Decree No. 121/2008/ND-CP on investment activities in the postal and telecommunications sectors

DECREE

Regarding investment activities in the postal and telecommunications sectors

__________________________

THE GOVERNMENT

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

Based on the Investment Law dated November 29, 2005;

Based on the Postal and Telecommunications Ordinance dated May 22, 2002;

Considering the proposal of the Minister of Information and Communications,

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree stipulates the conditions for direct investment in the postal and telecommunications sectors with the purpose of conducting business.

Article 2. Applicability

This Decree applies to domestic and foreign investors engaged in investment activities in the postal and telecommunications sectors within the territory of Vietnam; organizations and individuals related to investment activities in the postal and telecommunications sectors.

Article 3. Definitions

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

1. "Investment activities in the postal sector" include investment activities in providing delivery services.

2. "Investment activities in the telecommunications sector" include investment activities: establishing telecommunications network infrastructure, Internet, broadcasting transmission, and providing telecommunications and Internet services.

3. "Forms of direct investment in the postal and telecommunications sectors" include forms of investment as prescribed in Article 21 of the Investment Law No. 59/2005/QH11 dated November 29, 2005.

4. "Telecommunications service provider licensed in Vietnam" is an enterprise that has been granted a telecommunications license by the Ministry of Information and Communications.

Article 4. Investment Procedures

1. The provisions on the authority to issue Investment Certificates, the agency receiving project investment application files, and the procedures for registering investments shall be implemented in accordance with the laws on investment.

2. Economic organizations with foreign invested capital, regardless of the scale of capital, when participating in activities in the postal and telecommunications sectors must establish an investment project and comply with the laws on investment and the provisions of this Decree.

3. Investment projects in the postal and telecommunications sectors that fall under the category requiring review to obtain an Investment Certificate include:

a) Foreign-invested projects regardless of the scale of investment capital.

b) Domestic projects establishing network infrastructure to provide telecommunications services regardless of the scale of investment capital.

c) Domestic projects providing delivery services and telecommunications services without network infrastructure with a capital scale of 300 billion VND (three hundred billion Vietnamese dong) or more.

4. Authority to review investment projects:

a) Provincial Departments of Information and Communications shall conduct reviews for investment projects providing delivery services and telecommunications services without network infrastructure within their respective provinces or centrally-administered cities that require review.

b) The Ministry of Information and Communications shall conduct reviews for investment projects not falling under the provisions of point a, clause of this section.

5. The content and process of reviewing investment projects shall be carried out in accordance with the laws on investment, the provisions of this Decree, and the relevant specialized laws.

Article 5. Investment Period

The operating period of an investment project must comply with the provisions of the laws on investment.

In cases where the operating period of an investment project exceeds the period specified in the laws on specialized licenses, the investor must follow the procedures for the competent state agencies to consider issuing or extending specialized licenses according to the regulations.

Article 6. Supervision of Investment Projects

1. The transfer of investment projects as prescribed by the Investment Law does not include the transfer of specialized investment licenses for postal, delivery, telecommunications, Internet, and broadcasting transmission services.

2. The transfer of foreign capital contributions must comply with the provisions of this Decree and Vietnam's commitments upon joining the World Trade Organization (WTO) in the relevant fields.

3. In cases of adjusting investment projects, transferring capital, suspending, or ceasing operations of investment projects, investors must comply with the laws on investment and report to the Ministry of Information and Communications for consideration of issuing or revoking specialized licenses according to the laws on postal and telecommunications.

Article 7. Application of Law

1. In cases where there are differences between the provisions of this Decree and other Decrees regarding the same issues related to investment activities in the postal and telecommunications sectors, the provisions of this Decree shall apply.

2. For international treaties, agreements, or other international documents signed by authorized agencies or organizations of the Socialist Republic of Vietnam that have different provisions from those of this Decree, they shall be implemented according to the provisions in these international documents.

Chapter II

Article 8. Investment Projects for Establishing Network Infrastructure to Provide Telecommunication Services

Article 8. Investment projects for establishing network infrastructure to provide telecommunication services shall satisfy the following conditions:

Investment projects for establishing network infrastructure to provide telecommunication services must meet the following conditions:

1. General conditions:

a) Be consistent with the strategy, planning, and development plans for telecommunications in Vietnam.

b) Ensure compliance with national standards and technical regulations on telecommunications; information resource allocation planning, and relevant specialized laws.

2. Conditions for subjects:

a) Domestic investors:

- Must be state-owned enterprises or enterprises where the State's shareholding constitutes a controlling stake.

- In cases where there are multiple domestic investors participating in the investment project, at least one investor must be a state-owned enterprise or an enterprise where the State's shareholding constitutes a controlling stake, and this investor must hold at least 51% of the total investment capital of the project.

b) Foreign investors:

- Must form joint ventures or associations with domestic investors who have been granted permits to establish network infrastructure and provide telecommunication services in Vietnam.

