Decree No. 101/2006/NĐ-CP on the re-registration, conversion, and change registration of Investment Certificates for foreign-invested enterprises under the Enterprise Law and the Investment Law.

DECREE

Regulations on re-registration, conversion, and registration to change the Investment Certificate of foreign-invested enterprises as prescribed by the Enterprise Law and the Investment Law.

Considering the proposal of the Minister of Planning and Investment.

and the Investment Law

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Based on the Investment Law dated November 29, 2005;

Pursuant to the Enterprise Law dated November 29, 2005;

Considering the proposal of the Minister of Planning and Investment.

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree stipulates:

1. Foreign-invested enterprises that have been granted an Investment License under the Law on Investment in Vietnam shall re-register and convert their enterprise according to Clause 2 and Clause 3 of Article 170 of the Enterprise Law; parties involved in joint venture contracts that have been granted an Investment License under the Law on Investment in Vietnam shall register to change the Investment Certificate according to Clause 1 of Article 88 of the Investment Law.

2. Rights and obligations of foreign-invested enterprises that do not re-register as prescribed by the Enterprise Law and the Investment Law; regulations on adjusting the Investment License for foreign-invested enterprises that do not re-register or do not register to change the Investment Certificate.

Article 2. Applicability

1. Foreign-invested enterprises that have been granted an Investment License under the Law on Investment in Vietnam include:

c) Joint-stock companies with foreign investment established pursuant to Decree No. 38/2003/NĐ-CP dated April 15, 2003 of the Government on the conversion of certain foreign-invested enterprises to operate under the form of joint-stock companies.

2. Parties participating in joint venture contracts that have been granted investment licenses or business licenses before July 1, 2006.

c) Joint-stock companies with foreign investment established according to Decree No. 38/2003/NĐ-CP dated April 15, 2003 of the Government on converting certain foreign-invested enterprises to operate under the form of a joint-stock company.

2. Investment projects under joint venture contracts that have been granted an Investment License under the Law on Investment in Vietnam.

Article 3. Explanation of Terms

1. "Re-registration" means that foreign-invested enterprises established under the Law on Investment in Vietnam register business operations according to the Enterprise Law to implement investment projects as prescribed by the Investment Law and obtain a new Investment Certificate while maintaining the type of enterprise as stipulated in the previously granted Investment License; the Investment Certificate simultaneously serves as the Business Registration Certificate.

2. "Enterprise conversion" means that foreign-invested enterprises change their type of enterprise according to the Enterprise Law and the Investment Law and obtain a new Investment Certificate.

3. "Registration to change the Investment Certificate" means that parties involved in joint venture contracts register to change the Investment License into an Investment Certificate.

4. "Re-registered enterprise" refers to a foreign-invested enterprise that has obtained a new Investment Certificate according to the Enterprise Law and the Investment Law to replace the Investment License granted under the Law on Investment in Vietnam.

5. "Converted enterprise" refers to a foreign-invested enterprise that has changed its type of enterprise according to the Enterprise Law and the Investment Law and obtained a new Investment Certificate.

6. "Enterprise that does not re-register" refers to an enterprise that does not carry out re-registration within two years from the date the Enterprise Law comes into effect.

7. "Legally certified copy" is a copy certified by a competent authority.

Article 4. Right to decide on re-registration and enterprise conversion

1. Foreign-invested enterprises have the right to decide on re-registration and enterprise conversion according to the Enterprise Law, the Investment Law, and this Decree.

2. Parties involved in joint venture contracts have the right to decide on registering to change the Investment Certificate for investment projects that have been granted an Investment License according to the Investment Law.

Article 5. Investment Certificate and Authority to Issue Investment Certificate

1. The Investment Certificate shall be issued according to a uniform model promulgated by the Ministry of Planning and Investment. The Investment Certificate shall also serve as the Business Registration Certificate.

2. The authority to issue the Investment Certificate and state management over enterprises that re-register or convert shall be carried out in accordance with the Government's Decree guiding the implementation of certain provisions of the Investment Law.

Chapter II

RE-REGISTRATION AND CONVERSION OF ENTERPRISES

WITH FOREIGN INVESTMENT CAPITAL

Article 6. Forms of Enterprise Re-registration

1. Joint ventures and wholly foreign-owned enterprises with two or more owners may re-register as a limited liability company with two or more shareholders.

2. Wholly foreign-owned enterprises invested in by a single foreign organization or individual may re-register as a single-member limited liability company.

3. Joint stock companies established under Government Decree No. 38/2003/NĐ-CP dated April 15, 2003 may re-register as joint stock companies.

Article 7. Documents for Enterprise Re-registration

The documents for enterprise re-registration include:

1. A request for re-registration signed by the legal representative of the enterprise.

2. A draft of the amended Articles of Association in compliance with the laws on enterprises.

3. A certified copy of the Investment License and any Amending Licenses.

In cases where the enterprise requests adjustments to business registration and investment project-related contents during re-registration, the documents mentioned above shall also include materials prescribed by law corresponding to the adjusted contents.

The agency issuing the Investment Certificate shall not require the enterprise to submit additional documents other than those stipulated herein.

