Nghị định 62/1998/ND-CP

DECREE

PROMULGATING THE REGULATION ON INVESTMENT IN FORMS OF BUILD-OPERATE-TRANSFER CON-TRACTS, BUILD-TRANSFER-OPERATE CONTRACTS AND BUILD-TRANSFER CONTRACTS APPLICABLE TO FOREIGN INVESTMENT IN VIETNAM

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;
Pursuant to the Law on Foreign Investment in Vietnam passed on November 12, 1996 by the National Assembly;
In order to encourage the investment in construction and development of infrastructure projects in Vietnam;
At the proposal of the Minister of Planning and Investment,

DECREES:

Article 1.- To promulgate together with this Decree the Regulation on investment in forms of build-operate-transfer contracts, build-transfer-operate contracts and build-transfer contracts applicable to foreign investment in Vietnam.

Article 2.- This Decree takes effect 15 days after its signing and replaces Decree No.87-CP of November 23, 1993 of the Government promulgating the Regulation on investment in form of build-operate-transfer contracts.

Article 3.- The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the People's Committees of the provinces and cities directly under the Central Government shall have to implement this Decree.

THE REGULATION

 ON INVESTMENT IN FORMS OF BUILD-OPERATE-TRANSFER CONTRACTS, BUILD-TRANSFER-OPERATE CONTRACTS AND BUILD-TRANSFER CONTRACTS APPLICABLE TO FOREIGN INVESTMENT IN VIETNAM

(Issued together with Decree No.62/1998/ND-CP of August 15, 1998 of the Government)

Chapter I

GENERAL PROVISIONS

Article 1.- In this Regulation, the following terms shall be understood as follows:

1. "Build-operate-transfer contract" (or BOT in abbreviation) is a document signed between a Vietnamese competent State agency and a foreign investor to build an infrastructure project (including expansion, upgrading and/or modernization of an existing project) and put it into business operation for a certain period of time in order to retrieve the investment capital and earn reasonable profits; upon the expiry of the business operation duration, the foreign investor shall transfer such project to the Vietnamese State without requiring any indemnity.

2. "Build-transfer-operate contract" (or BTO in abbreviation) is a document signed between a Vietnamese competent State agency and a foreign investor to build an infrastructure project (including expansion, upgrading and/or modernization of an existing project); and upon the completion of the construction, the foreign investor shall transfer such project to the Vietnamese State; the Vietnamese Government shall give the foreign investor the right to do business with such project for a certain duration in order to retrieve investment capital and earn reasonable profits.

3. "Build-transfer contract" (or BT in abbreviation) is a document signed between a Vietnamese competent State agency and a foreign investor to build an infrastructure project (including expansion, upgrading and/or modernization of an existing project); upon the completion of the construction, the foreign investor shall transfer such project to the Vietnamese State and the Vietnamese Government shall create conditions for the foreign investor to implement another project to retrieve investment capital and earn reasonable profits.

4. "BOT enterprises", "BTO enterprises", "BT enterprises" (hereafter collectively referred to as BOT enterprises) are joint venture enterprises or enterprises with 100% of foreign investment capital, established under the provisions of the Law on Foreign Investment in Vietnam to execute BOT, BTO and/or BT contracts.

5. "State agencies competent to sign BOT, BTO and/or BT contracts" (hereafter referred to as the competent State agencies) are ministries, agencies attached to the Government or People's Committees of provinces or centrally-run cities designated by the Prime Minister to sign and execute BOT, BTO and/or BT contracts with foreign investors.

6. "Foreign investors signing BOT, BTO and/or BT contracts" are foreign organizations and/or individuals that execute BOT, BTO and/or BT projects (hereafter referred to as the foreign investors) and take full responsibility for their commitments made in the BOT, BTO and/or BT contracts.

7. "Subcontractors" are Vietnamese or foreign contractors who sign contract with BOT enterprises to participate in the execution of part of a BOT, BTO or BT project.

8. "Subcontract" is a contract signed between a BOT enterprise and a subcontractor, whereby the latter participates in the execution of a part of a BOT, BTO or BT project.

9. "Another project" is a project associated with a BT project and to be executed by a licensed foreign investor under the Law on Foreign Investment in Vietnam in order to retrieve the capital already invested in the BT project.

Article 2.-

1. The Vietnamese Government encourages foreign organizations and individuals to invest in the forms of BOT, BTO or BT contracts in such fields as communication and transport, electricity generation and trading, water supply and drainage, waste treatment and other fields decided by the Prime Minister.

