1, 2021 on mineral management in national mineral reserve areas.

23. What regulations have to be followed when making lists of projects at risk of adverse impact on the environment serving project appraisal and project technology appraisal according to the provisions of Point dd, Clause 3, Article 33 of the Law on Investment and Point b, Clause 2, Article 13 of the Law on Technology Transfer?

Answer:

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24. According to regulations, enquired authorities shall give response and take responsibility for their opinions; if an authority fails to give any opinion, it is considered that it concurs with the contents. This is impractical because the provincial People’s Committee can still disagree, in which case re-appraisal will take a lot of time.

Answer:

According to point b clause 2 Article 6 of Decree No. 31/2021/ND-CP, the enquired authorities shall give response by the prescribed deadline and take responsibility for their opinions within their functions and duties; if an authority fails to give any opinion by the aforementioned deadline, it is considered that it concurs with the contents under its management.

Thus, it is required that the People’s Committees of provinces directs Departments and local authorities of the provinces to improve the effectiveness of coordination in the process of enquiring and giving opinions on the investment project appraisal by the prescribed deadline according to the provisions of the Law on Investment and Decree No. 31/2021/ND-CP.

25. What are other documents included when determining the right to use a location to carry out the investment project according to the provisions of Point dd, Clause 1, Article 33 of the Law on Investment?

Answer:

According to the provisions in point dd clause 1 Article 33 of the Law on Investment, an application for approval for investment guidelines of an investment project proposed by an investor includes a copy of the document regarding the LURs or other document identifying the right to use the location for execution of the investment project if the project does not require the State to allocate or lease out land or to permit land repurposing.

According to the provisions in Article 189 of the Civil Code, right to use means the right to exploit the uses of, and to enjoy the yield and income derived from, property; The right to use may be transferred to another person upon an agreement or as prescribed by law. Accordingly, the right to use the premises is specified in real estate donation contracts (Article 459 of the Civil Code), house lease contracts, contracts for house lease for other purposes (Article 472 of the Civil Code), contracts for borrowing property (Article 494 of the Civil Code), contracts of LURs (Article 500 of the Civil Code), etc.

Pursuant to the regulations above, the right to use the location will be shown on different documents according to each specific case. Thus, it is required to base on the documents and documents prescribed by the Civil Code to consider the investor's right to use the location.

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Answer:

According to the provisions of Clause 4, Article 29 of the Law on Investment, approval of both investment guidelines and investor is granted in cases where the investor has land use rights. Therefore, in case the company is an investor but does not have land use rights, there is no basis to approve both investment guidelines and investor of the project.

27. Is the investor's ability to meet financial conditions as prescribed in Point a, Clause 2, Article 14 of Decree No. 43/2014/ND-CP considered before land allocation or at the time of investment guideline approval.

Answer:

The approval of investment guidelines under the provisions of the Law on Investment and land allocation under the provisions of the Land Law is independent procedures.

Regarding the investment guideline approval, according to the provisions in clause 4 Article 33 of the Law on Investment, contents of appraisal of proposal for approval for both investment guidelines and investor include the ability to satisfy the conditions for land allocation or land lease in the case of land allocation or land lease without auction of the land use right or bidding for investor selection; the ability to satisfy the conditions for land repurposing if the project involves land repurposing.

According to the provisions in clause 8 Article 31 of Decree No. 31/2021/ND-CP, contents of appraisal of the proposal for approval for both investment guidelines and investor include: the contents in Clause 4 Article 33 of the Law on Investment; legal bases and conditions for investor approval prescribed in Clause 1 Article 29 of the Law on Investment and Article 29 of this Decree; assessment of satisfaction of conditions in accordance with regulations of law on construction, housing, urban development and real estate business (for projects on investment in residential housing and urban area construction and real estate business).

Pursuant to the regulations above, the project appraisal agency shall consider the investment project's ability to meet the conditions for land allocation, land lease, or land repurposing at the time of investment guideline approval. Specific conditions for persons whose land is received from the State by allocation, lease or permission for repurposing for carrying out investment projects are prescribed in Article 14 of Decree No. 43/2014/ND-CP.

28. The consideration of eligibility requirements for project developers according to the provisions of the Housing Law and Land Law during the housing project investment guideline appraisal process is given in what manner, as investment laws and guidelines for the Law on Bidding in terms of investor selection only specify requirements related to the capacity and experience of investors, without addressing this content?

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Answer:

- Point c clause 8 Article 31 of Decree No. 31/2021/ND-CP provides for contents of appraisal of the proposal for approval for both investment guidelines and investor including assessment of satisfaction of conditions in accordance with regulations of law on construction, housing, urban development and real estate business (for projects on investment in residential housing and urban area construction and real estate business).

- Point a clause 3 Article 9 of Decree No. 99/2015/ND-CP [13] provides for contents of enquiry as to appraisal of eligibility requirements for project developers by competent regulatory agencies.

- The form of bidding documents under Circular No. 09/2021/TT-BKHDT dated November 16, 2021 of the Ministry of Planning and Investment providing guidance on the implementation of Decree No. 25/2020/ND-CP dated February 28, 2020 elaborating certain Articles of the Law on Bidding in terms of investor selection has provided guidelines for requirements prescribed in laws on land, housing and real estate business including investor selection criteria.

Therefore, it is required to consider the eligibility requirements for selected investors in investment projects according to the above regulations.

29. Clause 7 Article 29 of Decree No. 31/2021/ND-CP provides for: If at least two investors submit valid applications for investment project execution at one location, investment registration authority shall follow the procedures for investment guideline approval in the form of bidding for investor selection. However, if the project is not included in the approved list of projects subject to land expropriation according to provisions of law on land (such as mixed residential and commercial projects), is it added to the list of projects subject to land expropriation approved by the provincial People's Council according to Article 62 of the Land Law 2013? Is the land cleared by the State?

Answer:

The projects that are subject to land expropriation for socio-economic development in the national/public interest are prescribed in Article 62 of the Land Law. Accordingly, Article 62 does not provide for cases of land expropriation for carrying out mixed residential and commercial projects.

30. Article 52 of the Land Law provides for that the basis for land repurposing is the estimated land area of the project. Thus, the Land Law prescribes that the project must be subject to guideline approval in advance before deciding on land repurposing. However, clause 4 Article 29 of the Law on Investment lays down that land must be converted into homestead land before developing guidelines. Is it contradictory to the provisions in Article 52 of the Land Law?

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Clause 4 Article 29 of the Law on Investment provides regulations on approval of both investment guidelines and investors without LUR auctions or bidding for investor selection in cases where the investors have LURs (no regulations on converting land into homestead land before investment guideline approval).

Previously, according to the provisions of Clause 1, Article 23 of the Housing Law (amended at Point c, Clause 1, Article 75 of the Investment Law), if investors have lawful rights to use homestead land and other types of land and are permitted by competent authorities to convert them to homestead land, such land can also be used for execution of commercial housing projects.”

However, this regulation has been amended in Article 4 of Law No. 03/2022/QH15 dated January 11, 2022. Accordingly, the requirement "other types of land must be permitted by competent regulatory agencies to be converted to homestead land" has been abolished. And, Article 4 of Law No. 03/2022/QH15 dated January 11, 2022 stipulates the following procedures: After the competent authority grants an approval for both investment guidelines and the investor as per the investment law, the investor shall apply for land repurposing if so required by the project and fulfil the financial obligations as per the land law.

31. If land-based non-agricultural production and business projects are not subject to land expropriation by the state (such as gas stations, warehouses, factories, shopping centers, etc.), and the investors have land use rights through written agreements, memorandums or contracts for future sale or purchase between individuals holding land title and enterprises requesting project execution, are they qualified for investment guideline approval?

 Answer:

According to the provisions of Point d, Clause 2, Article 31 of Decree No. 31/2021/ND-CP, the investor must submit a valid copy of the competent People’s Committee’s written approval for receipt of LURs by conveyance, capital contribution or lease for project execution and valid copies of other documents containing agreement on use of location for project execution in the case of proposal for approval for both investment guidelines and investor with regard to the investor receiving LURs of agricultural land by conveyance, capital contribution or lease for execution of the project on non-agricultural production or business as prescribed in Point b Clause 4 Article 29 of the Law on Investment.

32. The approval for investment guidelines of a housing development and business project that is not included in housing development programs, plans, or urban development programs of a province is difficult because the Provincial People's Committee must develop a housing development program of the province (including both urban and rural areas) for each period of 5 years and 10 years or longer and submit it to the People's Council at the same level for adoption before approval according to the provisions in Article 169 of the Housing Law.

Answer:

According to the provisions of point e, clause 3, Article 33 of the Law on Investment, the content of appraisal of proposal for investment guideline approval includes assessment of the investment project’s conformity with the objectives and orientation of urban development, housing development programs and plans, etc.

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33. The procedures for approving investment guidelines of urban area projects and urban beautification projects that are subject to land expropriation according to Article 62 of the Land Law, but are not yet included in the list of land expropriation will be followed in the local context, does the Provincial People's Council only adopt the list of land expropriation for projects whose investment guidelines have been approved?

Answer:

Clause 3 Article 45 of the Land Law provides for “The Provincial-level People’s Committees shall submit the lists of projects subject to land expropriation specified in Clause 3, Article 62 of this Law to the People’s Councils at the same level for adoption, before approving the district-level annual land use plans”.

Previously, according to the provisions in clause 6 Article 56 of Circular No. 29/2014/TT-BTNMT dated June 2, 2014 providing detailed regulations on establishment and adjustment of land use planning and plans, one of the district-level annual land use planning tasks was to determine the scale and location of construction works, projects, etc. using land for the purposes specified in Articles 61 and 62 of the Land Law to serve land expropriation. For projects not funded by the state budget, written investment guideline approvals from competent regulatory agencies are required.

However, this regulation has been amended in Clause 6, Article 46 of Circular No. 01/2021/TT-BTNMT dated April 12, 2021 of the Ministry of Natural Resources and Environment providing technical regulations on development and adjustment of land use planning and plans (replacing Circular No. 29/2014/TT-BTNMT). Accordingly, it is required to have written investment guideline approvals for projects that are not funded by the state budget are required has been abolished.

Thus, land laws do not require that the lists of projects subject to land expropriation must be adopted after the projects’ investment guidelines have been approved.

34. What are the documents proving that the land has been (or has not been) cleared (if any), documents proving that the project is not included in the list of projects subject to land expropriation adopted by the provincial People's Council?

