Decree No. 194/2013/ND-CP On re-registration, conversion of foreign-invested enterprises and change of Investment License for joint venture contracts

 DECREE

Regarding the re-registration and conversion of foreign-invested enterprises and the change of investment licenses for projects implemented under joint venture contractsPursuant to the Investment Law dated November 29, 2005;Pursuant to Law No. 37/2013/QH13 dated June 20, 2013 amending and supplementing Article 170 of the Enterprise Law;

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

The Government issues this Decree on the re-registration and conversion of foreign-invested enterprises and the change of investment licenses for projects implemented under joint venture contracts.

Pursuant to the Enterprise Law dated November 29, 2005;

1. Re-registration and conversion of foreign-invested enterprises that have been granted investment licenses before July 1, 2006.

At the proposal of the Minister of Planning and Investment,

2. Change of investment license or business license for joint venture projects that have been granted licenses before July 1, 2006.

PART I
GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree stipulates:

3. Rights and obligations of foreign-invested enterprises that have been granted investment licenses before July 1, 2006 when they re-register or have not yet re-registered, and parties involved in joint venture contracts that have not changed their investment licenses or business licenses according to the Enterprise Law and the Investment Law.

4. Adjustment of investment licenses for foreign-invested enterprises that have been granted investment licenses before July 1, 2006 but have not yet re-registered, or joint venture contracts that have not changed their investment licenses or business licenses.

5. Foreign-invested enterprises established and operating in accordance with specialized laws shall apply the provisions of such laws for re-registration.

1. Foreign-invested enterprises that have been granted investment licenses before July 1, 2006 include:

a) Joint ventures;

Article 2. Applicability

b) Wholly foreign-owned enterprises;

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.

3. State management agencies responsible for implementing the re-registration and registration of conversion of foreign-invested enterprises and the change of investment licenses or business licenses.

1. "Re-registration" means the act of enterprises specified in Article 2 of this Decree registering to operate in accordance with the Enterprise Law.

2. "Conversion of enterprise" means the act of enterprises specified in Article 2 of this Decree changing their corporate forms in accordance with the Enterprise Law.

Article 3. Explanation of Terms

3. "Change of investment license" means the act of parties participating in joint venture contracts performing procedures to change their investment licenses or business licenses granted before July 1, 2006 into investment certificates.

4. "Re-registered enterprise" means enterprises specified in Article 2 of this Decree which have completed re-registration and have been issued investment certificates.

5. "Converted enterprise" means enterprises specified in Article 2 of this Decree which have changed their corporate forms in accordance with the Enterprise Law.

6. "Enterprise that has not re-registered" means enterprises specified in Article 2 of this Decree which have not yet completed re-registration in accordance with the Enterprise Law and this Decree.

5. "Transformed enterprise" is an enterprise as defined in Article 2 of this Decree that has changed its business form in accordance with the Enterprise Law.

6. "Unreregistered enterprise" is an enterprise as defined in Article 2 of this Decree that has not completed the re-registration as required by the Enterprise Law and this Decree.

Article 4. Right to Re-register, Convert Business and Change Investment Permit

1. Foreign-invested enterprises that have been granted an Investment License before July 1, 2006 shall have the right to decide on the time for re-registration, conversion of the business, and organization of management activities in accordance with the laws on enterprises, investment laws, and this Decree.

Foreign-invested enterprises established before July 1, 2006, which have exceeded their operating period as specified in the Investment License after July 1, 2006, have not completed the dissolution procedures, and request to continue operations must re-register before February 1, 2014.

2. Parties involved in a joint venture contract have the right to apply to change the Investment License to obtain an Investment Certificate in accordance with the provisions of the Investment Law.

Article 5. Re-registration, Conversion of Enterprises with Non-Reimbursable Transfer Commitments

1. Foreign-invested enterprises where foreign investors have committed or agreed and stipulated in the Investment License to make a non-reimbursable transfer of assets according to the initial commitment or agreement to the State of Vietnam, the Government of Vietnam, or the Vietnamese Party after the end of the operating period may re-register or convert the enterprise when meeting the following conditions:

a) Not changing the content of the non-reimbursable transfer commitment. Continuing to inherit and implement the investment project related to the non-reimbursable transfer commitment;

b) Not extending the implementation period of the investment project.

