Circular No. 02/2017/TT-BKHĐT guiding the mechanism for coordinating the handling of investment registration procedures and business registration for foreign investors.

CIRCULAR

Guidelines on the mechanism for coordinating the handling of investment registration procedures

and business registration for foreign investors

Pursuant to the Investment LawNo.No. 67/2014/QH1dated November 26, 2014;

Pursuant to the Enterprise LawNo. 68/2014/QHdated September 14, 2015 of the Government on business registration;1dated November 26, 2014;

Pursuant to Decree No.78/2015/NĐ-CPPursuant to Decree No. 118/2015/NĐ-CP

Pursuant to Decree No.dated November 12, 2015 of the Government detailing and guiding the implementation of certain provisions of the Investment Law;Pursuant to Decree No. 116/2008/NĐ-CP

Pursuant to Decree No.dated November 14, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Planning and Investment;At the proposal of the Director of the Department of Registration of Business, the Director of the Department of Foreign Investment,

the Minister of Planning and Investment issues this Circular guiding the mechanism for coordinating the handling of investment registration and business registration for foreign investors.

MinistrytrThis Circular guides the mechanism for coordinating the handling of investment registration and business registration for foreign investors as prescribed in Article 24 of Decree No. 118/2015/NĐ-CP.amendống ký1. Foreign investors and economic organizations with foreign invested capital as defined in the Investment Law shall implement investment registration, business registration, capital contribution, purchase of shares, or equity participation in accordance with Vietnamese laws;

Article 1. Scope of Regulation

2. The investment registration authority;

Article 2. Applicability

This Circular applies to the following subjects:

3. The business registration authority;

4. Other organizations and individuals related to investment registration and business registration.

1. "The mechanism for coordinating the handling of investment registration and business registration for foreign investors" (hereinafter referred to as the interconnection mechanism) is the coordination mechanism between the investment registration authority and the business registration authority in handling investment registration and business registration for foreign investors as prescribed in Article 24 of Decree No. 118/2015/NĐ-CP.

2. "The investment registration authority" includes the Provincial Departments of Planning and Investment, Industrial Park Management Boards, Export Processing Zone Management Boards, High-Tech Zones Management Boards, and Economic Zones Management Boards as prescribed in Article 28 of Decree No. 118/2015/NĐ-CP.

Article 3. Explanation of Terms

In this Circular, the following terms are understood as follows:

3. "The business registration authority" is the Provincial Business Registration Office as prescribed in Point a Clause 1 Article 13 of Decree No. 78/2015/NĐ-CP.

4. "The information system for interconnection processing" is the specialized information system built and operated by the Ministry of Planning and Investment to send, receive, store, display, or perform other operations on data to facilitate coordination between the business registration authority and the investment registration authority during the implementation of the interconnection mechanism.

5. "Digitizing documents" is the process of scanning existing paper-based data to convert paper-based textual data into electronic textual data.

6. "The department receiving and processing investment registration applications" is the auxiliary department for the investment registration authority when implementing procedures for issuing and amending the Certificate of Investment Registration.

Article 4. Cases where the interconnection mechanism is implemented

1. Foreign investors and economic organizations with foreign invested capital establishing economic organizations as prescribed in Article 22 of the Investment Law,

2. Foreign investors and economic organizations with foreign invested capital investing through capital contribution, share purchase, or equity participation as prescribed in Clause 1 Article 26 of the Investment Law.

3. Foreign investors and economic organizations with foreign invested capital simultaneously adjusting business registration content and investment registration content, including:

a) Changing the business sectors while changing the project objectives;

b) Changing the headquarters address while changing the project location;

c) Changing the charter capital while changing the investment capital;

d) Changing members, founding shareholders, and foreign investor shareholder information while changing investor information on the Certificate of Investment Registration.

c) Amend the charter capital of the enterprise while changing the investment capital of the investment project;

d) Change members, information of founding shareholders, foreign investor shareholders in the enterprise while changing investor information on the Investment Registration Certificate.

Article 5. Principles for Application in the Linked Mechanism

1. Investors have the right to choose to register investment and business registration under the linked mechanism as prescribed in this Circular or to implement each procedure according to the Investment Law, Enterprise Law, and guiding documents.

2. Investors shall declare their application files and bear legal responsibility for the legality, truthfulness, and accuracy of the information declared in the investment registration and enterprise registration applications, the number of investment registration and enterprise registration applications implemented according to the laws on investment and enterprises.