Answer:

According to the provisions in Clause 3 Article 45 of the Land Law, “The Provincial-level People’s Committees shall submit the lists of projects subject to land expropriation specified in Clause 3, Article 62 of this Law to the People’s Councils at the same level for adoption, before approving the district-level annual land use plans”;

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It is required to base on the list of projects subject to land expropriation according to the above regulations to identify projects that are not on the list of projects subject to land expropriation.

35. What are the procedures for approving investment guidelines of production and business projects whose land is directly leased from the State in industrial parks?

Answer:

According to the provisions in clause 2 Article 32 of the Law on Investment, the investment guidelines of the investment projects in Points a, b and d Clause 1 of this Article executed in industrial parks, export-processing zones, hi-tech zones and economic zones in conformity with planning approved by competent authorities shall be approved by management boards of such industrial parks, export-processing zones, hi-tech zones and economic zones.

Thus, in case of direct lease of land from the State for execution of investment projects in industrial parks, it is required to consider executing in accordance with the above regulations.

36. What are procedures for execution of projects subject to land allocation, land lease or permission for land repurposing of households and individuals that are not subject to written approval by the provincial People's Committees according to the provisions in Point a, Clause 1, Article 32 of the Law on Investment? In case a business household leases land for production investment (excluding the area of the land) or trade in services (with an area of less than 0.5 hectares), is it required to develop investment guidelines or only follow land procedures?

Answer:

According to the provisions in point a clause 1 Article 32 of the Law on Investment, the provincial People’s Committees shall grant approval for investment guidelines of investment projects with proposal for land allocation or lease by the State without auction or bidding or receipt of LURs by transfer and investment projects with proposal for land repurposing, except for projects with proposal for land allocation, land lease and permission for land repurposing of households and individuals that are not subject to written approval by the provincial People's Committees

According to the provisions in point a clause 2 Article 59 of the Land Law, it is required to have written approvals by the provincial People’s Committees before deciding to lease out land or grant permission to convert agricultural land into commercial land with the area of 0,5 ha or more to individuals and households.

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37. Is the appraisal of estimated land area in the period of investment guideline approval made by the Departments of Natural Resources and Environment?

Answer:

- According to the provisions in clauses 3 and 4 Article 33 of the Law on Investment, the content of appraisal of the investment guideline approval, including the assessment of estimated land area and ability to satisfy the conditions for land allocation or land lease in the case of land allocation or land lease without LUR auction or bidding for investor selection; the ability to satisfy the conditions for land repurposing if the project involves land repurposing, is one of the contents of appraisal when approving investment guidelines.

According to the provisions in clause 2 Article 36 of the Law on Investment, the investment registration authority shall send relevant documents to relevant regulatory agencies to seek their opinions about the contents specified in Article 33 of this Law.

Thus, the Departments of Natural Resources and Environment shall appraise the above contents within their jurisdiction when being enquired about the appraisal of investment guidelines.

38. The provincial People's Councils have authority to decide forest repurposing guidelines, while the provincial People’s Committees have authority to approve investment guidelines according to the provisions of the Investment Law. Is the authority to approve investment guidelines contradictory to the authority to approve forest repurposing?

Answer:

Procedures for approving investment guidelines and procedures for approving forest repurposing are independent procedures, with different content, requirements, order, authority and state management objectives. Thus, the authority to decide forest repurposing guidelines under the provisions of the Law on Forestry and Decree No. 83/2020/ND-CP does not contradict the authority to approve investment guidelines under the Law on Investment.

39. What are documents proving financial capacity of investors that are newly formed organizations? How to make sure the time of project proposal does not coincide with the financial reporting period?

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Point c clause 1 Article 33 of the Law on Investment provides for: “Document(s) proving the financial capacity of an investor including at least one of the following documents: the investor’s financial statements for the last two years; commitment of a parent company to provide financial support; commitment of a financial institution to provide financial support; guarantee for the investor’s financial capacity; other document proving the investor’s financial capacity”.

Thus, the investor that is a newly formed organization may submit documents proving its financial capacity such as commitment of a parent company to provide financial support; commitment of a financial institution to provide financial support; guarantee for the investor’s financial capacity; other document proving the investor’s financial capacity.

40. For investment projects with a large total investment capital, there is no requirement that the investor's financial statements must be independently audited, causing difficulties in verifying the authenticity of the investor's financial statements.

According to point c clause 1 Article 33 of the Law on Investment, an application for approval for investment guidelines of an investment project proposed by an investor includes document(s) proving the financial capacity of the investor (including at least one of the following documents: the investor’s financial statements for the last two years; commitment of a parent company to provide financial support; commitment of a financial institution to provide financial support; guarantee for the investor’s financial capacity; other document proving the investor’s financial capacity).

Point a clause 1 Article 6 of Decree No. 31/2021/ND-CP provided for: “Every investor shall take legal responsibility for the legitimacy, accuracy and truthfulness of their application and documents submitted to competent authorities”.

The independent audit of financial statements shall comply with the provisions of law on accounting and auditing.

Thus, it is required to consider the investor’s financial statements according the regulations above and provisions of law on accounting and auditing.

In addition, in cases where it is necessary to determine the basis for tax calculation, the competent regulatory authority may require independent assessment of the value of the investment capital in accordance with the provisions of Article 45 of the Law on Investment and Article 28 of Decree No. 31/2021/ND-CP.

41. What are other documents proving financial capacity of an investor under the provisions of point c clause 1 Article 33 of the Law on Investment of 2020?

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The documents proving financial capacity are specified in point c clause 1 Article 33 of the Law on Investment. An investment registration authority is required to, based on the actual documents of an investment project, determine other valuable documents proving the investor's financial capacity to carry out such investment project in addition to documents such as the investor’s financial statements for the last two years; commitment of a parent company to provide financial support; commitment of a financial institution to provide financial support; guarantee for the investor’s financial capacity.

42. The Law on Construction, the Law on Real Estate Business, the Law on Bidding, and the Law on Urban Planning 2009 all stipulate that the project developer is the subject directly carrying out a project. However, Decree No. 31/2021/ND-CP, Circular No. 03/2021/TT-BKHDT and Decree No. 25/2021/ND-CP do not provide regulations on project developers. How are the rights, obligations and responsibilities of a project developer during the project execution (after the investor is selected) determined?

Answer:

Article 7 of the Law on Construction (amended in Clause 4, Article 1 of Law No. 62/2020/QH14) elaborates the determination of project developers for projects funded by public investment, projects funded by non-public state investment, PPP projects and projects funded by other sources. Accordingly, the project developer of a project, which is funded by lawful investment sources of organizations and individuals, (project funded by other sources), for which the law on investment requires selection of investor for project execution, is an investor approved by a competent regulatory authority. Where multiple investors involve in the project, they may establish an organization or authorize a qualified investor to act as the project developer. If relevant laws stipulate the selection and certification of project developer, such selection and certification of project developer must meet relevant conditions and comply with relevant laws.

According to the provisions of Point d, Clause 3, Article 4 of the Law on Investment, execution of construction, housing and urban area projects is in compliance with the Law on Construction, Law on Housing and Law on Real Estate Business after a competent authority grants approval for the investment guidelines or adjustment to the investment guidelines in accordance with regulations of the Law on Investment.

Clause 3 Article 42 of the Law on Investment provides for: Investors shall comply with the provisions of this Law and the laws on planning, land, environment, construction, labor and fire prevention and fighting, other relevant laws, written approval for investment guidelines (if any) and the investment registration certificate (if any) during execution of their investment projects.

Thus, it is required to exercise the rights, obligations and responsibilities of a project developer during the project execution after the investor is approved by a competent regulatory agency according to investment laws in a manner that complies with the above regulations.

43. Clause 1 Article 11 and Article 12 of Decree No. 25/2020/ND-CP of the Government [14] provide for requirements for determination of a land-based project “the project must be on the list of projects subject to land expropriation that are approved according to the provisions of law on land”. And, the determination of a land-based project subject to investor selection may be based on the zoning planning of 1/2000, 1/5000.

However, Land Law does not specify requirements, legal basis, documentation and procedures for approval for the list of projects requiring land expropriation by the People's Councils of provinces. Therefore, projects that are proposed on the basis of the zoning planning of 1/2000 and 1/5000 will run into difficulties during consolidation and submission for approval by the People's Councils of provinces (the basis for consolidation, the time of consolidation, the basis for determining parameters of projects requiring land expropriation, etc.), and will not meet requirements for determination of land-based projects to decide on investment guidelines.

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According to the provisions of Article 11 of Decree No. 25/2020/ND-CP [15], two of the requirements for determining a land-based investment project as the basis for investor selection include: the project is on the list of projects subject to land expropriation that are approved according to provisions of law on land or located in a land area under management of the State; and the project is appropriate for the socio-economic development plan, or the construction planning has a ratio of 1/2.000 or 1/500 (if any), etc.

According to the provisions in Clause 3 Article 45 of the Land Law, for projects falling under the cases prescribed in clause 3 Article 62 of the Land Law, the Provincial-level People’s Committees shall submit the lists of projects subject to land expropriation to the People’s Councils at the same level for adoption, before approving the district-level annual land use plans. The formulation of district-level annual land use plans has been specifically guided in Circular 01/2021/TT-BTNMT. A district-level annual land use plan shall show the scale and location of land-based works and projects according to the provisions of Article 61 and Article 62 of the Land Law to serve the land expropriation in the plan year.

The conformity with construction planning with a scale of 1/2.000 or a scale of 1/500 (if any) as prescribed by the above regulations shall be required when making a list of land-based investment projects, and not be required when making a list of projects subject to land expropriation.

44. What are the procedures for investment and selection of investors in tourism projects combined with real estate business (villas, apartments for sale or rent for residential purposes, long-term land use) or tourism projects that have been granted investment approval and are proposed for repurposing or have various purposes subject to different land use periods (50 years or long-term use)?

Answer:

- According to the provisions in clause 1 Article 29 of Decree No. 31/2021/ND-CP, 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.

- According to the provisions in clause 1 Article 11 of Decree No. 25/2020/ND-CP, [16] if a project has multiple functions, the determination of a land-based investment project shall be based on the primary work of the project or primary work with the highest class in case the project consists of multiples primary works under provisions of law on construction.

It is required to base on the above regulations to determine appropriate investment procedures for each specific case.

45. How are projects of secondary investors in industrial clusters managed if these projects are not subject to the issuance of investment registration certificates as prescribed in Clauses 2 and 2? Clause 4, Article 37 of the Law on Investment?