2. In cases where the content of the non-reimbursable transfer commitment stipulated in the Investment License is changed, the re-registration or conversion of the enterprise in accordance with this Decree must be approved by the Prime Minister.

Article 6. Re-registration for Foreign-Invested Enterprises Granted an Investment License Before July 1, 2006, Which Have Exceeded Their Operating Period After July 1, 2006, But Have Not Been Dissolved and Request to Continue Operations

1. Foreign-invested enterprises that have exceeded their operating period according to the Investment License after July 1, 2006, but have not been dissolved and request to continue operations may re-register when meeting the following conditions:

a) The business sectors of the enterprise do not belong to prohibited business sectors. If the business sectors of the enterprise belong to conditional business sectors, the enterprise must meet the conditions prescribed by law at the time of re-registration;

b) The project must comply with planning: urban infrastructure structure, land use planning, construction planning, mineral exploration, exploitation, processing planning, and other resource planning;

c) Commitment to bear responsibility for obligations and transactions from the expiration date of operation to the re-registration date;

d) Commitment to fully fulfill financial obligations to the state;

e) The enterprise still has capital stock; or if it does not have capital stock, it must commit to increase capital stock to at least the registered capital within a maximum of three years from the re-registration date.

2. Apply investment incentives and obligations for foreign-invested enterprises that have exceeded their operating period after July 1, 2006, but have not been dissolved and request re-registration to continue operations.

a) Apply in accordance with the provisions of the law corresponding to each period from the expiration date of operation recorded in the Investment License to the re-registration date; and

b) From the re-registration date, apply in accordance with the current law at the re-registration date.

3. The Investment Certificate issued to the enterprise shall take effect from the date of expiration of the operating period according to the Investment License.

4. The enterprise must complete re-registration before February 1, 2014. After the deadline, the enterprise must complete the dissolution procedures and cease operations in accordance with the law if it does not re-register.

Chapter II
RE-REGISTRATION AND CONVERSION OF ENTERPRISESWITH FOREIGN INVESTMENT CAPITAL

Article 7. Forms of re-registration of enterprises

1. A wholly foreign-owned enterprise with one investor shall be re-registered as a limited liability company with one member.

2. A joint venture enterprise and a wholly foreign-owned enterprise with two or more investors shall be re-registered as a limited liability company with two or more members.

3. A joint-stock company shall be re-registered as a joint-stock company.

Article 8. Documents for re-registration of enterprises

1. The documents for re-registration include:

a) An application for re-registration signed by the legal representative of the enterprise, accompanied by a list of members of a limited liability company with two or more members or a list of founding shareholders of a joint-stock company after re-registration;

b) A valid copy of the Investment License, amended Investment Licenses, and Certificate of Amendment to the Investment License (if applicable);

c) A draft of the Amended Articles of Association in compliance with the laws on enterprises;

d) Minutes of the Board of Directors meeting for a joint venture enterprise; Minutes of the Board of Directors meeting or a unified document of foreign investors (in case there are multiple foreign investors) or of the investor for a wholly foreign-owned enterprise; Minutes of the General Shareholders' Meeting of a joint-stock company regarding agreement on re-registration of the enterprise and approval of the Articles of Association (amended);

e) Decisions of the owner or owners of the enterprise or the Board of Directors of a wholly foreign-owned enterprise or decisions of the Board of Directors of a joint venture enterprise or decisions of the General Shareholders' Meeting of a joint-stock company with foreign investment regarding re-registration of the enterprise and approval of the Articles of Association (amended);

f) Certificates of individuals and legal entities who are members of the enterprise after re-registration and of the legal representative of the enterprise after re-registration;

g) Financial reports for the two consecutive years at the time of re-registration;

h) Other relevant documents as prescribed by law concerning the adjusted content.