3. The Investment Registration Authority and the Business Registration Authority shall cooperate, exchange information, and only require investors to submit one copy in cases where there is overlap in the investment registration application and the enterprise registration application, including:

a) Passport or other personal identification documents with equivalent legal validity in the case of individual investors;

b) Decision on establishment or Certificate of Enterprise Registration or other documents with equivalent legal validity in the case of organizational investors;

c) Authorization document for implementing the investment registration and enterprise registration procedures.

In this case, the Investment Registration Authority retains the copy submitted by the investor and is responsible for sending copies of the aforementioned documents to the Business Registration Authority. Copies provided by the Investment Registration Authority are considered valid copies pursuant to Clause 10, Article 3 of Decree No. 78/2015/NĐ-CP.

4. The Investment Registration Authority and the Business Registration Authority are responsible for the integrity of the files and documents during the transfer of files and are responsible for coordinating to confirm the receipt and delivery of files and documents within the linked mechanism.

5. The Investment Registration Authority and the Business Registration Authority examine the validity of the files, process investment registration and enterprise registration applications according to their assigned functions and responsibilities; coordinate and share information and bear responsibility within the scope of their respective functions and responsibilities. The Investment Registration Authority records all requests for amendments and supplements to the application for each submission by the enterprise in a Notice regarding the amendment and supplementation of the investment registration and enterprise registration applications.

6. The prevention of identical and confusing names for the proposed enterprise is established from the time the Business Registration Authority notifies the Investment Registration Authority about the valid enterprise registration application.

7. The deadline for issuing the Enterprise Registration Certificate and the Confirmation of Changes to the Enterprise Registration Content as stipulated in Clause 1, Article 28 of Decree No. 78/2015/NĐ-CP is determined from the date the Business Registration Authority receives information about the Investment Registration Certificate and the approval document from the Department of Planning and Investment regarding foreign investors' capital contribution, purchase of shares, or equity participation.

Article 6. Procedure for Implementing the Linked Mechanism in Cases Where Foreign Investors Invest to Establish Economic Organizations

1. Investors submit applications at the Investment Registration Application Reception and Processing Unit

Investors submit the investment registration application and the enterprise establishment registration application at the Investment Registration Application Reception and Processing Unit.

The Investment Registration Application Reception and Processing Unit checks the conditions for receiving the investment registration application according to the Investment Law and Decree No. 118/2015/NĐ-CP, and the conditions for receiving the enterprise establishment registration application according to Clause 2, Article 27 of Decree No. 78/2015/NĐ-CP. At this stage, the enterprise establishment registration application does not include a valid copy of the Investment Registration Certificate.

If both the investment registration application and the enterprise establishment registration application meet the conditions for acceptance, the Investment Registration Application Reception and Processing Unit accepts the applications into the Linked Information Processing System, issues a receipt for the investment registration and enterprise registration applications to the applicant, and digitizes the applications into the Linked Information Processing System.

2. The Investment Registration Application Reception and Processing Unit and the Business Registration Authority examine the validity of the applications

a) For the Investment Registration Application Reception and Processing Unit:

The Investment Registration Application Reception and Processing Unit processes the investment registration application on the National Information System on Investment according to the procedures prescribed in the Investment Law and guiding documents. If the investor is not issued an Investment Registration Certificate, the Investment Registration Application Reception and Processing Unit is responsible for notifying the Business Registration Authority to delete the data on the enterprise registration application on the National Information System on Enterprise Registration.

b) For the Business Registration Authority:

Within two working days from the date of receiving information about the enterprise registration application through the Linked Information Processing System, the Business Registration Authority processes the enterprise registration application on the National Information System on Enterprise Registration and sends feedback to the Investment Registration Application Reception and Processing Unit on the validity of the application through the Linked Information Processing System.

- In the case of a valid application:

The Business Registration Authority informs the Investment Registration Application Reception and Processing Unit that the enterprise registration application is valid for consolidation.

- In the case of an invalid application:

The Business Registration Authority informs the request for amendments and supplements to the application and sends it to the Investment Registration Application Reception and Processing Unit for consolidation and guidance to the investor to complete the application. The content of the request for amendments and supplements to the investment registration and enterprise registration applications is published on the national portal for enterprise registration. When the investor amends and supplements the enterprise registration application, the Investment Registration Application Reception and Processing Unit receives and digitizes the application and sends it to the Business Registration Authority through the Linked Information Processing System for the Business Registration Authority to continue processing the enterprise registration application.

3. Issuance of the Investment Registration Certificate

On the same working day as the date of issuance of the Investment Registration Certificate, the Department for Receiving and Processing Investment Registration Applications shall digitize the Investment Registration Certificate on the National Information System on Investment and send information to the Business Registration Authority through the Interconnected Information Processing System.