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According to the provisions of clause 3 Article 42 of the Law on Investment, investors shall comply with the provisions of this Law and the laws on planning, land, environment, construction, labor and fire prevention and fighting, other relevant laws, written approval for investment guidelines (if any) and the investment registration certificate (if any) during execution of their investment projects.

Thus, it is required to manage projects of secondary investors in industrial clusters not subject to issuance of investment registration certificates according to the regulations above.

II. Contents related to execution of investment projects

46. Can a successful bidder (selected investor) as prescribed in Decree No. 25/2020/ND-CP receive land without LUR auction?

Answer:

According to the provisions of clause 2 Article 60 of Decree No. 25/2020/ND-CP [17], after the compensation, support and resettlement amount has been paid, the procedures for land allocation/land lease specified in Clause 3 Article 68 of the Government’s Decree No. 43/2014/ND-CP dated May 15, 2014 elaborating certain articles of the Land Law shall apply when allocating or leasing out land to successful bidders or enterprises established by successful bidders.

According to the provisions of point b clause 4 Article 29 of Decree No. 31/2021/ND-CP, the successful bidder (The investor that wins the auction or bid) shall follow procedures for land allocation or land lease in accordance with provisions 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 results or decision on approval for investor selection results.

Thus, successful bidders may receive land in accordance with the above regulations.

47. Can an investor that has been granted investment guideline approval establish a wholly-owned subsidiary to execute and manage a project?

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Article 52 of Decree No. 31/2021/ND-CP provides for the adjustment to investment projects in case of using LURs and/or property affixed to land belonging to the investment projects for capital contribution to enterprises. According to the provisions of clause 7 of this Article, if a business organization is established to execute the investment project that has had its investment guidelines approved or has been issued with the investment registration certificate, the investor and business organization shall satisfy the conditions set out in Clause 2 of this Article. The business organization established by the investor is entitled to inherit the investor’s rights and obligations to execute the investment project. The investor establishing the business organization shall follow the procedures for project adjustment in accordance with the corresponding regulations prescribed in Clause 5 or 6 of this Article.

48. Requiring investors to complete the acceptance of construction works to have their deposit returned according to the provisions of Point b, Clause 9, Article 26 of Decree No. 31/2021/ND-CP causes difficulties for investors because the acceptance of construction works requires a lot of costs, cumbersome procedures and takes a lot of time according to construction regulations?

Answer:

According to the provisions in point b clause 9 Article 26 of Decree No. 31/2021/ND-CP, the refund and adjustment of a guarantee amount, and termination of the guarantee obligation shall be carried out in a manner that the remaining deposit and interest (if any) arising from the deposit shall be refunded or the guarantee for deposit payment obligation shall be invalidated at the time when the investor accepts the construction works.

The requirement to complete the acceptance of construction works as a basis for refunding the deposit according to the above regulations is necessary to ensure that the investment project is executed on schedule committed by the investor.

49. What is the deposit period in case of increasing capital? and what to do when the investor fails to make payment or delays paying additional deposit in case of increasing the investment capital of the project requiring deposit according to the provisions of the Law on Investment and Decree No. 31/2021/ND-CP dated March 26, 2021?

Answer:

- According to the provisions of clause 5 Article 26 of Decree No. 31/2021/ND-CP, time and duration of guaranteeing project execution shall be as follows:

a) The investor shall pay the deposit or submit the credit institution’s guarantee certificate after being issued with the decision on approval for both investment guidelines and investor or decision on investor approval or decision on approval for bidding result and prior to implementing the compensation, support and resettlement plan approved by a competent authority (if the investor does not advance the payment for compensation, support and resettlement) or by the time of issuing the decision on land allocation or land lease or land repurposing (if the investor does not advance compensation, assistance or relocation payments or the investor is selected to execute the project through a land use right auction and is leased out land by the State and pays land rents on an annual basis);

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According to the provisions in point e clause 9 Article 26 of Decree No. 31/2021/ND-CP, regarding a domestic investor that has their investment guidelines approved and is not required to obtain the investment registration certificate, when the project not subject to adjustment of its investment guidelines is adjusted as prescribed in this Decree and the adjustments change any content of the project execution guarantee agreement, the investor shall send a written notification to the investment registration authority prior to the adjustment. The investment registration authority and investor shall adjust the project execution guarantee agreement in conformity with the adjustments to the investment project.

Pursuant to the regulations above, if the project is subject to investment guideline approval, the deposit shall be paid after a decision to adjust investment guidelines is issued according to the provisions in clause 5 Article 26 of Decree No. 31/2021/ND-CP. If the project is not subject to investment guideline adjustment, the deposit shall be paid according to the agreement principles specified in point e, clause 9, Article 26 of Decree No. 31/2021/ND-CP.

- Article 19 of Decree No. 122/2021/ND-CP dated December 28, 2021 of the Government on penalties for administrative violations against regulations on planning and investment provided for violations against regulations on investment project execution in Vietnam, including failure to pay a deposit or obtain a bank guarantee for deposit payment obligation for execution of an investment project with proposal for land allocation or lease by the State or grant of permission for land repurposing unless otherwise prescribed by law; failure to follow procedures for guaranteeing of execution of an investment project on prescribed schedule; increasing the investment capital of a project without paying an additional amount of deposit or credit institution’s deposit payment guarantee when requested in writing by the investment authority; making an unlawful, untruthful, inaccurate application for reduction in the costs of guarantee for project execution.

In addition, according to the provisions in point dd clause 2 Article 48 of the Law on Investment, the investment registration authority shall terminate an investment project in part or in full in the case where the investor fails to pay the deposit or obtain a bank guarantee as prescribed by law if project execution security is required.

Therefore, it is required to consider applying this regulations for cases where investors fail to make payment or delay payment of additional deposit when increasing investment capital of projects.

50. If a project has an investor who meets the capacity and experience requirements and is approved, is the investor exempt from depositing according to point b, clause 1, Article 43?

Answer:

According to the provisions in point b clause 1 Article 43 of the Law on Investment, the investor who wins bidding for execution of a land-based investment project shall not be required to pay a deposit or have a bank guarantee for execution of the investment project with proposal for land allocation or land lease by the State.

According to the provisions in Article 13 of Decree No. 25/2020/ND-CP [18], the preliminary evaluation of the capacity and experience of investors applying for project execution for determining the number of investors that are qualified in terms of the capacity and experience shall be a basis for following procedures for investor approval or making competitive bidding for investor selection.

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51. Are projects that are permitted by the State for land repurposing serving the execution of investment projects on the basis of receiving land use rights and property affixed to land by conveyance from other users and projects whose land is leased on the basis of receiving agricultural land by conveyance (without approved site clearance plans) to serve the execution of non-agricultural projects exempt from depositing as prescribed in point d, clause 1 of Article 43? In case a deposit is required, can point a or b, Clause 7, Article 26 of Decree No. 31/2021/ND-CP be applied? When a project is behind schedule but its schedule has been extended by a competent authority, is it required to pay a deposit as prescribed in point c, clause 7, Article 26 of Decree No. 31/ 2021/ND-CP?

Answer:

According to the provisions in point d clause 1 Article 43 of the Law on Investment, the investor shall pay a deposit or have a bank guarantee for execution of an investment project with proposal for land allocation, land lease or grant of permission for land repurposing by the State, except for the case where the State allocates or leases out land to the investor for execution of an investment project on the basis of receipt of the land use rights and/or property affixed to land by conveyance from another land user.

Pursuant to the regulations above, the deposit is not exempt in case of land repurposing for execution of an investment project. Thus, the case of receiving LURs of agricultural land by conveyance to execute a non-agricultural production and business project is not subject to deposit exemption as prescribed in Point d, Clause 1, Article 43 of the Law on Investment because this project involves land repurposing.

Deposit payment as specified in Point a or b, Clause 7, Article 26 of Decree No. 31/2021/ND-CP applies in cases where the investor advances compensation, support or resettlement payments to a competent authority to implement the approved compensation, support or resettlement arrangement (except for cases where compensation, support or resettlement arrangements are not approved).

52. Company A has investment guidelines of its plastic factory project in an area of agricultural land approved. The current land user is individual B. Individual C is a member of Company A and has received land use rights by conveyance from B and has contributed capital with land use rights to Company A to execute the project. In this case, Company A does not receive the land use rights and/or property affixed to land by conveyance from other land users, but only members of Company A receive land use rights and/or property affixed to land by conveyance from other land users and contribute capital to Company A. In this case, does Company A have to pay a deposit or obtain a bank guarantee for deposit payment obligation?

Answer:

According to the provisions in point c clause 1 Article 43 of the Law on Investment, the investor shall pay a deposit or have a bank guarantee for execution of an investment project with proposal for land allocation, land lease or grant of permission for land repurposing by the State, except for the case where the State allocates or leases out land to the investor for execution of an investment project on the basis of receipt of the land use rights and/or property affixed to land by conveyance from another land user.

Thus, the deposit exemption as prescribed by the above regulations does not apply in cases of land repurposing when executing investment projects.

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53. Who has the authority to implement contents related to the obligation to guarantee project execution between the Provincial People's Committee and the investment registration authority related to the time of guaranteeing investment project execution; how to refund deposits or transfer deposits to the state budget?

Answer:

- The authority to pay a deposit has been prescribed in Articles 25 and 26 of Decree No. 31/2021/ND-CP. Accordingly, an investment registration authority is a regulatory agency having authority to make a deposit agreement with an investor. The Law on Investment and Decree No. 31/2021/ND-CP do not provide specific regulations on the authority to implement contents related to the obligation to guarantee project execution between the Provincial People's Committee and the investment registration authority. Responsibility for state management of investment shall comply with the provisions of Clause 4, Article 69, and Article 70 of the Law on Investment and Clause 3, Article 98 of Decree No. 31/2021/ND-CP.

- The refund of deposits and transfer of deposits to the state budget has been specifically stipulated in Clauses 9 and 10, Article 26 of Decree No. 31/2021/ND-CP.

54. According to Clause 4, Article 77 of the Law on Investment of 2020, if the investor adjusts the objectives or schedule for execution of an investment project or repurposes land after the effective date of this Law, the investor must pay a deposit or obtain a bank guarantee for deposit payment obligation in accordance with this Law. Is this deposit paid before or after approving the adjustment of investment guidelines?

Answer:

According to the provisions in point a clause 5 Article 26 of Decree No. 31/2021/ND-CP, the investor shall pay the deposit or submit the credit institution’s certificate of guarantee for deposit payment obligation after being issued with the decision on approval for both investment guidelines and investor or decision on investor approval, etc.