2. For enterprises specified in Article 6 of this Decree, in addition to the documents prescribed in Clause 1 of this Article, the enterprise shall submit additional documents as follows:

a) A commitment to bear responsibility for obligations and transactions carried out from the expiration date of operations until the re-registration date and a commitment to fully fulfill financial obligations to the State;

b) Report on production and business activities of the year before the expiration of the Investment License up to the re-registration date (Form No. 04-CS/SXKD) as prescribed in Circular No. 04/2011/TT-BKHĐT dated March 31, 2011 of the Ministry of Planning and Investment on the system of basic statistical reporting forms applicable to state-owned enterprises, enterprises, and projects with direct foreign investment.

3. In cases where the enterprise requests adjustments to the business registration content and project investment content during re-registration, in addition to the documents prescribed in Clauses 1 and 2 of this Article, corresponding documents must be supplemented according to the provisions of the laws on investment and enterprises.

4. The re-registration documents shall be prepared in three sets, including at least one original set. In cases requiring review and seeking opinions from ministries and sectors or submitting to the Prime Minister, the documents shall be prepared in ten sets, including at least one original set.

Article 9. Procedure and formalities for re-registering enterprises

1. An enterprise requesting re-registration shall submit the application dossier in accordance with the provisions of this Decree to the agency issuing the Investment Certificate.

2. In cases where opinions from ministries and sectors are not required, within fifteen working days from the date of receipt of a complete and valid dossier, the agency issuing the Investment Certificate shall examine and issue the Investment Certificate.

3. In cases where opinions from relevant ministries and sectors are required, the time limit for examining and issuing the Investment Certificate shall not exceed forty-five working days from the date of receipt of a complete and valid dossier. The agencies asked for their opinions must provide written comments within fifteen working days from the date of receipt of the dossier.

4. In cases where approval is not granted or there is a request to amend or supplement the dossier, the agency issuing the Investment Certificate shall notify the enterprise in writing and specify the reasons.

5. The agency issuing the Investment Certificate shall record on the Investment Certificate all contents prescribed regarding rights, obligations, investment incentives, and commitments or conditions (if any) stipulated in the Investment License and amended Investment Licenses or Investment License adjustment certificates (if any).

6. An enterprise re-registering must return the original Investment License, amended Investment Licenses, and Investment License adjustment certificates (if any) to the agency issuing the Investment Certificate when receiving the Investment Certificate.

Article 10. Rights and Obligations of Enterprises Re-registering

1. An enterprise re-registering shall inherit all lawful rights and benefits, be responsible for unpaid debts, labor contracts, and other obligations of the enterprise before re-registration.

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

a) To operate in accordance with the provisions of the Investment Certificate;

b) To continue to enjoy investment incentives during the period of operation under the conditions stipulated in the Investment License;

c) To retain the enterprise name, seal, bank account, tax code registered, except in cases where such information has been changed due to re-registration; or is required to be changed to comply with the laws on enterprises, investment laws, and other related regulations; or at the investor's request to comply with the law;

d) Other rights as prescribed by law.

3. An enterprise re-registering shall have the following obligations:

a) To continue implementing commitments or conditions (if any) stipulated in the Investment License;

b) To bear responsibility for the truthfulness and accuracy of the content of the re-registration dossier;

c) To comply with the laws on enterprises, investment, and related laws.

Article 11. Dossier for Enterprise Conversion

1. In cases of simultaneous enterprise conversion and re-registration, the dossier shall include:

a) A request for re-registration and enterprise conversion signed by the legal representative of the enterprise, accompanied by a list of members of a limited liability company with two or more shareholders or a partnership, or a list of founding shareholders of the enterprise after conversion;

b) A draft of the amended Articles of Association of the enterprise in compliance with the laws on enterprises;

c) A decision on re-registration and enterprise conversion made by the owner or owners of the business or the Board of Directors of a wholly foreign-owned enterprise, the Board of Directors of a joint venture enterprise, or the General Meeting of Shareholders of a joint-stock company.