2. The Vietnamese Government protects the ownership over the investment capital and other legitimate interests of foreign organizations and individuals that make investment in forms of BOT, BTO and/or BT contracts in Vietnam; and at the same time, creates favorable conditions, including simpler and quicker procedures, for the execution of such projects.

3. The Vietnamese Government gives preferential treatment to BOT enterprises and subcontractors as stipulated in Chapter II of this Regulation.

Article 3.-

1. To execute BOT, BTO and/or BT projects, foreign investors shall establish BOT enterprises.

2. BOT enterprises shall be established and operate from the date they are granted investment licenses; have to abide by the stipulations in their investment licenses as well as the foreign investors' commitments under BOT, BTO or BT contracts.

Chapter II

THE INVESTMENT PREFERENCES AND GUARANTY

Article 4.-

1. The taxes applicable to BOT enterprises are prescribed as follows:

- A profit tax rate of 10% of the generated profit shall be applied throughout the project execution duration.

The profit tax shall be exempted for the first four years starting from the date the business operation generates profits and reduced by 50% for four subsequent years. In cases where the investment is made in geographical areas where investment is encouraged, the profit tax shall be exempted for eight years starting from the date the business operation generates profits.

The duration of tax exemption and/or reduction shall be continuously calculated from the first year of profitable business operation.

- The applicable rate of tax on profit remitted abroad shall be equal to 5% of the profit amount remitted abroad.

- In addition to the above-said taxes, BOT enterprises shall also have to pay other taxes as prescribed by the Vietnamese law.

2. Foreign subcontractors participating in BOT, BTO and/or BT projects shall pay taxes and enjoy tax exemption and/or reduction in accordance with to the current regulations applicable to foreign contractors.

Vietnamese subcontractors participating in BOT, BTO and/or BT projects shall fulfill their tax obligations in accordance with the current regulations applicable to Vietnamese enterprises.

Article 5.-

1. BOT enterprises and subcontractors, during the execution of BOT, BTO and/or BT projects, shall be exempt from import tax on:

- Equipment and machinery imported to form the fixed assets (including equipment, machinery and spare parts to be used in the survey, designing and construction of projects);

- Specialized transport means as part of technological chain imported to form the fixed assets and conveyance means for carrying workers (automobiles with 24 seats or more, waterway transport means);

- Components, details, knocked down parts, spare parts, assembly parts, molds, prototypes and auxiliary parts accompanying equipment, machinery, specialized transport means, conveyance means as mentioned above, including the cases where they are used for replacement, warranty and/or maintenance during the process of operating the projects;

- Fuels, raw materials and materials imported for the execution BOT, BTO and/or BT projects, including those in service of the production and operation of projects.

2. The import tax exemption for equipment, machinery, transport means, raw materials and materials mentioned in Clause 1 of this Article shall be applicable also to the project expansion and the technological replacement or renewal.

3. Import goods mentioned in Clauses 1 and 2 of this Article must not be sold on the Vietnamese market. In cases where they are sold on the Vietnamese market, permissions from the Ministry of Trade are required and import tax, turnover tax or special consumption tax thereon must be paid in accordance with the provisions of Vietnamese law.

4. For other projects executed in association with BT contracts, the importation and payment of import tax shall comply with the provisions of Article 63 of Decree No.12-CP of February 18, 1997 of the Government detailing the implementation of the Law on Foreign Investment in Vietnam and Article 10 of Decree No.10/1998/ND-CP of January 23, 1998 of the Government on a number of measures to encourage and guarantee foreign direct investment in Vietnam.

5. Industrial property objects which are in the protection duration, technical knowhows, technological processes and technical services for the execution of projects shall be exempt from taxes related to technology transfer.

Article 6.-

1. The capital transfer within BOT enterprises shall be conducted in accordance with the provisions of Article 34 of the Law on Foreign Investment in Vietnam and Article 64 of Decree No.12-CP of February 18, 1997 of the Government detailing the implementation of the Law on Foreign Investment in Vietnam.

2. A capital transfer shall be effective only after it is approved by the competent State agency and the capital transfer contract is approved by the investment license granting agency.

Article 7.-

1. BOT enterprises and subcontractors are entitled to open foreign currency and Vietnamese currency bank accounts and borrowed capital accounts according to Article 71 of Decree No.12-CP of February 18, 1997 of the Government detailing the implementation of the Law on Foreign Investment in Vietnam and the documents concerning the foreign exchange management.

2. The State Bank of Vietnam ensures that BOT enterprises shall be entitled to convert their Vietnamese currency amounts earned from the execution of the BOT, BTO, BT and other projects into foreign currency(ies), to meet their business operation requirements, pay principals and interests of borrowings or remit profits and capital abroad.