According to the provisions in point d clause 9 Article 26 of Decree No. 31/2021/ND-CP, where the project's investment capital is increased, the investor shall pay an additional amount of deposit or credit institution’s deposit payment guarantee corresponding to the increased investment capital according to the decision on approval for adjustment of the investment guidelines, etc.

Pursuant to the above regulations, the deposit payment or submission of a credit institution’s certificate of guarantee for deposit payment obligation shall be made after the project is granted investment guideline approval or investment guideline adjustment approval.

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Answer:

According to the provisions in point a clause 5 Article 26 of Decree No. 31/2021/ND-CP, the investor shall pay the deposit or submit the credit institution’s guarantee certificate after being issued with the decision on approval for both investment guidelines and investor or decision on investor approval or decision on approval for bidding result and prior to implementing the compensation, support and resettlement plan approved by a competent authority (if the investor does not advance the payment for compensation, support and resettlement) or by the time of issuing the decision on land allocation or land lease or land repurposing (if the investor does not advance compensation, support and resettlement payments or the investor is selected to execute the project through a land use right auction and is leased out land by the State and pays land rents on an annual basis).

Therefore, Article 26 of Decree No. 31/2021/ND-CP does not provide for time limit for paying deposit on the project completion after the investor is granted investment guideline approval but only the fulfilment of this obligation before organizing making of compensation, support and resettlement arrangement that has been approved by a competent authority or before issuing the decision to allocate, lease out land or grant permission for land repurposing. According to the provisions in clause 3 Article 42 of the Law on Investment, the investor shall comply with regulations of the written approval for investment guidelines and the investment registration certificate during execution of an investment project, including regulations and commitments on the schedule for execution of the investment project (capital contribution and capital raising schedule; schedule of achievement of primary operational objectives of the investment project, schedule for infrastructural development and inauguration; schedule of each stage (if the project is divided into multiple stages) specified in Clause 8, Article 40 of the Law on Investment, Clause 7, Article 32 Decree No. 31/2021/ND-CP.

Thus, it is required to follow procedures for paying deposit on the project completion.

56. How long is the deposit payment deferral as prescribed in point a clause 7 Article 26 of Decree No. 31/2021/ND-CP? If an investor is not required to immediately pay a deposit or submit a certificate of guarantee, when will the investor have to pay/submit it and is the investment registration authority required to sign an agreement with the investor, or is it not necessary for the investor to pay a deposit?

Answer:

According to the provisions in point a clause 7 Article 26 of Decree No. 31/2021/ND-CP, if the advanced amount is equal to or greater than the guarantee rate prescribed in Clause 2 of this Article, the investor is not required to immediately pay the deposit amount or submit the credit institution’s guarantee certificate at the time specified in Point a Clause 5 of this Article.

Point c clause 7 Article 26 of Decree No. 31/2021/ND-CP provides for: “The investor with the deposit amount paid or credit institution's guarantee certificate submitted in the cases mentioned in Points a and b of this Clause must pay a deposit to the investment registration authority in accordance with this Article when the project is behind schedule according to the decision on approval for investment guidelines, decision on approval for both investment guidelines and investor or investment registration certificate”.

Pursuant to the above regulations, the investor is not required to immediately pay the deposit in the case specified in point a clause 7 Article 26 of Decree No. 31/2021/ND-CP. In case where the project is behind schedule according to the decision on approval for investment guidelines, decision on approval for both investment guidelines and investor or investment registration certificate, the investor is required to pay the deposit amount (cannot choose to provide with a guarantee for deposit obligation) to the investment registration authority in accordance with point c clause 7 Article 26 of Decree No. 31/2021/ND-CP.

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57. Clause 1 Article 43 of the Law on Investment provides for “The investor is not required to pay a deposit or get a guarantee for deposit payment obligation.

Clause 5 Article 26 of Decree No. 31/2021/ND-CP stipulates that the investor is required to pay the deposit or submit the credit institution’s certificate of guarantee for deposit payment obligation after being issued with the decision on approval for bidding result.

Thus, there is a contradiction between the above regulations.

Answer:

Point a clause 1 Article 43 of the Law on Investment provides for that the investor is not required to pay a deposit or get a bank guarantee for deposit payment obligation in the case where the investor is the successful bidder for the right to use a land area that is allocated by the State with land levy payment or leased out by the State under one-off arrangement.

Therefore, the selected investor (the successful bidder of an auction of LUR of a land area for execution of an investment project that is leased out by the State with annual land rent payment) is still subject to payment of deposit on the project completion. Clause 5 Article 26 of Decree No. 31/2021/ND-CP stipulating that the investor must pay the deposit or submit the credit institution’s certificate of guarantee for deposit payment obligation after being issued with the decision on approval for bidding result is consistent with the provisions of Clause 1, Article 43 of the Law on Investment mentioned above.

58. How is the form of guarantee for project execution changed to apply the guarantee for deposit payment obligation in case where the investor has fulfilled their financial obligation or deposit payment obligation before the effective date of Decree No. 31/2021/ND-CP?

Answer:

The change of the form of guarantee for project execution to apply the guarantee for deposit payment obligation in case where the investor has fulfilled their financial obligation or deposit payment obligation before the effective date of Decree No. 31/2021/ND-CP shall comply with the provisions in clause 2 and 3 Article 123 of Decree No. 31/2021/ND-CP.

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Only the obligations to be fulfilled after the effective date of this Decree may be adjusted under the deposit agreement as specified in Clause 2 of this Article. If the investor violates the obligation to execute the project, such investor is not allowed to make a request for change of the form of guarantee for project execution or adjustment of the conditions for refund of deposit amount until the violation is dealt with. The deposit amount refunded or not refunded before the date of adjusting the deposit agreement may be adjusted under the deposit agreement as specified in this Clause.

59. In case the project runs behind schedule for no more than 12 months compared to the schedule specified in the first written approval for investment guidelines, can the investor get their deposit refunded?

Answer:

For investment projects that are executed from the effective date of the Law on Investment of 2020, the deposit refund and deposit payment to the state budget shall comply with the provisions in clauses 9 and 10 Article 26 of Decree No. 31/2021/ND-CP. Accordingly, for a project subject to issuance of an investment registration certificate, the guarantee amount that is yet to be refunded shall be paid to the state budget as prescribed by law in cases where the project is not put into operation on the schedule specified in the investment registration certificate without the competent authority’s permission for adjusting the schedule as prescribed in the Law on Investment and this Decree;

In addition, according to the provisions in point e clause 9 Article 26 of Decree No. 31/2021/ND-CP, if a project whose investment guidelines have been approved is not subject to issuance of investment registration certificate, when the project not subject to adjustment of its investment guidelines is adjusted as prescribed in this Decree and the adjustments change any content of the project execution guarantee agreement, the investor shall send a written notification to the investment registration authority prior to the adjustment. The investment registration authority and investor shall adjust the project execution guarantee agreement in conformity with the adjustments to the investment project. In this case, the deposit refund shall comply with the adjusted project execution guarantee agreement.

For investment projects that are executed before the effective date of the Law on Investment of 2020, the deposit refund shall comply with the transitional provisions in Article 123 of Decree No. 31/2021/ND-CP.

60. Is it reasonable to assign the Department of Planning and Investment to receive and process applications for adjustment of investment projects that have been approved under Decree No. 11/2013/ND-CP according to the provisions of Clause 3, Article 117 of Decree No. 31/2021/ND-CP (previously, applications for investment approval for these projects were received and processed by the Department of Construction)?

Answer:

Currently, the procedures for approving investment guidelines and adjusting investment projects for housing projects and urban areas have been agreed to be implemented according to the provisions of the Law on Investment of 2020 (Point d, Clause 2, Article 4, Point g Clause 1 Article 31, Point b Clause 1 Article 32, Clauses 2 and 6 Article 41 of the Law on Investment). Thus, the assignment of the Department of Planning and Investment to receive and process applications for adjustment of investment projects that have been approved as prescribed in Decree No. 11/2013/ND-CP is consistent with regulations of law and aims to unify the procedures for investment.

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Answer:

Clause 3 Article 117 of Decree No. 31/2021/ND-CP provides for procedures for adjustment to investment guidelines of projects whose guidelines have been approved before the effective date of the Law on Investment of 2020 and adjustments to projects falling under the cases of adjustment specified in clause 3 Article 41 of the Law on Investment.

According to the provisions of clause 5 Article 117 of Decree No. 31/2021/ND-CP, if adjustments to an investment project not falling under the cases specified in Clause 1 or 3 of this Article change any content of the investment license, certificate of investment incentives, investment certificate, investment registration certificate or another equivalent document issued before the effective date of the Law on Investment, the investor shall follow procedures corresponding to the procedures for adjusting the investment registration certificate as prescribed in Article 47 of this Decree at an investment registration authority to obtain the investment registration certificate. The investment registration certificate shall specify contents of the adjusted investment project and all unchanged and effective contents of the investment project on the investment license, investment certificate, certificate of investment incentives, investment registration certificate or another equivalent document.

Thus, adjustments to a project whose investment guidelines have been approved before the effective date of the Law on Investment of 2020 which are not the adjustments specified in clause 3 Article 41 of the Law on Investment and clause 1 Article 117 of Decree No. 31/2021/ND-CP are made in compliance with the provisions of clause 5 Article 117 of this Decree.

62. How is the authority and procedure for adjusting the project in Clause 1, Article 117 of Decree No. 31/2021/ND-CP when adjusting the contents in Clause 3, Article 41 of the Investment Law?

Answer:

The adjustment to the project in clause 1 Article 117 of Decree No. 31/2021/ND-CP shall be made in compliance with the procedures in clause 2 Article 117 of this Decree. Accordingly, in case of adjustment to the contents specified in points a, b and c clause 1 of this Article, the investor shall follow procedures for investment guideline approval according to the corresponding provisions in Section 2 Chapter IV of this Decree before adjusting the investment project. In this case, the regulatory authority having authority to approve investment guidelines shall consider the adjustments for approving investment guidelines.

If adjustments to an investment project not falling under the cases specified in Clauses 1 and 3 of this Article change any content of the investment license, certificate of investment incentives, investment certificate, investment registration certificate or another equivalent document issued before the effective date of the Law on Investment, the investor shall follow procedures corresponding to the procedures for adjusting the investment registration certificate as prescribed in Article 47 of this Decree at an investment registration authority to obtain the investment registration certificate (clause 5 Article 117 of Decree No. 31/2021/ND-CP).

