The transfer of FDI (foreign direct investment) projects is not simply a commercial transaction but must also strictly comply with Vietnamese law. The following article by DNP Viet Nam Law Firm will help businesses understand the procedures, conditions and important notes when performing this activity.
1. Forms of project transfer with FDI capital:
CSPL: Article 41 of the Investment Law 2020
- Transfer of part or all of an investment project between investors.
- Transfer of the entire project that has been granted an investment license.
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2. Conditions for transferring FDI projects:
2.1 Conditions for the transferor of investment projects:
CSPL:Clause 1 Article 46 Investment Law 2020
– The investment project or the transferred part of the investment project is not terminated.
– Foreign investors receiving the transfer of an investment project, or a part of an investment project, must satisfy the following conditions:
- Meet market access conditions for foreign investors (If the transferee is a foreigner )
- No financial obligations to the State (tax, land rent…)
- Ensure compliance with environmental, land and construction laws.
– Satisfy the conditions prescribed by the law on land in case of transferring investment projects associated with transferring land use rights and assets attached to land;
– Satisfy the conditions prescribed by the law on housing and the law on real estate business in case of transferring housing construction investment projects and real estate projects;
– Satisfy the conditions specified in the investment policy approval document and Investment Registration Certificate.
2.2 Conditions for the transferee of the investment project:
CSPL: Clause 2 Article 30 of the Law on Real Estate Business 2023
- The transferee must be an enterprise with real estate business functions (case of receiving transfer of real estate investment project).
- Financial capacity must be demonstrated through financial reports of the last 2 years or valid financial commitments and guarantees.
- Commitment to continue implementing the project on schedule and in accordance with approved content is mandatory.
3. Project transfer dossier with FDI capital:
CSPL:Clause 5, Article 48, Decree 31/2021/ND-CP
- Document requesting adjustment of investment project;
- Report on the implementation status of the investment project up to the time of transfer of the investment project
- Contract or principle contract on the transfer of part or all of the investment project;
- Copies of documents on the legal status of the transferor and transferee;
- Copy of Investment Registration Certificate; Decision on Investment Policy Approval; Decision on Investor Approval (if any);
- Copy of BCC Contract (for investment projects in the form of BCC Contract);
- One of the documents proving the financial capacity of the transferee (financial statements, support commitments, guarantees…).
4. Procedures for transferring FDI projects:
| Case | Legal basis | Detailed procedures | |
| For investment projects that have been approved in principle at the same time as the investor’s approval, the investor transfers the entire investment project before the project is put into operation or there is a change in conditions for the investor. | Clause 6, Article 48, Decree 31/2021/ND-CP. | Step 1: Submit transfer documents (04 or 08 sets depending on authority) to the investment registration agency or the Ministry of Finance. Step 2:The competent authority shall appraise the transfer conditions and decide to adjust the project in accordance with the law. | |
| For investment projects that have been approved in principle for investment, the transfer of the project changes the content of the investment policy approval in one of the cases specified in points a, b, c, d, dd and e, Clause 3, Article 41 of the Investment Law 2020 | Clause 7, Article 48, Decree 31/2021/ND-CP. | Step 1: Submit transfer documents (04 or 08 sets depending on authority) to the investment registration agency or the Ministry of Finance. Step 2:The competent authority shall appraise the transfer conditions and decide to adjust the project in accordance with the law | |
| Transfer of a project that has been approved for investment policy but does not change the content of the policy | Clause 8, Article 48, Decree 31/2021/ND-CP | Step 1: Submit 04 sets of documents to the Investment Registration Agency, in which the project adjustment request document is replaced by the investor adjustment request document. Step 2:Within 03 days, the Investment Registration Authority shall send the dossier to relevant agencies for comments. Step 3: Within 15 days, relevant agencies shall respond in writing on the content within their scope of management. Step 4: Within 25 days, the Investment Registration Agency shall prepare an appraisal report and submit it to the Provincial People’s Committee. Step 5: Within 07 working days, the Provincial People’s Committee decides to approve the investor adjustment. Step 6: The decision is sent to the relevant parties and records the transfer content. | |
| For investment projects that have been approved in principle and have already been put into operation, investors are not required to carry out procedures for approving adjustments to the investment policy when transferring the project. | Clause 9, Article 48, Decree 31/2021/ND-CP. | No need to carry out procedures for approving investment policy adjustment when transferring a project. | |
| The project is not subject to investment policy approval or does not fall under Clause 3, Article 41 of the Investment Law 2020. | Clause 10, Article 48, Decree 31/2021/ND-CP. | Step 1: Submit 01 set of adjustment documents to the Investment Registration Authority. Step 2: The investment registration authority shall review the transfer conditions under Clause 1, Article 46 of the Investment Law and make adjustments under Article 47 of Decree 31/2021/ND-CP. Step 3: Granting of adjusted Investment Registration Certificates to both the transferor and the transferee. | |
| Procedures for adjusting investment projects in case investors transfer investment projects to foreign investors and establish economic organizations to implement investment projects. | Clause 11, Article 48, Decree 31/2021/ND-CP. | Step 1: Investors transferring investment projects carry out procedures to adjust investment projects. Step 2: Foreign investors receiving project transfers shall carry out procedures to establish economic organizations in accordance with the provisions of enterprise law corresponding to each type of economic organization. | |
5. Important notes on FDI project transfer:
- Project legal assessment: Avoid projects that are mortgaged, disputed, or in violation.
- Check the financial capacity of the transferee: Must have a financial report or guarantee.
- Meet market access requirements: Especially if the transferee is a foreign investor.
- Comply with foreign exchange regulations: Transfer money through investment accounts.
The information above is for reference only. If you require further details, please contact us using the information below.
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