The decision on re-registration and enterprise conversion must contain the main contents about: the name and principal address of the converting enterprise and the enterprise after conversion; the term and conditions for transferring assets, capital contributions, shares, bonds of the foreign-invested enterprise into assets, capital contributions, shares, bonds of the converting enterprise; the labor utilization plan; the term for implementing the conversion;

d) A certified copy of the Investment License and amended Investment Licenses or Investment License adjustment certificates (if any);

đ) Financial statements for two consecutive years at the time of conversion;

e) Relevant documents in accordance with the law concerning adjusted contents.

2. In cases of simultaneous enterprise conversion and re-registration as provided for in Clause 1 of this Article, if new members or shareholders are added, in addition to the above documents, the dossier shall also include:

a) For new individual members, a certified copy of the Identity Card or Passport or other legally recognized personal identification documents according to current regulations;

b) For new corporate members, a certified copy of the Decision on Establishment of the Corporate Entity, Business Registration Certificate, or equivalent documents of the corporate entity; if it is a representative authorized by proxy, then a Power of Attorney (which must include the content, scope, and duration of the authorization), Identity Card or Passport or other legally recognized personal identification documents.

For new foreign corporate members, the certified copies of the Business Registration Certificate and Articles of Association or equivalent documents must be legalized consularly according to current regulations within no more than three months prior to the submission of the dossier.

3. In cases of enterprise conversion after the enterprise has re-registered, the dossier shall be implemented in accordance with the corresponding provisions of the Law on Enterprises, the Law on Investment, and guiding documents.

4. The dossier for enterprise conversion shall be prepared in five sets, including at least one original set. In cases where the content requires submission to the Prime Minister or requires opinions from ministries and sectors, the dossier shall be prepared in ten sets, including at least one original dossier.

Article 12. Procedures and formalities for converting a business

1. In cases where a business conversion is simultaneously registered, the business shall submit the application dossier in accordance with Clause 1 of Article 11 of this Decree at the investment certificate issuing authority.

2. The decision on re-registration and business conversion must be sent to all creditors and notified to employees within fifteen days from the date of passing the decision.

3. In cases where opinions of ministries and sectors are not required, within fifteen working days from the date of receiving complete and valid dossiers, the investment certificate issuing authority shall examine and issue the investment certificate.

4. In cases where opinions of relevant ministries and sectors are required, the time for examining and issuing the investment certificate shall not exceed forty-five working days from the date of receiving complete and valid dossiers. The consulted agencies shall provide their opinions in writing within fifteen working days from the date of receiving the dossier.

5. In cases where approval is not granted or there is a request to amend or supplement the dossier, the investment certificate issuing authority shall notify the business in writing and specify the reasons.

6. The investment certificate issuing authority shall record in the investment certificate the contents stipulated regarding rights, obligations, investment incentives, and commitments or conditions (if any) of the investment permit and amended investment permits or investment certificate adjusting the investment permit (if any).

7. The business must return the original investment permit, amended investment permits, and investment certificate adjusting the investment permit (if any) to the investment certificate issuing authority when receiving the investment certificate.

Article 13. Rights and obligations of converted businesses

1. A business has the right to simultaneously convert and re-register the business.

2. The converted business inherits all legitimate rights and interests, bears responsibility for unpaid debts, labor contracts, and other obligations of the business before the conversion.

3. The converted business continues to enjoy investment incentives and fulfill commitments and conditions recorded in the investment permit for approved projects.

4. The converted business must meet the conditions prescribed by relevant laws for each specific case of conversion.

5. The business is responsible for the truthfulness and accuracy of the content of the business conversion dossier.

6. The converted business has other obligations and rights as prescribed by law.

Chapter III
REGISTRATION TO AMEND THE INVESTMENT PERMIT FORJOINT VENTURE CONTRACTS

Article 14. Dossier for registration to amend the Investment Permit for Joint Venture Contracts

1. The dossier for registration to amend the Investment Permit includes:

a) An application for amending the Investment Permit signed by the parties involved in the joint venture contract;

b) Amended joint venture contract (if there are amendments);

c) A certified copy of the Investment Permit or Business Registration Certificate, and amended Investment Permits or Business Registration Certificates (if any).