63. What are procedures for adjusting a project that is executed before the effective date of the Law on Investment?

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The adjustment to an investment project that is executed before the effective date of the Law on Investment shall be made in accordance with the transitional provisions in Article 77 of the Law on Investment and Article 117 of Decree No. 31/2021/ND-CP.

According to the provisions in clause 3 Article 77 of the Law on Investment, if an investment project specified in Clause 2 of this Article is adjusted and the adjustments are subject to approval for investment guidelines in accordance with this Law, it is required to follow the procedures for investment guideline approval or investment guideline adjustment as prescribed in this Law.

Clause 1 and clause 2 Article 117 of Decree No. 31/2021/ND-CP provides for procedures for adjustment to the investment projects specified in points b, c and d clause 2 Article 77 of the Law on Investment.

Clause 3 Article 117 of Decree No. 31/2021/ND-CP provides for procedures for adjustment to the investment project specified in point a clause 2 Article 77 of the Law on Investment and adjustments falling under one of the cases specified in points a, b, c, d, dd, e and g clause 3 Article 41 of the Law on Investment.

According to Point a clause 3 Article 117 of Decree No. 31/2021/ND-CP, an investment guideline approving authority as prescribed by the Law on Investment means an authority that has the power to adjust the written decision on investment guidelines, written approval for investment guidelines or written approval for investment of such investment project, except for the cases in Points b and c of this Clause.

Clause 5 Article 117 of Decree No. 31/2021/ND-CP provides for: “If adjustments to an investment project not falling under the cases specified in Clauses 1 and 3 of this Article change any content of the investment license, certificate of investment incentives, investment certificate, investment registration certificate or another equivalent document issued before the effective date of the Law on Investment, the investor shall follow procedures corresponding to the procedures for adjusting the investment registration certificate as prescribed in Article 47 of this Decree at an investment registration authority to obtain the investment registration certificate. The investment registration certificate shall specify contents of the adjusted investment project and all unchanged and effective contents of the investment project on the investment license, investment certificate, certificate of investment incentives, investment registration certificate or another equivalent document”.

Thus, it is required to consider adjusting guidelines of investment projects that are executed before the effective date of the Law on Investment according to the above regulations.

64. Projects with capital of over 5000 billion whose investment guidelines have been approved by the Prime Minister are currently subject to adjustment to investment guideline approval by the Provincial People's Committees according to the provisions of Article 117 Decree No. 31/2021/ND-CP. However, unlike the Ministry of Planning and Investment, Departments of Planning and Investment do not have enough information about the projects to process applications for appraisal. How will the Departments of Planning and Investment follow procedures for adjustment to projects?

Answer:

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Accordingly, the procedures for adjustment to investment guidelines shall comply with the corresponding provisions in Section 4 Chapter IV of this Decree. Article 45 of Decree No. 31/2021/ND-CP has stipulated procedures for adjustment to investment projects subject to investment guideline approval by the provincial People’s Committees, including collecting opinions from competent regulatory authorities about the adjustments.

Thus, when following procedures for adjustment to investment guidelines of a project with total investment capital of over 5.000 billion VND, whose investment guidelines have been decided by the Prime Minister, currently subject to adjustment to investment guideline approval by the Provincial People’s Committee, if necessary, the investment registration authority may collect opinions from relevant agencies (including relevant Ministries and central authorities) about the adjustments.

65. How are procedures for adjustment to a golf course project that has been approved by the Prime Minister before the effective date of the Law on Investment followed?

Answer:

The adjustment to an investment project that is executed before the effective date of the Law on Investment shall be made in accordance with the transitional provisions in Article 77 of the Law on Investment and Article 117 of Decree No. 31/2021/ND-CP (see the answer for question 63).

According to the provisions in point a and point d Clause 3 Article 117 of Decree No. 31/2021/ND-CP, in case the investment project prescribed in point a clause 2 Article 77 of the Law on Investment is adjusted and adjustment contents fall under one of the cases specified in points a, b, c, d, dd, e and g clause 3 Article 41 of the Law on Investment, the investor shall follow procedures for adjustment to investment guidelines according to the corresponding provisions in Section 4 Chapter IV of this Decree.

Clause 5 Article 117 of Decree No. 31/2021/ND-CP provides for: “If adjustments to an investment project not falling under the cases specified in Clauses 1 and 3 of this Article change any content of the investment license, certificate of investment incentives, investment certificate, investment registration certificate or another equivalent document issued before the effective date of the Law on Investment, the investor shall follow procedures corresponding to the procedures for adjusting the investment registration certificate as prescribed in Article 47 of this Decree at an investment registration authority to obtain the investment registration certificate. The investment registration certificate shall specify contents of the adjusted investment project and all unchanged and effective contents of the investment project on the investment license, investment certificate, certificate of investment incentives, investment registration certificate or another equivalent document”.

Thus, it is required to study for adjustment to the golf course project that has been approved by the Prime Minister before the effective date of the Law on Investment in accordance with the above regulations.

66. An investor wins a LUR auction and is granted an approval for investment in executing a housing project by the provincial People’s Committee according to the provisions of the Law on Housing. Currently, the investor applies for project investment approval adjustment related to the land use structure in accordance with the local adjustment to the detailed planning (objectives, scale of construction items of the project will not be changed according to the investment approval previously approved by the Provincial People's Committee, and only the land use structure and building heights will be changed), which agency will advise on adjustment to investment guideline approval?

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The adjustment to an investment project that is executed before the effective date of the Law on Investment shall be made in accordance with the transitional provisions in Article 77 of the Law on Investment and Article 117 of Decree No. 31/2021/ND-CP (see the answer for question 63).

According to the provisions in clause 3 Article 117 of Decree No. 31/2021/ND-CP, in case the investment project specified in point a clause 2 Article 77 of the Law on Investment is adjusted and the adjustment contents fall under the cases specified in points a, b, c, d, dd, e and g clause 3 Article 41 of the Law on Investment, the investor shall follow procedures for adjustment to investment guidelines, in which the authority competent to approve investment guidelines under the Law on Investment is an authority competent to adjust the written decision on investment guidelines, written approval for investment guidelines or written approval for investment of such investment project (except for the cases specified in points b and c of this clause).

Thus, it is required to determine the authority to adjust the investment project in accordance with the above regulations and procedures for adjustment on the basis of the proposed adjustment contents of the investment project and the project contents specified in the written approval for investment.

67. In case a commercial project (except for housing projects) of which a decision on investment guidelines have been issued under the Law on Investment of 2014 has currently required an adjustment to expand the project land area according to Clause 1, Article 117 of the Decree. No. 31/2021/ND-CP, is it required to follow procedures for adjusting investment guidelines to be granted an adjusted investment guideline decision or conduct bidding for selection of investor executing the project?

Answer:

According to the provisions in Clause 3 Article 117 of Decree No. 31/2021/ND-CP, in case the investment project prescribed in point a clause 2 Article 77 of the Law on Investment is adjusted and adjustment contents fall under one of the cases specified in points a, b, c, d, dd, e and g clause 3 Article 41 of the Law on Investment, the investor shall follow procedures for adjustment to investment guidelines. Accordingly, the investor in an investment project whose investment guidelines have been approved must follow procedures for approving adjustment to investment guidelines if the used land area is over 10% or 30 ha (point b clause 3 Article 41 of the Law on Investment).

According to the provisions in clause 1 Article 32 of the Law on Investment, the provincial People’s Committees shall grant approval for investment guidelines of investment projects with proposal for land allocation or lease by the State without auction or bidding or receipt of LURs by conveyance and investment projects with proposal for land repurposing, etc.

Cases of approval for both investment guidelines and investor without LUR auction or bidding for investor selection are specified in clause 4 Article 29 of the Law on Investment.

Pursuant to the above regulations, in the case where an investor has LURs or adjusted investment project in a land zone require expansion is subject to approval for both investment guidelines and investor as prescribed in clause 4 Article 29 of the Law on Investment, the investment guideline approval is considered to be adjusted to expand the land area used to execute the project.

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68. If a project that was granted an investment certificate under the 2005’s Law on investment is still incomplete after multiple reschedulings, is it still eligible for another 24-month extension under Clause 4 of Article 117?

Answer:

The adjustment to the schedule of an investment project of which a decision on investment guidelines, approval for investment guidelines or approval for investment has been granted by a competent regulatory authority according to the provisions of laws on investment, housing, urban areas and construction before the effective date of the Law on Investment shall comply with the provisions in point a clause 4 Article 117 of Decree No. 31/2021/ND-CP. Accordingly, the schedule adjusted before the effective date of the Law on Investment shall continue to be adjusted according to regulations of the Law on Investment and this Decree but it shall not be extended by more than 24 months as of January 01, 2021 (if the final deadline for adjusting the schedule is specified in the written decision on investment guidelines, written approval for investment guidelines or investment registration certificate issued before January 01, 2021) or by more than 24 months from the final deadline for adjusting the schedule specified in the written decision on investment guidelines, written approval for investment guidelines or investment registration certificate (to regulations of the Law on Investment and this Decree but it shall not be extended by more than 24 months as of January 01, 2021 (if the final deadline for adjusting the schedule is specified in the written decision on investment guidelines, written approval for investment guidelines or investment registration certificate issued after January 01, 2021), except for the cases mentioned in Points a, b, c, d, dd and e Clause 4 Article 41 of the Law on Investment”.

The restriction on adjustment to the schedule of investment project execution of no more than 24 months according to the above regulations only applies to projects whose investment guidelines have been decided or approved or in which investment is approved (it does not apply to projects that operate within their investment registration certificates and are not subject to investment guideline decision/approval).

Thus, if the investment project operates within its investment certificate and is not subject to investment guideline decision/approval according to provisions of law effective at the time of operation, the schedule of investment project execution shall not be restricted according to the above regulations.

If an investment project has land expropriated due to failure to put it into use or delay in putting it into use according to the provisions of land law, the investment registration authority shall terminate the investment project in part or in full as prescribed in Point d, Clause 2, Article 48 of the Law on Investment.

69. Where a number of projects whose investment guidelines have been approved by the Provincial People's Committees according to the Law on Investment of 2005 and the Law on Investment of 2014 fall behind the schedule due to adjustments to exploitation arrangements made in accordance with the guidelines of not converting natural forest land to land used for other purposes according to Notification No. 191/TB-VPCP dated July 22, 2016 of the Government Office, can the project schedule be adjusted?

Answer:

Clause 4 Article 117 of Decree No. 31/2021/ND-CP provides for the adjustment to the schedule of an investment project whose investment guidelines have been decided or approved or in which investment is approved by a competent regulatory authority according to the provisions of laws on investment, housing, urban areas and construction before the effective date of the Law on Investment.