BOT enterprises are entitled to use their lawful incomes in Vietnamese currency from the execution of the BOT, BTO and/or BT projects to buy goods for export or for processing before directly exporting them in accordance with the regulations of the Ministry of Trade in order to create sources of foreign currency(ies) to meet their business operation requirements.

Article 8.-

1. During the process of project execution, BOT enterprises are entitled to pledge and/or mortgage the following property, according to the provisions of Vietnamese laws:

a) Equipment, workshops, architectural works and immovable assets procured and/or built with their own investment capital;

b) Other property under the ownership of the BOT enterprises;

c) The land use right value as stipulated by Vietnamese law;

d) The property rights of the BOT enterprises.

2. The pledges and/or mortgages made by BOT enterprises must be approved by the competent State agency and must not affect the projects' objectives, schedule and operation as provided for in the contracts and must conform with the provisions of Vietnamese law.

3. Pledges and mortgages must be made in writing in accordance with provisions of Vietnamese law and the copies thereof must be submitted to the competent State agency(ies).

Article 9.-

1. The Government ensures that BOT enterprises shall be entitled to use land, traffic roads and other public facilities for the execution of their BOT, BTO and/or BT projects.

2. BOT enterprises are exempt from land rent during the period of project execution.

3. The People's Committees of the provinces and cities directly under the Central Government where investment projects are executed shall have to organize the site clearance and compensation therefor, and complete the procedures for assigning land to the BOT enterprises in accordance with provisions of law and within the agreed time limit.

The expenses for site clearance and compensation therefor shall be paid by the foreign investors and accounted into their in total investment capital, unless otherwise provided for in the BOT, BTO and BT contracts.

Article 10.-

1. Vietnamese enterprises shall participate in BOT, BTO and/or BT projects when they are so permitted by the competent State agency(ies).

2. In cases of necessity and depending on the nature of the projects, the Vietnamese Government may authorize competent State agency(ies) to represent the Government in guaranteeing the fulfillment of financial obligations committed by Vietnamese enterprises participating in the execution of projects as defined in BOT, BTO and/or BT contracts; and guarantee the obligations of Vietnamese enterprises in the sale of raw materials and purchase of main products and services for the execution of BOT, BTO and BT projects.

Article 11.- In the course of project execution, all organizations and individuals shall have to abide by the regulations on foreign exchange management, export and import, technology transfer, environmental protection, labor relations, accounting, statistics, entry and exit and other relevant regulations of Vietnamese laws.

Chapter III

THE MODES OF EXECUTION OF BOT, BTO AND BT PROJECTS

Article 12.-

1. Basing itself on the socio-economic development planning and orientation for each period, the Ministry of Planning and Investment shall assume the prime responsibility and coordinate with the ministries, branches and People's Committees of the provinces and cities directly under the Central Government in submitting to the Prime Minister for approval the lists of investment projects in forms of BOT, BTO and BT contracts.

2. The Prime Minister may also approve BOT, BTO and/or BT projects outside the publicized lists after consulting the concerned ministries, branches and People's Committees of the provinces and cities directly under the Central Government where the projects are expected to be executed.

3. The investment projects under BOT, BTO or BT contracts submitted to the Prime Minister as mentioned in Clauses 1 and 2 of this Article must clearly state their necessity, locations, designed capacities and projected investment capital; and propose to the competent State agency the mode of selecting foreign investors to sign BOT, BTO or BT contracts.

Article 13.-

1. On the basis of the lists of BOT, BTO and/or BT projects and the mode of selecting foreign investors to sign BOT, BTO and BT contracts already approved, the competent State agency(ies) shall direct the elaboration of pre-feasibility studies to serve as basis for compiling the dossiers on the selection of foreign investors. The competent State agency(ies) shall consider and adopt the pre-feasibility studies.

The expenses for elaboration of pre-feasibility studies funded by the competent State agency(ies) shall be approved in accordance with regulations. If a project is executed, the expenses for elaboration of its pre-feasibility study shall be accounted into the project's investment capital and the BOT enterprise shall have to reimburse such expenses to the State budget.

2. Foreign investors elaborating pre-feasibility studies for BOT, BTO and/or BT projects defined in Clause 2, Article 12 shall submit them to the competent State agencies for consideration and approval. In cases where their pre-feasibility studies are approved by the competent State agencies, the foreign investors shall be entitled to submit their dossiers of application for investment licenses.

