In the context of international integration, many FDI enterprises in Vietnam consider transferring investment projects as part of their restructuring or expansion strategies. However, such transactions must strictly comply with legal regulations. DNP Viet Nam Law Firm offers a comprehensive overview of the procedures and legal considerations for transferring investment projects by FDI enterprises, helping investors mitigate legal risks and conduct transactions effectively.
1. Overview of Investment Project Transfers by FDI Enterprises
The transfer of an investment project refers to the process in which a foreign investor (or an FDI enterprise) transfers part or all of its investment project, including rights and obligations, to another investor (which can be either domestic or foreign). This is a lawful activity, explicitly governed by Vietnamese laws, particularly the Law on Investment 2020, which allows investors to operate with flexibility in their business strategies.
2. Legal Basis
The transfer of investment projects by FDI enterprises is primarily governed by the following legal instruments:
- Law on Investment 2020
- Law on Enterprises 2020
- Decree No. 31/2021/ND-CP: Detailing and guiding the implementation of certain provisions of the Law on Investment
- Decree No. 68/2019/ND-CP: On the management and use of state capital invested in production and business
3. Conditions for Transferring an Investment Project
According to Clause 1, Article 46 of the Law on Investment 2020, an investment project may be transferred only if the following conditions are met:
3.1. The project is not subject to termination
The project or the portion to be transferred must not fall under any of the termination circumstances under Article 48 of the Law on Investment (e.g., termination by authority decision, legal violations, expiration of project term, etc.).
3.2. The transferee meets eligibility requirements
The transferee must satisfy financial capacity and experience requirements, must not be prohibited from investing, and must meet market access conditions under Clause 2, Article 24 of the Law on Investment.
3.3. Land and real estate-related conditions (if applicable)
If the transfer involves land use rights or attached assets, it must comply with the Land Law and the Law on Real Estate Business.
3.4. Specific conditions under investment approval
If the Investment Registration Certificate or the Investment Policy Approval Document sets specific conditions on transfer, such conditions must also be fulfilled.
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4. Dossier for Transferring an Investment Project
According to Clause 5, Article 48 of Decree No. 31/2021/ND-CP, the dossier submitted by the FDI enterprise must include the following documents:
- Written request for amending the Investment Registration Certificate;
- Project implementation report up to the transfer date;
- Investment project transfer agreement (or equivalent legal document);
- Certified copy of the Enterprise Registration Certificate (or equivalent) of the transferee;
- Investment Registration Certificate or Investment Policy Approval (if any);
- Documents proving the transferee’s financial capacity (latest 2 years’ financial statements, financial support commitments, financial guarantees, etc.);
- Power of attorney for submission (if not submitted directly).
5. Procedures for Transferring Investment Projects
Legal Basis: Article 48, Decree No. 31/2021/ND-CP
Case 1: Transfer before project operation OR transfer causes changes in content
- Step 1: Submit 08 sets of documents to the Ministry of Finance, or 04 sets to the Investment Registration Authority with the authority to approve the investment policy.
- Step 2: The competent authority will review and decide on amending the project as per applicable provisions of Decree 31/2021/ND-CP.
Case 2: Transfer without change to investment content
- Step 1: Submit 04 sets of documents to the Investment Registration Authority, with a request for investor adjustment (instead of project amendment).
- Step 2: Within 03 working days of receiving a valid dossier, the authority sends it to relevant agencies for comments.
- Step 3: Within 15 working days, those agencies respond with their opinions.
- Step 4: Within 25 working days, the Investment Registration Authority prepares an assessment report and submits it to the Provincial People’s Committee.
- Step 5: Within 07 working days of receiving the assessment report, the People’s Committee approves the investor adjustment.
- Step 6: The decision is issued and sent to the Investment Registration Authority, the transferor, and the transferee.
Case 3: Transfer of an operational project
If the project has already been put into operation, the transfer does not require adjustment of investment policy.
Case 4: Transfer of a project not subject to investment policy approval
- Step 1: The transferor submits 01 dossier to the Investment Registration Authority.
- Step 2: The authority evaluates eligibility and issues the amended Investment Registration Certificate to both parties.
Case 5: Transfer to a foreign investor
- Step 1: The transferor follows applicable procedures under relevant regulations.
- Step 2: Upon completing the procedures, the foreign transferee must establish a new economic organization corresponding to the appropriate legal form.
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