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Thus, it is required to consider the adjustment to the project schedule on the basis of the above regulations.

70. How to adjust the execution schedule of a project that is previously subject to the Prime Minister's investment guideline decision under the Law on Investment of 2014, but is no longer subject to it under the Law on Investment of 2020?

Answer:

Projects that are executed before the effective date of the Law on Investment shall be handed according to the provisions in Article 77 of the Law on Investment and Article 117 of Decree No. 31/2021/ND-CP (see the answer for question 63).

According to point a clause 3 Article 117 of Decree No. 31/2021/ND-CP, an investment guideline approving authority as prescribed by the Law on Investment means an authority that has the power to adjust the written decision on investment guidelines, written approval for investment guidelines or written approval for investment of such investment project, except for the cases in points b and c of this Clause.

Procedures for adjustment to schedule of an investment project whose investment guidelines have been decided or approved or in which investment is approved by a competent regulatory authority according to the provisions of laws on investment, housing, urban areas and construction before the effective date of the Law on Investment shall comply with the provisions in point d clause 3 and point d clause 4 Article 117 of Decree No. 31/2021/ND-CP.

Thus, it is required to consider the authority to adjust the schedule of the investment project and procedures for adjustment in accordance with the above regulations.

71. What to do when a project is still incomplete after 24-month extension under Clause 4 Article 41 of the Law on Investment and the delay is not caused by any force majeure event?

Answer:

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a) It is necessary to remedy the consequences of an event of force majeure in accordance with the civil law and the land law;

b) The project execution schedule is adjusted because the State delays allocating or leasing out land to the investor or allowing the investor to repurpose land.

c) The project execution schedule is adjusted at the request of a regulatory agency or the regulatory agency delays in performing administrative procedures;

d) The investment project is adjusted because the regulatory agency changes the planning;

dd) Any objective specified in the written approval for investment guidelines is changed; any objective that is subject to approval for investment guidelines is added;

e) The total investment capital is increased or reduced by 20% or more, thereby changing the scale of the investment project”.

Pursuant to the above regulations, the investor does not only adjust the schedule in cases of force majeure but also adjust the project schedule beyond 24 months in other cases because the State delays allocating or leasing out land to the investor or allowing the investor to repurpose land; the project execution schedule is adjusted at the request of a regulatory agency or the regulatory agency delays in performing administrative procedures; or the regulatory agency changes the administrative procedure etc. However, this regulation only applies to projects subject to investment guideline approval.

Thus, it is required to review reasons why the project is behind the schedule to consider cases where the investor is allowed to adjust the schedule beyond 24 months according to the above regulations.

72. How to inspect, monitor and supervise an investment project, handle violations of the investor, consider handling project execution deposits of the investor in case the investor makes an adjustment to extend the project execution schedule by 12 months or less (the investor is not required to follow procedures for approval for adjustment to investment guidelines as prescribed in Clause 3, Article 41 of the Law on Investment?

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According to the provisions in point d clause 3 Article 41 of the Law on Investment, the investor that has an investment project whose investment guidelines have been approved shall follow procedures for approving the adjustment to the investment guidelines; in case extension of the project execution schedule results in total duration of the project being extended by 12 months or less compared to that stated in the first written approval for investment guidelines, the investor is not required to adjust investment guidelines.

Thus, the supervision and fulfilment of obligations to pay deposit on the investment project completion guaranty in this case is carried out on the basis of the investment registration certificate (if any) and the deposit agreement.

- For a project to which an investment registration certificate is granted:

The investor shall follow the procedures for adjusting the investment registration certificate to adjust schedule of the investment project according to the provisions in clause 3 Article 43 of Decree No. 31/2021/ND-CP. Accordingly, the investor of an investment project that is not subject to investment guideline approval or a project whose investment guidelines have been approved not falling under the cases in clause 3 Article 41 of the Law on Investment shall follow procedures for adjusting the investment registration certificate (if any) according to the provisions in Article 47 of this Decree. The investment registration authority shall, based on the adjustment contents in the adjusted investment registration certificate, conduct inspection, supervision and state management in terms of investment of project execution guarantee activities.

- For a project to which an investment registration certificate is not granted:

The investor and the investment registration authority shall make adjustments to the deposit agreement according to the provisions of point e, clause 9, Article 26 of Decree No. 31/2021/ND-CP. Accordingly, regarding a domestic investor that has their investment guidelines approved and is not required to obtain the investment registration certificate, when the project not subject to adjustment to its investment guidelines is adjusted as prescribed in this Decree and the adjustments change any content of the project execution guarantee agreement, the investor shall send a written notification to the investment registration authority prior to the adjustment. The investment registration authority and investor shall adjust the project execution guarantee agreement in accordance with the adjustments to the investment project. In this case, the investment registration authority shall, based on the adjustment contents in the deposit agreement, conduct inspection, monitoring and management of the investor's deposit payment.

73. Clause 4 Article 41 of the Law on Investment of 2020 stipulates that the investor is not allowed to extend the investment execution schedule by more than 24 months compared to that stated in the first written approval for investment guidelines, except in some cases. However, in case projects whose schedule is extended by more than 24 months compared to that stated in the first written approval for investment guidelines are eligible to extend the land use period as prescribed in point i, clause 1, Article 64 of the Land Law and clause 12, Article 2 of Decree No. 01/2017/ND-CP dated January 6, 2017 of the Government, is it possible to extend the project execution schedule?

Answer:

The extension of the investment project execution schedule by more than 24 months is specified in clause 4, Article 41 of the Law on Investment and clause 4, Article 117 of Decree No. 31/ND-CP (see the answers for the questions 71 and 77).

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According to the provisions in point i clause 1 Article 64 of the Land Law, if the State allocates, leases out land but the land is not used for 12 consecutive months or the land use schedule extends by 24 months compared to that stated in the investment project from the date of actual land receipt, such land must be put into use; if the land is not put into use, the project developer is allowed to extend the land use period by 24 months and has to pay the State an amount corresponding to the land levy or land rent for the delay in project execution during this extended period; At the end of the extended period, if the investor still has not put the land into use, the State shall expropriate the land without compensation for the land and property affixed to the land, except in cases of force majeure.

Therefore, in case the project is eligible to be granted an extension for land use according to the provisions of Point i, Clause 1, Article 64 of the Land Law and falls into the cases specified in Points a, b, c, d, dd, e Clause 4, Article 41 of the Law on Investment or Clause 4, Article 117 of Decree No. 31/ND-CP, it is allowed to extend the investment project execution schedule by more than 24 months according to the provisions of this Article.

74. When is a project execution schedule adjusted in case land has not been allocated or leased? What is the basis for adjusting the schedule in case of changing objectives and increasing total investment capital?

Answer:

According to the provisions of clause 3 Article 42 of the Law on Investment, the investor shall comply with the provisions of the written approval for investment guidelines and the investment registration certificate during execution of their investment project.

Therefore, if the project is not likely to be executed according to the schedule specified in the written approval for investment guidelines or investment registration certificate, the investor must follow procedures for adjusting the project execution schedule according to the provisions of Article 41 of the Law on Investment.

The regulatory agency shall review the investor’s proposal for investment registration to appraise the adjustment to the project execution schedule in accordance with the provisions in Article 41 of the Law on Investment and guidelines of Decree No. 31/2021/ND-CP.

75. What is the maximum time to adjust the project execution schedule in case only the investment registration certificate is issued?

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Thus, restrictions on period of adjustment to project execution schedule as prescribed in clause 4 Article 41 of the Law on Investment only apply to projects subject to investment guideline approval, and do not apply to projects that only operate within their investment registration certificates and are not subject to investment guideline approval.

76. The investment certificate for a tourism project is issued with a term of 50 years from the date of issuance. During operation, the works were degraded, the Company upgraded and renovated them and requested an increase in the operating term to 50 years from the date of adjustment. Is it possible to increase the operating term of the project to 50 years from the date of adjustment?

Answer:

According to the provisions in Article 44 of the Law on Investment, the operating term of an investment project in an economic zone must not exceed 70 years. The operating term of an investment project outside an economic zone must not exceed 50 years.

According to the provisions of clause 1 Article 27 of Decree No. 31/2021/ND-CP, the operating term of an investment project as specified in clauses 1 and 2 Article 44 of the Law on Investment shall be calculated from the date on which the investor is granted with an investor approval decision, a decision on approval for both investment guidelines and investor or the first investment registration certificate. The operating term of an investment project whose land is allocated, leased out by the State or repurposed shall be calculated from the date on which the investor is issued with a decision to allocate land, a decision to lease out land or a decision to repurpose land. If the investor has had the decision to allocate land, decision to lease out land or decision to repurpose land but he/she faces a delay in land handover, the operating term of the investment project shall be calculated from the date of handover of land in the field.

According to the provisions in clause 2 Article 27 of Decree No. 31/2021/ND-CP, during the investment project execution, the investor may increase or decrease the operating term of the investment project. The adjusted operating term of the investment project must not exceed the terms specified in clauses 1 and 2 Article 44 of the Law on Investment.

Pursuant to the above regulations, the operating term of an investment project shall be calculated from the time of issuance of the first investment registration certificate and must not exceed the terms specified in clauses 1 and 2 Article 44 of the Law on Investment in case of adjustment.

Thus, in case the investment certificate with a term of 50 years from the date of issuance has been issued, the operating term of the project cannot be increased to 50 years from the date of adjustment. In case the operating term of the investment project expires, the investor shall follow procedures for extending the operating term of the investment project according to the provisions of Article 27 and Article 55 of Decree No. 31/2021/ND-CP.

77. In case an extension of an investment project to which an approval for adjustment to execution schedule is granted for no later than December 31, 2022 according to the provisions of points a and b, Clause 4, Article 117 of Decree No. 31/2021/ND-CP, if the project continues to be behind schedule due to no fault of a regulatory agency, is it possible to adjust the schedule according to Clause 4, Article 41 of the Law on Investment of 2020?