Article 8. Procedures and Formalities for Enterprise Re-registration

1. The enterprise applying for re-registration shall submit the documents in accordance with this Decree to the agency issuing the Investment Certificate as specified in Clause 2, Article 5 of this Decree and shall bear responsibility for the truthfulness and accuracy of the re-registration application documents.

2. Within fifteen working days from the date of receiving complete and valid documents, the agency issuing the Investment Certificate shall examine and issue the Investment Certificate. If it refuses or requires amendments or supplements, it shall notify the enterprise in writing of the reasons.

Article 9. Rights and Obligations of Re-registered Enterprises

1. Re-registered enterprises shall inherit all legitimate rights and interests, be responsible for unpaid debts, labor contracts, and other obligations of the enterprise prior to re-registration.

2. An enterprise re-registering shall have the following rights:

a) Operating in accordance with the contents specified in the Investment Certificate;

b) Retaining the enterprise name, seal, bank account, and tax code registered previously;

c) Enjoying other rights as prescribed by the Enterprise Law and the Investment Law.

3. Re-registered enterprises shall fulfill obligations as prescribed by the Enterprise Law and the Investment Law.

Article 10. Forms of Enterprise Conversion

1. Joint ventures and wholly foreign-owned enterprises with two or more owners may convert into a single-member limited liability company.

2. Wholly foreign-owned enterprises invested in by a single foreign organization or individual may convert into a limited liability company with two or more shareholders.

3. Foreign-invested enterprises that are limited liability companies may convert into joint stock companies and vice versa.

Article 11. Conditions for Business Conversion

1. The business converting must meet the general conditions stipulated by the Enterprise Law for each conversion case.

2. In the case where the business converts to a joint-stock company, the foreign-invested enterprise's owner must be a founding shareholder. If there are multiple owners, at least one owner must be a founding shareholder.

Article 12. Documents for Business Conversion

1. The documents for business conversion include:

a) A request document for business conversion signed by the legal representative of the enterprise, clearly stating the content of the conversion;

b) A draft Charter of the enterprise in compliance with the laws on enterprises;

c) The decision on business conversion by the sole foreign investor, the Board of Directors of a joint venture enterprise, or the General Meeting of Shareholders of a foreign-invested joint-stock company. The decision on business conversion must contain the main contents regarding: the name and principal address of the converting enterprise and the converted enterprise; the time frame and conditions for transferring assets, capital contributions, shares, and bonds of the foreign-invested enterprise into assets, capital contributions, shares, and bonds of the converted enterprise; the labor utilization plan; the time frame for implementing the conversion.

The business conversion decision must be sent to all creditors and notified to the employees of the enterprise within 15 days from the date of passing the decision;

d) A certified copy of the Investment License and any Amended Licenses.

2. In cases where new members are added during the conversion, the above-mentioned documents also include:

a) For new individual members: a certified copy of the Identity Card, Passport, or other lawful personal identification;

b) For new corporate members: a certified copy of the Decision on Establishment, Business Registration Certificate, or equivalent document of the corporation; the Power of Attorney, Identity Card, Passport, or other lawful personal identification of the authorized representative.

For new foreign corporate members, the certified copy of the Business Registration Certificate and the Charter must be authenticated by the registration authority within no more than three months prior to the submission of the application.

3. In cases where the business conversion requires adjustments to the business registration and investment project contents, the conversion documents must also include the relevant documents prescribed by law corresponding to the adjusted contents.

Article 13. Procedure for Business Conversion

1. The business conversion may be carried out after the foreign-invested enterprise re-registers or simultaneously with the re-registration.

2. The enterprise requesting conversion submits the documents as prescribed by this Decree to the investment certificate issuing authority as stipulated in Clause 2, Article 5 of this Decree and bears responsibility for the truthfulness and accuracy of the content of the business conversion documents.

3. Within thirty working days from the date of receiving complete valid documents, the investment certificate issuing authority examines and issues the Investment Certificate. If it refuses or requests amendments and supplements, it must notify the enterprise in writing with clear reasons.

Article 14. Rights and Obligations of the Converted Enterprise

1. The converted enterprise succeeds to all legitimate rights and interests, assumes responsibility for unpaid debts, labor contracts, and other obligations of the enterprise before conversion.

2. The converted enterprise operates according to the contents specified in the Investment Certificate; continues to enjoy investment incentives recorded in the Investment License for projects that have been licensed if foreign investors hold not less than 30% of the charter capital; other rights as prescribed by the Enterprise Law and the Investment Law.

3. The converted enterprise has obligations as prescribed by the Enterprise Law and the Investment Law.

Article 15. Re-registration and Conversion of Enterprises in Cases of Non-Compensatory Transfer Commitments

1. A foreign-invested enterprise where the foreign investor has committed to non-compensatorily transfer invested assets to the Government of Vietnam at the end of the operating period may re-register and convert in accordance with this Decree if it meets the following conditions:

a) Does not change the commitment content regarding non-compensatory transfer for projects already granted an Investment License;

b) Inherits and continues to implement the investment project related to the assets committed to be non-compensatorily transferred.