Weekly, the Department for Receiving and Processing Investment Registration Applications shall send a valid copy of the Investment Registration Certificate along with the business registration dossier received in paper form to the Business Registration Authority for archiving according to regulations.

4. Issuing the Business Registration Certificate

Within two working days from the date of receiving information about the Investment Registration Certificate through the Interconnected Information Processing System, the Business Registration Authority shall process the business registration dossier on the National Information System on Business Registration, send information to the Tax Registration System to create a business code and issue the Business Registration Certificate. On the same working day as the date of issuance of the Business Registration Certificate, the Business Registration Authority shall transfer the Business Registration Certificate to the Department for Receiving and Processing Investment Registration Applications.

5. Delivering Results to Investors

Within one working day from the date of receipt of the Business Registration Certificate, the Department for Receiving and Processing Investment Registration Applications shall deliver the Business Registration Certificate and the Investment Registration Certificate to the investor. In case of need, the investor may receive the Investment Registration Certificate in advance.

Article 7. Procedures for Implementing the Interconnected Mechanism in Cases of Foreign Investment in the Form of Capital Contribution, Share Purchase, or Equity Participation

1. The investor submits the dossier at the Department for Receiving and Processing Investment Registration Applications under the Department of Planning and Investment

Foreign investors and economic organizations with foreign investment contributing capital, purchasing shares, or participating in equity shall submit the capital contribution, share purchase, or equity participation registration dossier and the business registration change dossier of the company receiving the capital contribution to the Department for Receiving and Processing Investment Registration Applications under the Department of Planning and Investment.

The Department for Receiving and Processing Investment Registration Applications under the Department of Planning and Investment shall check the conditions for accepting the capital contribution, share purchase, or equity participation registration dossier in accordance with the Investment Law and guiding documents; and the conditions for accepting the business registration change dossier as prescribed in Decree No. 78/2015/ND-CP. In this case, the business registration change dossier does not yet include the approval document of the Department of Planning and Investment regarding the foreign investor's capital contribution, share purchase, or equity participation.

If the dossier meets the acceptance conditions, the Department for Receiving and Processing Investment Registration Applications under the Department of Planning and Investment shall hand over the receipt of the dossier to the person submitting it.

2. The Department for Receiving and Processing Investment Registration Applications under the Department of Planning and Investment shall transfer the business registration dossier to the Business Registration Authority

On the same working day as the date of receipt of the dossier, the Department for Receiving and Processing Investment Registration Applications under the Department of Planning and Investment shall transfer the business registration dossier to the Business Registration Authority.

3. Reviewing the Validity of the Dossier

a) For the Department for Receiving and Processing Investment Registration Applications under the Department of Planning and Investment:

The Department for Receiving and Processing Investment Registration Applications under the Department of Planning and Investment shall process the capital contribution, share purchase, or equity participation registration dossier on the National Information System on Investment according to the procedures prescribed in the Investment Law and guiding documents.

b) For the Business Registration Authority:

Within two working days from the date of transferring the business registration dossier, the Business Registration Authority shall process the business registration dossier on the National Information System on Business Registration and send feedback to the Department for Receiving and Processing Investment Registration Applications under the Department of Planning and Investment regarding the validity of the dossier.

- In the case of a valid application:

The Business Registration Authority shall send feedback to the Department for Receiving and Processing Investment Registration Applications under the Department of Planning and Investment regarding the validity of the dossier, waiting for the Department of Planning and Investment to issue an approval document regarding the foreign investor's capital contribution, share purchase, or equity participation to proceed with issuing the business registration.

- In the case of an invalid application:

The Business Registration Authority shall issue a notice requesting modifications and supplements to the dossier and send it to the Department for Receiving and Processing Investment Registration Applications under the Department of Planning and Investment for consolidation and guidance to the enterprise to complete the dossier. When the investor or enterprise modifies and supplements the business registration dossier, the Department for Receiving and Processing Investment Registration Applications under the Department of Planning and Investment shall receive it and send it to the Business Registration Authority for continued processing of the business registration dossier.

4. Issuing the Approval Document Regarding the Foreign Investor's Capital Contribution, Share Purchase, or Equity Participation

If the foreign investor's capital contribution, share purchase, or equity participation meets the conditions stipulated in Point a and Point b Clause 1 Article 22 of the Investment Law, the Department of Planning and Investment shall issue the approval document regarding the foreign investor's capital contribution, share purchase, or equity participation.