Article 14.-

1. The procedures and modes for selecting foreign investors to sign BOT, BTO and/or BT contracts shall comply with Vietnam's legislation on bidding.

2. The results of the selection of foreign investors to sign BOT, BTO and/or BT contracts must be approved by the Prime Minister.

Article 15.-

1. After the Prime Minister issues decisions to approve the results of the selection of foreign investors to sign BOT, BTO and/or BT contracts, such selected foreign investors shall have to elaborate feasibility studies to be submitted to the competent State agency(ies).

2. The competent State agency(ies) shall assume the prime responsibility and coordinate with the concerned ministries, branches and People's Committees of the provinces and cities directly under the Central Government in examining and approving the feasibility studies. In cases where exist the divergence of opinions or matters beyond its/their competence, the competent State agency(ies) shall refer them to the Prime Minister for decision.

Article 16.-

1. The competent State agency(ies) shall assume the prime responsibility in negotiating and signing BOT, BTO and/or BT contracts with the selected foreign investors. For important projects to be decided by the Government, the competent State agency(ies) shall have to submit to the Prime Minister for adoption the principles which serve as basis for negotiating and signing BOT, BTO and/or BT contracts.

2. The draft BOT, BTO and/or BT contracts, after being negotiated, agreed upon and initialed by the concerned parties, shall be submitted to the Ministry of Planning and Investment together with other documents relating to the application for investment licenses, for being evaluated, then submitted to the Prime Minister for consideration and approval. The BOT, BTO and/or BT contracts shall be officially signed only after they are approved by the Prime Minister.

Article 17.-

1. A dossier of application for investment license shall comprise:

- The investment application;

- The initialed BOT, BTO or BT contract;

- The joint venture contract (in case of a BOT joint venture enterprise);

- The statute of the BOT enterprise;

- The feasibility study report;

- The initialed contract or preliminary agreement on the purchase of raw materials and sale of products (if any);

- The documents certifying the legal status and financial status of the investor.

2. Particularly for a BT project, in addition to the above-said documents, the dossiers on other project(s) should be enclosed therewith according to the current regulations.

3. BOT, BTO and/or BT contracts and contracts for purchase of raw materials and/or sale of products (if any), after being officially signed, must be submitted to the Ministry of Planning and Investment.

Article 18.-

1. The Ministry of Planning and Investment shall grant investment licenses to BOT, BTO and BT projects within 15 days from the date the projects are approved by the Prime Minister.

2. An investment license shall include the following principal contents:

- The major terms of the contract;

- The size of investment capital, objectives and operation duration of the project;

- The designing and technical requirements, the state and conditions for normal operation of the project when it is transferred to the Vietnamese State;

- The tax and financial obligations;

- The right to use land and support facilities;

- The conditions for environmental protection;

- The principles for determining and readjusting prices and other charges;

- The regulations on conversion of Vietnamese currency into foreign currency(ies);

- The export and/or import of equipment, machinery and commodities;

- The right and conditions for dealing in BOT and/or BTO projects; the dealing in other projects as the result of the execution of BT projects;

- The principles for determining value of assets when they are transferred;

- The commitments made by the Government and the concerned State agencies.

Article 19.-

1. BOT enterprises shall make technical designs then submit them to the competent State agency(ies).

The competent State agency(ies) shall assume the prime responsibility and coordinate with the Ministry of Construction, the concerned ministries, branches and People's Committees of the provinces and cities directly under the Central Government in evaluating the technical designs before executing them.

After the technical designs of the projects are approved, the BOT enterprises can start the construction of the projects.

2. The investors and BOT enterprises shall be entitled to select subcontractors or organize biddings for the execution of BOT, BTO and/or BT projects and shall have to report on the selection of subcontractors or the bidding results to the competent State agencies.

3. The subcontractors, after signing subcontracts with the BOT enterprises, shall have to register their operations with the competent State agencies.

Article 20.-

1. The principles for determining prices, price levels, fees and other charges of BOT and BTO projects must be stipulated in BOT and BTO contracts.

2. The increase of prices, fees and other charges must be agreed upon and stipulated in BOT and BTO contracts. The readjustment of prices, fees and other charges must be announced to the competent State agencies 30 days in advance.

The readjustment of prices, fees and other charges beyond the scope projected and agreed upon in the contracts must be approved by the competent State agencies before its implementation.

Article 21.-

1. The terms of BOT, BTO or BT contracts, the time limit for the transfer of BOT, BTO and/or BT projects and the time limit for the commercial operation of BTO projects shall be agreed upon by the parties and clearly stated in the investment licenses in accordance with the legislation on foreign investment in Vietnam.