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According to the provisions of clause 4 Article 117 of Decree No. 31/2021/ND-CP, Regarding an investment project whose investment guidelines are decided or approved or in which the investment is approved by a competent authority in accordance with regulations of law on investment, housing, urban areas and construction before the effective date of the Law on Investment, the project execution schedule shall be adjusted as follows: “The schedule adjusted before the effective date of the Law on Investment shall continue to be adjusted according to regulations of the Law on Investment and this Decree but it shall not be extended by more than 24 months as of January 01, 2021 (if the final deadline for adjusting the schedule is specified in the written decision on investment guidelines, written approval for investment guidelines or investment registration certificate issued before January 01, 2021) or by more than 24 months from the final deadline for adjusting the schedule specified in the written decision on investment guidelines, written approval for investment guidelines or investment registration certificate (to regulations of the Law on Investment and this Decree but it shall not be extended by more than 24 months as of January 01, 2021 (if the final deadline for adjusting the schedule is specified in the written decision on investment guidelines, written approval for investment guidelines or investment registration certificate issued after January 01, 2021), except for the cases mentioned in Points a, b, c, d, dd and e Clause 4 Article 41 of the Law on Investment”.

Clause 4 Article 41 of the Law on Investment provides for: “With respect to the investment project whose investment guidelines are approved, the investor is not allowed to extend the investment execution schedule by more than 24 months compared to that stated in the first written approval for investment guidelines, except for one of the following cases:

a) It is necessary to remedy the consequences of an event of force majeure in accordance with the civil law and the land law;

b) The project execution schedule is adjusted because the State delays allocating or leasing out land to the investor or allowing the investor to repurpose land.

c) The project execution schedule is adjusted at the request of a regulatory agency or the regulatory agency delays in performing administrative procedures;

d) The investment project is adjusted because the regulatory agency changes the planning;

dd) Any objective specified in the written approval for investment guidelines is changed; any objective that is subject to approval for investment guidelines is added;

e) The total investment capital is increased or reduced by 20% or more, thereby changing the scale of the investment project”.

Pursuant to the above regulations, in addition to adjustment to the schedule at the request of the regulatory agency, adjustment to the investment project due to the change in planning by the regulatory agency, the investor may extend the project schedule to more than 24 months in other cases where the delay is not the regulatory agency's fault (such as force majeure, change of objectives specified in the written approval for investment guidelines, addition of objectives subject to investment guideline approval, increase in total investment capital of at least 20% resulting to a change in the scale of the investment project).

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78. Clause 3 Article 41 of the Law on Investment of 2021 only stipulates that the investor shall follow procedures for approving the adjustment to the investment guidelines (does not stipulate that the investor must adjust the investment registration certificate when falling into the subjects specified in this clause). This regulation will cause difficulties for the investor who has a project to which both the investment guideline approval and the investment registration certificate are granted because the information about the project stated in these documents is not adjusted consistently with each other.

Answer:

The adjustment to the investment registration certificate of a project subject to investment guidelines adjustment shall be made according to the provisions in point a clause 2 Article 43 of Decree No. 31/2021/ND-CP. Accordingly, for an investment project to which both the investment guideline approval and the investment registration certificate are granted, after following the procedures for adjusting the decision on investment guideline approval according to the corresponding provisions in Articles 44, 45 and 46 of this Decree, the investor shall follow procedures for adjusting the decision on investor approval (if any) or the investment registration certificate (if any). Thus, information about the adjusted investment project in the adjusted decision on investment guideline approval and the adjusted investment registration certificate will be adjusted to be consistent with each other.

79. How to transfer a project that is unfinished or has come into operation partially to another investor?

Answer:

- According to the provisions of clause 1 Article 46 of the Law on Investment, the investor is entitled to convey part or whole of an investment project to another investor when the following conditions are satisfied:

a) The investment project or the part of the investment project which is transferred has not been terminated in accordance with Clauses 1 and 2 Article 48 of this Law;

b) The foreign investor receiving the investment project or part of the investment project must satisfy the conditions set out in Clause 2 Article 24 of this Law;

c) 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/property on land;

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dd) The conditions set forth in the written approval for investment guidelines or the investment registration certificate or in relevant laws (if any) are complied with;

e) Upon transfer of an investment project, in addition to compliance with this Article, the state-owned enterprise shall comply with provisions of law on management and use of state capital invested in manufacturing and business activities of enterprises before making any adjustment to the investment project.

- According to the provisions of clause 2 Article 46 of the Law on Investment, if the conditions for transfer set forth in Clause 1 of this Article are satisfied, the investor shall follow the procedures for transferring the investment project in part or in full as follows: In case the investor in an investment project to which an investment registration certificate is granted has been approved in accordance with Article 29 of this Law, he/she shall follow procedures for adjusting the investment project as prescribed in Article 41 of this Law; for an investment project other than that prescribed in Point a of this Clause, the transfer of the investment project or transfer of property ownership to the investor receiving the investment project shall be carried out in accordance with the civil law, the law on enterprises, the law on real estate business and other regulations of law.

- Regarding the transfer of an investment project associated with the transfer of land use rights and property affixed to land, the Land Law (Articles 189, 194, etc.) stipulates conditions for selling and purchasing property affixed to land that is leased out by the State with annual land rent payments; conditions for transferring land use rights applied in executing investment projects for housing construction and business; investment projects to build infrastructure for transfer or lease, etc.

According to the provisions in Article 194 of the Land Law, land use rights shall be conveyed in the form of land subdivision after completing investment in infrastructure construction and financial obligations relating to land; for an investment project for housing construction and business, land use rights can be conveyed in conjunction with all or part of the project if a certificate is obtained; land use rights will be conveyed in conjunction with the entire investment project to build infrastructure for conveyance or lease if the conditions that the construction of corresponding infrastructure works must be finished according to the schedule stated in the approved project are met.

- Article 49 of the Law on Real Estate Business stipulated conditions for conveyance of all or part of a real estate project. Accordingly, the conveyed real estate project must meet the following conditions: The project has been approved by a competent authority; the approved detailed planning of 1/500 scale or general site planning is available; compensation and land clearance tasks related to the project or part of the project to be conveyed have been finished. If the entire investment project to build infrastructure is conveyed, the construction of corresponding technical infrastructure must be finished according to the schedule stated in the approved project, etc.

The transferor has obtained the certificate of land use rights over the whole or part of project to be conveyed. The transferee must be a real estate enterprise and financially capable, and undertake to keep conducting the investment and business in accordance with regulations of law, and ensure the project's schedule and contents.

Thus, it is required to study for implementation as prescribed in the above regulations.

80. According to the provisions in clause 1 Article 127 of Decree No. 31/2021/ND-CP dated March 26, 2021 of the Government: The investor in a project to which a certificate of investment incentives is granted before the effective date of the Law on Investment may replace it with an investment registration certificate. The investor shall submit an application for replacement of the investment registration certificate to an investment registration authority How does the investment registration authority update the investment project content to reissue an investment registration certificate to the investor (because the content of the certificate is very sketchy)?

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Point b clause 1 Article 127 of Decree No. 31/2021/ND-CP provides for: “The investment registration certificate shall contain information about the investment project in the investment license, certificate of investment incentives, investment certificate or equivalent document”.

According to Template No. A.I.16 - the application for replacement of investment registration certificate enclosed with Circular No. 03/2021/TT-BKHDT dated April 9, 2021 of the Minister of Planning and Investment, the investor shall provide proposed information stated in the investment registration certificate (write all information according to the investment registration certificate template prescribed in this Circular on the basis of the investment certificate/adjusted investment license/adjusted business license or equivalent documents that have been granted).

Thus, it is required that the investment registration authority complies with the above regulations.

81. Clause 3 Article 116 of Decree No. 31/2021/ND-CP dated March 26, 2021 of the Government provides for equivalent documents. For projects with adjustment contents falling into one of the cases specified in Points a, b, c, d, dd, e and g, Clause 3, Article 41 of the Law on Investment and falling into the cases specified in Clause 3 Article 116 Decree No. 31/2021/ND-CP (particularly, documents and decisions of regulatory agencies competent to decide investment guidelines or grant the project investment permission or approval according to regulations of laws on land, bidding, and enterprises in effect at the time of issuance of these documents and decisions), are these projects subject to adjustment to investment guidelines according to the provisions of Clause 3, Article 117 of Decree No. 31/2021/ND-CP?

Answer:

Clause 3 Article 117 of Decree No. 31/2021/ND-CP stipulates the procedures for adjustment to investment guidelines in case the investment project prescribed in point a clause 2 Article 77 of the Law on Investment is adjusted and adjustment contents fall under one of the cases specified in points a, b, c, d, dd, e and g clause 3 Article 41 of the Law on Investment.

Point a Clause 2 Article 77 of the Law on Investment stipulates cases where an investor is granted a decision on investment guidelines, investment guideline approval or investment approval by a competent regulatory authority according to the provisions of laws on investment, housing, urban areas and construction before the effective date of this Law.

Pursuant to the above regulations, only projects subject to investment guideline decisions, investment guideline approvals or investment approvals according to regulations of law on investment, housing, urban areas and construction before the effective date of this Law in compliance with Point a, Clause 2, Article 77 of the Law on Investment, it is required to follow procedures for adjusting investment guidelines according to the provisions of Clause 3, Article 117 of Decree No. 31/2021/ND-CP when adjusting one of the cases specified in Points a, b, c, d, dd, e and g, Clause 3, Article 41 of the Law on Investment.

III. Content related to termination of investment projects

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Answer:

According to the provisions in clause 3 Article 48 of the Law on Investment, the investment registration authority shall terminate the investment project after obtaining the opinion of the authority granting approval for investment guidelines.

Pursuant to the above regulations, the investment registration authority shall terminate the investment project whose investment guidelines are approved after obtaining the opinion of the authority granting approval for investment guidelines.

Assigning the investment registration authority to terminate the investment project whose investment guidelines are approved is intended to simplify administrative procedures and facilitate state management of investment.

83. How to terminate investment projects in the following cases:

- Some projects that violate land regulations are subject to land expropriation, but investment registration authorities do not have any information about that, so there is no basis to terminate the projects' operations;

- Some projects are executed slowly but it is not considered failure to put land into use according to the Land Law; project developers of projects are slow in performing site clearance tasks or deliberately delay site clearance tasks, or are slow in following land lease procedures, etc.

Answer:

- Regarding information about projects that violate land regulations and are subject to land expropriation, it is required to study for implementation as prescribed in the provisions of Clause 3, Article 15 of Decree No. 43/2014/ND-CP. According to which the Provincial People's Committees are responsible for organizing the review, handling and public announcement on the websites of the Provincial People's Committees of investment projects that have land unused for 12 consecutive months or are delayed by 24 months according to the initial schedule stated in the investment projects; projects that are extended; projects that are behind schedule in terms of land use due to force majeure, etc.

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According to the provisions in point dd clause 2 Article 47 of the Law on Investment, the investment authority shall decide to suspend an investment project in part or in full in case the investor fails to adhere to the written approval for investment guidelines or the investment registration certificate and recommits administrative violations after incurring penalties.