If the foreign investor's capital contribution, share purchase, or equity participation does not meet the conditions stipulated in Point a and Point b Clause 1 Article 22 of the Investment Law, the Department for Receiving and Processing Investment Registration Applications under the Department of Planning and Investment shall notify the Business Registration Authority to cancel the business registration dossier on the National Information System on Business Registration.

On the same working day as the date of issuance of the approval document regarding the foreign investor's capital contribution, share purchase, or equity participation, the Department for Receiving and Processing Investment Registration Applications under the Department of Planning and Investment shall send this document to the Business Registration Authority.

5. Issuing the Business Registration Certificate and Confirmation of Changes to Business Registration Content

On the same working day as the date of receiving the approval document from the Department of Planning and Investment regarding the contribution of capital, purchase of shares, or equity participation of foreign investors, the Business Registration Authority issues the Enterprise Registration Certificate and the Confirmation of Changes to Enterprise Registration Content; simultaneously transferring the Certificates to the Investment Registration File Reception and Processing Unit under the Department of Planning and Investment.

6. Delivering Results to Investors

Within 01 working day from the date of receiving the Enterprise Registration Certificate and the Confirmation of Changes to Enterprise Registration Content, the Investment Registration File Reception and Processing Unit under the Department of Planning and Investment delivers the approval document for the contribution of capital, purchase of shares, or equity participation of foreign investors, along with the Enterprise Registration Certificate and the Confirmation of Changes to Enterprise Registration Content to the enterprise. In case of need, the enterprise may receive the approval document for the contribution of capital, purchase of shares, or equity participation of foreign investors in advance.

Article 8. Procedures for Implementing the Linked Mechanism in Cases of Simultaneous Adjustment of Investment Registration Content and Enterprise Registration Content

1. Investors submit applications at the Investment Registration Application Reception and Processing Unit

The investor submits the investment registration file and the enterprise registration file at the Investment Registration File Reception and Processing Unit.

The Investment Registration File Reception and Processing Unit checks the conditions for accepting the investment registration file according to the provisions of the Investment Law and Decree No. 118/2015/NĐ-CP; the conditions for accepting the enterprise registration file according to Clause 2, Article 27 of Decree No. 78/2015/NĐ-CP. If the files meet the acceptance conditions, the Investment Registration File Reception and Processing Unit provides a receipt for the submission of the files to the person submitting the files.

2. The Investment Registration File Reception and Processing Unit transfers the file to the Business Registration Authority

On the same working day as the date of receiving the file, the Investment Registration File Reception and Processing Unit transfers the enterprise registration file to the Business Registration Authority.

3. The Investment Registration File Reception and Processing Unit and the Business Registration Authority examine the validity of the file

a) For the Investment Registration Application Reception and Processing Unit:

The Investment Registration File Reception and Processing Unit processes the investment registration file on the National Information System on Investment according to the procedures prescribed in the Investment Law and guiding documents.

b) For the Business Registration Authority:

Within 02 working days from the date of receiving the transferred enterprise registration file, the Business Registration Authority processes the file on the National Information System on Enterprise Registration and sends feedback to the Investment Registration File Reception and Processing Unit regarding the validity of the file.

- In the case of a valid application:

The Business Registration Authority issues the Enterprise Registration Certificate and the Confirmation of Changes to Enterprise Registration Content through the National Information System on Enterprise Registration; simultaneously transferring the Certificates to the Investment Registration File Reception and Processing Unit.

- In the case of an invalid application:

The Business Registration Authority issues a notice requesting amendments and supplements to the file and sends it to the Investment Registration File Reception and Processing Unit to guide the enterprise to complete the file. When the investor or enterprise amends and supplements the enterprise registration file, the Investment Registration File Reception and Processing Unit receives and forwards it to the Business Registration Authority for continued processing of the enterprise registration file.

4. Delivering Results to Investors

Within 01 working day from the date of receiving the Enterprise Registration Certificate and the Confirmation of Changes to Enterprise Registration Content from the Business Registration Authority, the Investment Registration File Reception and Processing Unit compiles and delivers the results to the investor. In case of need, the enterprise may receive the Enterprise Registration Certificate and the Confirmation of Changes to Enterprise Registration Content or the Investment Registration Certificate in advance.

Article 9. Procedures for implementing the interconnection mechanism in cases where foreign investors establish economic organizations through the backup process

1. The interconnection mechanism through the backup process shall be applied in the following cases:

a) The interconnection information processing system is under construction or upgrade;

b) The interconnection information processing system encounters technical issues;

c) Other force majeure situations.

The Ministry of Planning and Investment will provide specific announcements regarding the time period for applying the interconnection mechanism through the backup process.