2. If the parties involved in the joint venture contract require adjustments to contents related to the investment project and the joint venture contract, the dossier above shall also include corresponding documents as prescribed by law in relation to the proposed adjustments.

3. The dossier to amend the Investment Permit shall be prepared in three sets, including at least one original set. In cases requiring submission to the Prime Minister or seeking opinions from ministries and sectors, the dossier shall be prepared in ten sets, including at least one original set.

Article 15. Procedures and formalities for registering to change the Investment License for Joint Business Contracts

1. The parties participating in the joint business contract shall submit the application dossier in accordance with the provisions of this Decree at the agency issuing the Investment Certificate.

2. Within seven working days from the date of receiving a complete and valid dossier, the agency issuing the Investment Certificate shall examine and issue the Investment Certificate.

3. In cases where opinions from relevant Ministries and agencies are required, the time for examining and issuing the Investment Certificate shall not exceed forty-five working days from the date of receiving a complete and valid dossier. The consulted agency shall provide its opinion in writing within fifteen working days from the date of receipt of the dossier.

4. In cases where approval is not granted or there is a request to amend or supplement the dossier, the agency issuing the Investment Certificate shall notify the parties participating in the joint business contract in writing and specify the reasons.

5. The agency issuing the Investment Certificate shall be responsible for recording in the Investment Certificate the contents stipulated regarding rights, obligations, investment incentives, and commitments or conditions (if any) of the Investment License or Business License or other adjusting licenses (if any).

6. The parties participating in the joint business contract shall be responsible for returning the original Investment License or Business License and other adjusting licenses (if any) to the agency issuing the Investment Certificate upon receipt of the Investment Certificate.

Article 16. Rights and Obligations of the Parties Participating in the Joint Business Contract in the Case of Changing the Investment License

1. To inherit the rights and obligations stipulated in the Investment License or Business License and other adjusting licenses (if any) in the signed joint business contract.

2. To bear responsibility for the truthfulness and accuracy of the content of the application dossier for changing the Investment License.

3. To have other rights and obligations as prescribed by the Enterprise Law and the Investment Law.

Chapter IV
UNREGISTERED ENTERPRISES AND PARTIES TO THE JOINT BUSINESS CONTRACT THAT HAVE NOT YET CHANGED THE INVESTMENT LICENSEJOINT BUSINESS CONTRACTS THAT HAVE NOT YET CHANGED THE INVESTMENT LICENSE

Article 17. Rights and Obligations of Unregistered Enterprises

1. To continue organizing and operating in accordance with the provisions of the Investment License and the Enterprise Charter. For matters not specified in the Investment License and the Enterprise Charter, the enterprise shall implement in accordance with the provisions of the Enterprise Law, the Investment Law, and related laws, specifically as follows:

a) A wholly foreign-owned enterprise with one investor shall apply the corresponding provisions applicable to a limited liability company with one member.

b) A wholly foreign-owned enterprise with two or more investors and a joint venture enterprise shall apply the corresponding provisions applicable to a limited liability company with two or more members.

c) An enterprise stipulated in Point c Clause 1 Article 2 of this Decree shall apply the corresponding provisions applicable to a joint-stock company.

2. To propose amendments to the Enterprise Charter and amendments to the Investment License except for changes to the duration of operation and changes to the business fields that alter the duration of operation recorded in the Investment License.

3. To retain the enterprise name, seal, bank account, and tax code registered unless the investor requests a change to comply with the law.

4. To implement new investment projects in accordance with the laws on investment. The duration of operation of new investment projects shall be consistent with the duration of the enterprise stipulated in the Investment License.

5. To have other rights and obligations as prescribed by the laws on enterprises, the laws on investment, and related laws.

Article 18. Rights and Obligations of Parties Participating in Business Cooperation Contracts Without Changing Investment License or Business License

1. The parties participating in business cooperation contracts have the right to continue operating under the Investment License or Business License and the adjusted Investment License or adjusted Business License (if any), and the signed Business Cooperation Contract.