2. In cases where there are changes to the contents related to non-compensatory transfer, the re-registration and conversion procedures under this Decree must be approved by the Prime Minister.

Chapter III

APPLICATION FOR CHANGE OF INVESTMENT CERTIFICATE

Article 16. Cases for Application for Change of Investment Certificate

The application for change of Investment Certificate as stipulated in Article 88 of the Investment Law applies to joint venture contracts' investment projects that were granted an Investment License before July 1, 2006.

If the parties involved in the joint venture contract request to re-register the investment project in accordance with the Investment Law, they shall follow the procedures for changing the Investment Certificate as prescribed in this Decree.

Article 17. Documents for Application for Change of Investment Certificate

The documents for application for change of Investment Certificate include:

1. A written request for change of Investment Certificate signed by the parties involved in the joint venture contract.

2. A certified copy of the Investment License and any amended Investment Licenses.

If the parties involved in the joint venture contract require adjustments to the contents related to the investment project and the joint venture contract, then the above-mentioned documents also include relevant documents as required by investment laws corresponding to such adjustments.

The agency issuing the Investment Certificate shall not require the parties involved in the Joint Venture Contract to submit additional documents beyond those specified herein.

Article 18. Procedures and Formalities for Application for Change of Investment Certificate

1. The parties involved in the joint venture contract submit the documents as prescribed in this Decree to the agency issuing the Investment Certificate as stipulated in Clause 2, Article 5 of this Decree and bear responsibility for the truthfulness and accuracy of the content of the application for change of Investment Certificate.

2. Within seven working days from the date of receiving complete and valid documents, the agency issuing the Investment Certificate will examine and issue the Investment Certificate. If it rejects or requests amendments, it must notify the enterprise in writing of the reasons.

Article 19. Rights and Obligations of Parties to a Business Cooperation Contract

1. Operate according to a new Investment Certificate.

2. Inherit rights and obligations stipulated in the Investment License and adjusted Investment Licenses already issued, business cooperation contracts already approved, and the Investment Law.

Chapter IV

FOREIGN-INVESTED ENTERPRISES

DO NOT RE-REREGISTER AND BUSINESS COOPERATION CONTRACTS

DO NOT CHANGE INVESTMENT CERTIFICATE

Article 20. Rights and Obligations of Enterprises Not Re-registering

1. An enterprise not re-registering has the right:

a) To continue operating according to the already issued Investment License and the Enterprise Charter; to request adjustment of the Investment License when necessary, except for adjustments to business sectors and duration of operation;

b) To retain the enterprise name, seal, account, and tax code already registered;

c) Other rights as prescribed by the Enterprise Law and the Investment Law.

2. An enterprise not re-registering has the obligation:

a) To only operate within the scope of business sectors and duration of operation specified in the already issued Investment License. The issued Investment License simultaneously serves as the Business Registration Certificate;

b) To comply with the provisions of the Enterprise Law and the Investment Law and related laws.

Article 21. Rights and Obligations of Parties to a Business Cooperation Contract Not Changing the Investment Certificate

1. Parties to a business cooperation contract have the right to continue operating according to the already issued Investment License and the business cooperation contract already approved.

2. Parties to a business cooperation contract have the obligation to comply with the provisions of the Investment Law and related laws.

Article 22. Adjustment of Investment License for Enterprises Not Re-registering, Business Cooperation Contracts Not Changing the Investment Certificate

1. During the course of operation, foreign-invested enterprises not re-registering, parties to business cooperation contracts not changing the Investment Certificate, if there is a need, may be considered for adjustment of the Investment License except in the following areas: business sectors, business activities, and duration of operation.

2. The agency issuing the Investment Certificate approves the request for adjustment of the Investment License from enterprises not re-registering, parties to business cooperation contracts in the form of an Investment License Adjustment Certificate; this adjustment certificate is part of the Investment License.

3. The agency issuing the Investment Certificate issues an approval document without needing to adjust the Investment License for the following cases:

a) Opening a trading office, warehouse, product showroom (non-production) within the province or centrally-administered city where the enterprise's headquarters is located;

b) Changing the location of the headquarters within the province or centrally-administered city.

Article 23. Documents, Procedures, and Authority for Adjusting the Investment License

1. Depending on the content of the Investment License adjustment, enterprises not re-registering, parties to business cooperation contracts not changing the Investment Certificate prepare adjustment documents according to the regulations of the Decree guiding implementation of certain provisions of the Investment Law and submit them to the agency issuing the Investment Certificate.

2. The procedures and authority for issuing an Investment License Adjustment Certificate are carried out according to the分级管理规定，由国务院制定的关于实施《投资法》若干规定的部门规章。

Chapter V

IMPLEMENTING PROVISIONS

Article 24. Implementation Provisions

1. This Decree takes effect fifteen days after its publication in the Gazette.

2. The Minister of Planning and Investment shall, based on this Decree, promulgate models for re-registration applications, enterprise conversion applications; models for requests to change the Investment Certificate and models for the Investment License Adjustment Certificate.

3. The Ministers, Heads of Ministries equivalent to ministries, Heads of government agencies, Chairmen of provincial People's Committees under the central city, are responsible for enforcing this Decree./.