2. Procedures and formalities for implementing the interconnection mechanism for cases where foreign investors register to establish enterprises through the backup process shall be carried out as follows:

a) Investors submit applications at the Registration and Processing Unit for Investment Registration

Investors submit the investment registration application and the enterprise establishment registration application at the Investment Registration Application Reception and Processing Unit.

The Registration and Processing Unit for Investment Registration checks the conditions for accepting the investment registration application according to the Investment Law and Decree No. 118/2015/NĐ-CP; and the conditions for accepting the enterprise establishment registration application as stipulated in Clause 2, Article 27 of Decree No. 78/2015/NĐ-CP. In this case, the enterprise establishment registration application does not yet include a valid copy of the Investment Registration Certificate.

If the application meets the acceptance conditions, the Registration and Processing Unit for Investment Registration issues a receipt for the investment registration and enterprise registration application to the applicant.

b) The Registration and Processing Unit for Investment Registration transfers the application to the Business Registration Authority.

On the same working day as the date of receiving the file, the Investment Registration File Reception and Processing Unit transfers the enterprise registration file to the Business Registration Authority.

c) The Registration and Processing Unit for Investment Registration and the Business Registration Authority examine the validity of the application

- For the Registration and Processing Unit for Investment Registration:

The Registration and Processing Unit for Investment Registration processes the investment registration application on the National Information System on Investment according to the procedures prescribed in the Investment Law and guiding documents.

- For the Business Registration Authority:

Within two working days from the date of receiving the transferred enterprise registration application, the Business Registration Authority processes the application on the National Information System on Enterprise Registration and sends feedback to the Registration and Processing Unit for Investment Registration regarding the validity of the application.

+ If the application is valid:

The Business Registration Authority notifies the Registration and Processing Unit for Investment Registration that the enterprise registration application is valid for consolidation.

+ If the application is invalid:

The Business Registration Authority issues a notification requesting amendments and supplements to the application and sends it to the Registration and Processing Unit for Investment Registration for consolidation and guidance to the enterprise to complete. When the investor amends and supplements the enterprise registration application, the Registration and Processing Unit for Investment Registration receives it and forwards it to the Business Registration Authority for continued processing of the enterprise registration application.

d) Issuing the Investment Registration Certificate

On the same working day as the issuance of the Investment Registration Certificate, the Registration and Processing Unit for Investment Registration sends a valid copy of the Investment Registration Certificate to the Business Registration Authority.

đ) Issuing the Enterprise Registration Certificate

Within two working days from the date of receiving the valid copy of the Investment Registration Certificate, the Business Registration Authority processes the application on the National Information System on Enterprise Registration, sends information to the Tax Registration Information System to create a business code. On the same working day as the issuance of the Enterprise Registration Certificate, the Business Registration Authority transfers the Enterprise Registration Certificate to the Registration and Processing Unit for Investment Registration.

e) Delivering results to the investor

Within one working day from the date of receipt of the Business Registration Certificate, the Department for Receiving and Processing Investment Registration Applications shall deliver the Business Registration Certificate and the Investment Registration Certificate to the investor. In case of need, the investor may receive the Investment Registration Certificate in advance.

Article 10. Sample Documents for Implementing the Interconnected Mechanism

1. The sample Registration Receipt for Investment Registration and Business Registration, Notice on the Validity of the Business Registration Application, Notice on Amending and Supplementing the Investment Registration and Business Registration Application, and Record of Handover of Implementation Materials as prescribed in the Appendices issued together with this Circular.

2. Organizations and individuals specified in Article 2 of this Circular shall be responsible for uniformly using the sample documents issued together with this Circular during the implementation of the interconnected mechanism.

Article 11. Collection of Business Registration Fees

Under the interconnected mechanism, the Investment Registration Authority collects business registration fees and remits them to the state budget in accordance with the laws on fees and charges.

Article 12. Implementation Organization

1. This Circular takes effect from June 15, 2017.

2. Provincial People's Committees and Municipal People's Committees under the Central Government shall allocate sufficient human resources, financial resources, and other resources to the Investment Registration Authority and the Business Registration Authority to ensure the performance of tasks and powers stipulated in this Circular.

3. Departments of Planning and Investment, Industrial Park Management Boards, High-Tech Zone Management Boards, Economic Zone Management Boards of provinces and centrally-administered municipalities, provincial-level Business Registration Authorities, and other organizations and individuals related to investment registration and business registration shall be responsible for implementing this Circular.

4. During the implementation process, if there are any difficulties, relevant organizations and individuals are requested to promptly reflect them to the Ministry of Planning and Investment for research, amendment, and supplementation./.