2. The parties participating in business cooperation contracts shall fulfill the obligation to comply with investment laws and related laws.

3. During the course of operation, the parties participating in business cooperation contracts without changing the Investment License or Business License have the right to request review and adjustment of the Investment License or Business License.

Article 19. Adjustment of Investment License for Enterprises Not Re-registering and Adjustment of Investment License or Business License for Business Cooperation Contracts Without Changing Investment License or Business License

1. The agency issuing the Investment Certificate will consider the request to adjust the Investment License of enterprises not re-registering or the Investment License or Business License of business cooperation contracts without changing the Investment License or Business License according to the provisions of the law; approve the adjustment of the Investment License or Business License in the form of an Investment License Adjustment Certificate or Business License Adjustment Certificate. In case the investor requests, the agency issuing the Investment Certificate will issue a new Investment Certificate to replace the previously issued licenses and record all contents of the previous licenses in the new Investment Certificate.

2. Investment conditions, investment incentives, and other conditions of the adjusted and supplemented content shall be applied according to the provisions of the law at the time of adjustment and supplementation.

3. Contents not adjusted or supplemented shall continue to be implemented according to the provisions of the previously issued Investment License or Business License.

4. For enterprises not re-registering, the agency issuing the Investment Certificate issues a written approval without adjusting the Investment License in the following cases:

a) Establishing a Transaction Office, Representative Office, Warehouse, Product Showcase (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, except in the case of transferring between inside and outside industrial zones, economic zones, high-tech zones.

If the enterprise needs to adjust the Investment License for the content specified in Point a and b Clause 4 of this Article, the agency issuing the Investment Certificate will implement the adjustment of the Investment License according to the regulations.

Article 20. Procedures and Formalities for Adjusting Investment License for Enterprises Not Re-registering and Adjusting Investment License or Business License for Business Cooperation Contracts Without Changing Investment License or Business License

1. Enterprises not re-registering, and the parties participating in business cooperation contracts without changing the Investment License or Business License submit a request for adjustment according to the regulations stipulated in the Decree guiding the implementation of certain articles of the Investment Law to the agency issuing the Investment Certificate for consideration and adjustment. Enterprises and the parties participating in business cooperation contracts must bear responsibility for the truthfulness and accuracy of the content of the adjustment dossier.

2. The dossier, procedures, and formalities for issuing an Investment License Adjustment Certificate or Business License Adjustment Certificate are carried out according to the provisions of the Investment Law, Enterprise Law, and guiding documents.

3. Within fifteen working days from the date of receiving a complete and valid dossier, the agency issuing the Investment Certificate will examine and issue an Investment License Adjustment Certificate or Business License Adjustment Certificate.

4. In cases where opinions from relevant ministries and sectors need to be sought, the time for examining and issuing the Investment Certificate shall not exceed forty-five working days from the date of receiving a complete and valid dossier. The consulted agency provides its opinion in writing within fifteen working days from the date of receipt of the dossier.

5. In cases where approval is not granted or there is a requirement to amend or supplement the dossier, the agency issuing the Investment Certificate sends a written notice to the investor, clearly stating the reasons.

Chapter V
IMPLEMENTING PROVISIONS

Article 21. Implementation clause

1. This Decree takes effect from January 15, 2014, except for the provision in Clause 2 of this Article.

2. The content regarding re-registration for foreign-invested enterprises that were granted investment licenses before July 1, 2006, but whose operational period has expired after July 1, 2006, and have not been dissolved and request to continue operations as stipulated in Article 6 of this Decree shall be implemented from January 1, 2014.

3. This Decree replaces Decree No. 101/2006/NĐ-CP dated September 21, 2006, of the Government on re-registration, conversion, and registration of change of Investment Certificate for foreign-invested enterprises according to the Enterprise Law and Investment Law, and Decree No. 38/2003/NĐ-CP dated April 15, 2003, of the Government on the shareholding reform of foreign-invested enterprises.

4. The Ministers, Heads of ministerial-level agencies, Heads of government agencies, Chairpersons of provincial People's Committees under central cities are responsible for implementing this Decree./.