- The proportion of their shareholding must be in accordance with Vietnam's WTO accession commitments, except where current Vietnamese regulatory legal documents provide more favorable provisions.

3. Minimum registered capital:

a) Investment projects permitted to establish public telecommunications network infrastructure within the scope of one province or city must have a minimum registered capital of 160 billion (one hundred sixty) Vietnamese dong.

b) Investment projects permitted to establish public telecommunications network infrastructure nationwide must have a minimum registered capital of 1,600 billion (one thousand six hundred) Vietnamese dong.

Article 9. Investment Projects Providing Telecommunication Services Without Network Infrastructure

Investment projects providing telecommunication services without network infrastructure must satisfy the following conditions:

1. Domestic investment projects:

a) Enterprises belonging to all economic sectors established in accordance with the law.

b) In cases where there are multiple domestic investors participating, at least one investor must hold at least 30% of the total investment capital of the project.

2. Investment projects with foreign capital:

a) Within three years from Vietnam's accession to the WTO, foreign investors wishing to provide basic telecommunication services or Internet access services must form joint ventures with at least one licensed telecommunication service provider in Vietnam; the shareholding ratio of licensed telecommunication service providers in Vietnam must constitute at least 49% of the total investment capital of the project;

b) The proportion of foreign investors' shareholding must be in accordance with Vietnam's WTO accession commitments, except where current Vietnamese regulatory legal documents provide more favorable provisions.

Article 10. Telecommunication Licenses

1. After obtaining the Investment Certificate or Business Registration Certificate, the investor shall prepare a proposal to apply for a Telecommunication License.

2. The procedures, formalities, and authority for issuing Telecommunication Licenses shall be carried out in accordance with the specialized laws on telecommunications.

3. Investors will be granted a Telecommunication License if their proposals meet the following conditions:

a) Consistent with the investment project that has been approved by competent state management agencies during review.

b) Comply with the legal provisions of specialized laws regarding licensing of information resources, standards, technical regulations, service quality, tariffs, interconnection, and ensuring information security...

c) In cases where the proposal for a Telecommunication License does not conform to the content of the investment project that has been approved by competent state management agencies during review and/or does not comply with the legal provisions of specialized laws, the Ministry of Information and Communications will refuse to issue a Telecommunication License.

Chapter III

INVESTMENT CONDITIONS IN THE POST AND TELECOMMUNICATIONS SECTOR

Article 11. Investment Projects for Providing Mail Delivery Services

Investment projects for providing mail delivery services must meet the following conditions:

1. Subject Conditions:

a) For investment projects not linked to the establishment of an economic organization, the investor must be a business established under Vietnamese law and hold a Business Registration Certificate or an Investment Certificate for postal service provision and mail delivery services.

b) For investment projects linked to the establishment of an economic organization, domestic investors and foreign investors are organizations or individuals that carry out procedures to establish an economic organization according to the provisions of the law.

Foreign partners in investment projects:

- In cases of investment to provide international mail delivery services, they must be legitimate businesses providing mail delivery services in their home country.

- In cases of investment to provide international letter mail delivery services, they must be legitimate businesses providing mail delivery services in their home country and have a delivery network within the scope of cooperation.

2. Capital Contribution Ratio:

a) Domestic investors may establish an economic organization with 100% domestic investment capital to provide mail delivery services.

b) Domestic investors and foreign investors may cooperate in direct investment forms to provide mail delivery services, with the maximum foreign capital contribution ratio being 51%, and in compliance with the provisions of international treaties to which Vietnam is a party.

c) Foreign investors may establish joint ventures with domestic investors with a foreign capital contribution ratio exceeding 51%, or establish an economic organization with 100% foreign investment capital from January 11, 2012.

Article 12. Postal License

1. After obtaining a Business Registration Certificate or an Investment Certificate, the investor shall perform the following tasks:

a) Notify the competent state management agency about business activities for investment projects providing mail delivery services.

b) Request the competent state management agency to issue a Postal License in accordance with the specialized laws on postal services for investment projects providing letter mail delivery services.

c) Register with the competent state management agency in accordance with relevant laws in cases where domestic investors act as agents for foreign mail delivery organizations.

2. The procedures, formalities, and authority for issuing a Postal License shall be carried out in accordance with the specialized laws on postal services.

3. A Postal License will be issued if the project proposal meets the following conditions:

a) Consistent with the investment project that has been approved by competent state management agencies during review.

b) Complies with the provisions of the specialized laws on postal services.

c) If the project proposal requesting a Postal License does not align with the content of the investment project already approved by the competent state management agency during review, and/or does not comply with the provisions of the specialized laws, the Ministry of Information and Communications will refuse to issue a Postal License.

Chapter IV

IMPLEMENTING PROVISIONS

Article 13. Effective Date

This Decree shall take effect fifteen days after its publication in the Official Gazette.

Article 14. Implementation Organization

Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of provincial and centrally-administered city People's Committees, and related organizations and individuals are responsible for implementing this Decree./.