The above regulations must be applied to the termination of an investment project if it is executed slowly and it is not considered failure to put land into use; if site clearance tasks are deliberately delayed, the land lease is delayed or is not right on schedule under the written approval for investment guidelines, etc.

84. Why is it stipulated that a project will be terminated only when it has been suspended and incurred an administrative penalty?

Answer:

Clause 2 Article 47 of the Law on Investment stipulates that the investment authority shall decide to suspend an investment project in part or in full in case the investor fails to adhere to the written approval for investment guidelines or the investment registration certificate and recommits administrative violations after incurring penalties.

Administrative penalties must be stipulated before the investment project is suspended or terminated to ensure the transparency and the investor’s interests and avoid arising complaints.

85. A project is terminated due to violations against the Law on Investment; and according to the provisions of the Land Law, the project developer is entitled to sell the legal property on land to individuals or organizations in need within 24 months from the date on which the decision to terminate the project is issued. What is the basis for considering and approving the investment guidelines for an investor to define his/her project's operating term as 50 years or less or to define it according to the remaining operating term of the original project as specified in the decision to allocate land or lease out land, or the certificate of land use rights?

Can an investor whose project is terminated be allowed to sell legal property on land to individuals or organizations in need within 24 months from the date on which the decision to terminate the project is issued according to the provisions of the Land Law?

Answer:

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- After an investment project is terminated, the liquidation of the project shall comply with the provisions in clause 8 Article 57 of Decree No. 31/2021/ND-CP and relevant laws. Accordingly, the investor shall themselves liquidate the investment project according to the provisions of law on property liquidation; for the investment project whose land is allocated, leased out by the State or repurposed, the handling of land use rights and property affixed to land shall comply with the provisions of land law and relevant laws, etc.

Article 15b concerning land expropriation in case of termination of an investment project as prescribed by law on investment of Decree No. 43/2014/ND-CP [19] stipulates that the project developer is entitled to sell the legal property affixed to land to the other investor according to the provisions of law within 24 months from the date on which the investment project is terminated as per regulation.

Thus, it is required to study for the liquidation of property of investment projects that are terminated according to the above regulations.

86. When an investor decides to terminate a project according to the provisions of Clause 1, Article 48 of the Law on Investment of 2020, what forms of notification of proceeding procedures related to land, tax, etc. do investment registration authorities need to use to send to Departments and local authorities?

Answer:

Clause 2 Article 57 of Decree No. 31/2021/ND-CP provides for: “Termination procedures are as follows:

a) If the investor decides to terminate the investment project himself/herself/itself as prescribed in Point a Clause 1 Article 48 of the Law on Investment, such investor shall send the termination decision to the investment registration authority within 15 days from the date of making the decision together with the investment registration certificate (if any);

b) If the investment project is terminated according to the conditions set out in the contract or enterprise's charter or upon the expiration of the project’s duration as specified in Points b and c Clause 1 Article 48 of the Law on Investment, the investor shall notify and return the investment registration certificate (if any) to the investment registration authority within 15 days from the date of termination together with a copy of the document recording the termination. The investment registration authority shall notify the project termination to relevant authorities”.

Pursuant to the above regulations, it is required that investment registration authorities have to send notifications of the termination of investment projects enclosed with decisions or notifications of the investors concerning the termination of the investment projects and investment registration certificates (if any) to relevant agencies.

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Answer:

According to the provisions in point d clause 2 Article 48 of the Law on Investment, the investment registration authority shall terminate an investment project in part or in full if the investment project is subject to land expropriation due to failure to put land into use or delay in putting land into use according to the provisions of land law.

Clause 5 Article 57 of Decree No. 31/2021/ND-CP provides for: “If the investment project is terminated as prescribed in Points a, b and dd Clause 2 Article 48 of the Law on Investment, the investment registration authority shall make a record prior to making a decision on termination. If the investment project is terminated as prescribed in Point d Clause 2 Article 48 of the Law on Investment, the investment registration authority shall decide to terminate the project after the land expropriation decision is issued”.

Thus, the land expropriation under land regulations is carried out first, serving as a basis for the investment registration authority to terminate the investment project in part or in full.

88. What are procedures for revoking investment registration certificates; and handling problems that arise after revoking such investment registration certificates?

Answer:

Procedures for handling and revocation of an investment registration certificate and handling of an investment project after being terminated shall comply with the provisions of Clauses 4, 5, 6, Article 48 of the Law on Investment and Article 57 of Decree No. 31/2021/ND-CP.

According to the provisions of Clauses 4, 5 and 6, Article 48 of the Law on Investment, the investment registration authority shall decide to revoke the investment registration certificate if the investment project is terminated in accordance with Clause 2 of this Article, except for the case of termination of part of the investment project. The investor shall liquidate the investment project in accordance with the law on liquidation of property upon termination of the investment project, except for the case specified in Clause 5 of this Article. The settlement of the rights to use land and property on land upon termination of the investment project shall comply with the law on land and other relevant regulations of law.

Article 57 of Decree No. 31/2021/ND-CP provided detailed guidelines on conditions and procedures for termination of investment projects. Clause 8 of this Article provides for the liquidation of investment projects after they are terminated. According to these regulations, the investor shall liquidate the investment project according to the provisions of law on property liquidation; if the investment project whose land is allocated, leased out by the State or repurposed, the settlement of land use rights and property affixed to land shall comply with the provisions of land law and relevant laws; during the liquidation of the investment project, if the investor is a business organization that is dissolved or falls into bankruptcy, the liquidation of the investment project shall comply with the provisions of law on dissolution and bankruptcy of business organizations.

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LIST

Members of the PRIME MINISTER’S SPECIAL WORKING GROUP ON REVIEW AND RELIEF OF PROBLEMS AND DIFFICULTIES, AND ENHANCEMENT OF IMPLEMENTATION OF INVESTMENT PROJECTS falling within the remit of ministries, central and local authorities

1. Mr. Phan Chi Hieu, Deputy Minister of Justice - Deputy Head of the Working Group

2. Mr. Luong Tam Quang, Deputy Minister of Public Security - Member

3. Mr. Nguyen Minh Vu, Deputy Minister of Foreign Affairs - Member

4. Mr. Pham Anh Tuan, Deputy Minister of Information and Communications - Member

5. Mr. Nguyen Ngoc Dong, Deputy Minister of Transport - Member

6. Mr. Le Van Thanh, Deputy Minister of Labor, War Invalids and Social Affairs - Member

7. Mr. Ta Anh Tuan, Deputy Minister of Finance - Member

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9. Mr. Bui Hong Minh, Deputy Minister of Construction - Member

10. Mr. Le Minh Ngan, Deputy Minister of Natural Resources and Environment - Member

11. Mr. Doan Van Viet, Deputy Minister of Culture, Sports and Tourism - Member

12. Mr. Pham Cong Tac, Deputy Minister of Science and Technology - Member

13. Mr. Nguyen Hoang Hiep, Deputy Minister of Agriculture and Rural Development - Member

14. Mr. Doan Thai Son, Deputy Governor of the State Bank of Vietnam - Member

15. Mr. Nguyen Cao Luc, Deputy Head of the Government Office - Member

16. Mr. Ho Sy Hung, Vice Chairman of the Commission for the Management of State Capital at Enterprises - Member

17. Ms. Tong Thi Hanh, Director of Department of Legal Affairs - Ministry of Construction, Member

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19. Mr. Nguyen Van Viet - Director of Planning Department of the Ministry of Agriculture and Rural Development, Member

20. Ms. Nguyen Minh Hang - Director of the Department of General Economic Affairs - Ministry of Foreign Affairs, Member

21. Mr. Nguyen Thanh Tu, Director of the Department of Economic-Civil legislation, Ministry of Justice, Member

22. Mr. Dao Trung Chinh - Deputy Director General of the General Department of Land Management -Ministry of Natural Resources and Environment, Member

23. Mr. Bui Tat Hop - Deputy Director of the Industry Department of the Government Office, Member

24. Ms. Do Vu Anh Thu - Deputy Director of the Planning Department - Ministry of Industry and Trade, Member

25. Ms. Nguyen Thi Hong Lien - Deputy Director of the Department of Planning and Finance - Ministry of Culture, Sports and Tourism, Member

26. Ms. Nguyen Thi Quyen - Deputy Director of the Department of Employment - Ministry of Labor, War Invalids and Social Affairs, Member

27. Mr. Le Nam Trung - Deputy Director of the Department of Planning and Finance - Ministry of Information and Communications, Member

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29. Mr. Ho Duc Thang - Deputy Director of the Department of General Affairs - Commission for the Management of State Capital at Enterprises, Member

30. Mr. Duong Ba Duc - Deputy Director of the Department of Investment - Ministry of Finance, Member

31. Mr. Hoang Van Thu - Deputy Director of the Department of Corporate Finance - Ministry of Finance, Member

32. Mr. Vo Huu Hien - Deputy Director of the Department of Debt Management and External Finance -Ministry of Finance, Member

1 Amended by Clause 4, Article 108 of Decree No. 31/2021/ND-CP

2 Amended by Clause 1 Article 108 of Decree No. 31/2021/ND-CP

3 Amended by Clause 6 Article 3 of Decree No. 135/2016/ND-CP dated September 09, 2016

4 Amended by Clause 12 Article 1 of Decree No. 148/2020/ND-CP dated December 18, 2020

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6 Amended by Clause 5 Article 108 of Decree No. 31/2021/ND-CP

7 Amended by Clauses 6 and 7, Article 108 of Decree No. 31/2021/ND-CP

8 Amended by point a Clause 29 Article 89 of Decree No. 35/2021/ND-CP

9 Amended by Clause 5 Article 108 of Decree No. 31/2021/ND-CP

10 Amended by Article 108 of Decree No. 31/2021/ND-CP.

11 Amended by Clause 2 Article 108 of Decree No. 31/2021/ND-CP

12 Amended by Clause 1 Article 108 of Decree No. 31/2021/ND-CP

13 Amended by Decree No. 30/2021/ND-CP.

14 Amended by Article 108 of Decree No. 31/2021/ND-CP.

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16 Amended by Clause 4 Article 108 of Decree No. 31/2021/ND-CP.

17 Amended by Clause 9 Article 108 of Decree No. 31/2021/ND-CP.

18 Amended by Clause 6 Article 108 of Decree No. 31/2021/ND-CP.

19 Amended by Decree No. 01/2017/ND-CP dated January 6, 2017 on amendments to certain Decrees elaborating the Land Law