2. Upon the expiry of the commercial operation time limit of BOT projects, foreign investors shall transfer without any indemnity such projects to the Vietnamese State. For BTO and BT projects, upon the completion of their construction, the foreign investors shall transfer them to the State of Vietnam according to the conditions stipulated in the BTO and BT contracts.

3. The competent State agencies shall receive the transfer of BOT, BTO and BT projects in accordance with the provisions in Articles 22 and 23 of this Regulation.

Article 22.- When projects are transferred to the State of Vietnam, the State competent agencies and the BOT enterprises shall have to refer to the terms specified in the investment licenses and BOT, BTO and/or BT contracts. A dossier on the hand-over of a project shall include the following principal contents:

- The state of the project when being transferred;

- The list of transferred assets, including documents relating to the survey, designing, construction, installation, operation, maintenance and management of the project;

- Documents on the examination of the value and quality of the transferred project;

- The responsibilities of the parties for the continued operation of the transferred project;

- The duration and conditions for maintenance and warranty of the project after it is transferred;

- The contracts and other necessary conditions for the maintenance and operation of the project after it is transferred.

Article 23.- Before transferring BOT, BTO and/or BT projects, BOT enterprises shall have to carry out the maintenance, repair and necessary operations before the transfer of such projects as agreed upon in the BOT, BTO and/or BT contracts.

The competent State agencies shall only accept the project hand-overs under the conditions already specified in BOT, BTO or BT contracts and investment licenses.

Chapter IV

BOT, BTO AND BT CONTRACTSAND SUBCONTRACTS

Article 24.-

1.A BOT, BTO or BT contract must include the following principal contents:

- The nationalities, addresses and authorized representatives of the parties signing the contract;

- The operation objectives and scope;

- The investment capital and execution schedule;

- The capacity, technology and equipment, designing requirements and technical standards of the project; the quality standards and supervision and inspection of the project's quality;

- The regulations on environmental protection;

- The conditions for land use, infrastructure projects, support facilities necessary for the construction and operation of the project;

- The project construction schedule, the operation duration of the BOT enterprise and the time of transfer of the project;

- The rights and obligations of the parties and their commitments to guarantee and share risks;

- The stipulations on prices, fees and other charges;

- The obligation to maintain the normal operation of the project;

- The consultancy, evaluation of designs, equipment, construction, test upon completion, operation and maintenance;

- The technical conditions, operational state and quality of the project when it is transferred. The principles for determining the value of the project and the procedure for the transfer thereof;

- The validity of the contract and the cases of termination of the contract ahead of time, the stipulations on assignment of the contract;

- The agency(ies) which settles disputes between the parties signing the contract and the modes of settlement; the risk sharing between the BOT enterprise and the Government agency;

- The handling of violations committed by the parties that lead to the non-fulfillment of the terms of the contract;

- The cases of force majeure and handling principles;

- The stipulations on the support and commitment by the Government agencies;

- The conditions for executing another project following a BT contract.

2. To execute BOT, BTO and/or BT projects, the BOT enterprises shall be entitled to sign contracts for land use, construction, installation of machinery and equipment, consultancy and expertise services, purchase of raw materials and sale of products, main services, provision of technical services, capital borrowing, pledge or mortgage of property and other contracts as prescribed by Vietnamese law.

3. In cases where Vietnamese laws do not contain provisions governing the relations relating to the investment in forms of BOT, BTO and/or BT contracts, the parties may agree in their contracts on the application of foreign laws, provided that such agreements are not contrary to the provisions of Vietnamese law.

Article 25.-

1. The disputes arising between competent State agency(ies) and foreign investors in the course of executing BOT, BTO and/or BT contracts shall be first of all settled through negotiation and/or conciliation. If the disputes cannot be settled through negotiation and/or conciliation, the disputing parties may agree to have their disputes settled by an arbitration council to be set up upon their mutual agreement. The arbitration procedures and laws to be applied to settle the disputes shall be agreed upon by the disputing parties in the contracts.

2. The disputes arising among the parties in a BOT enterprise in the course of executing the contracts shall be settled in accordance with Clause 1, Article 102 of Decree No.12-CP of February 18, 1997 of the Government detailing the implementation of the Law on Foreign Investment in Vietnam.

3. The disputes arising between BOT enterprises and foreign organizations or individuals in the course of executing their contracts shall be first of all settled through negotiation and/or conciliation. If the disputing parties fail at such negotiation and/or conciliation, they may agree to have their disputes settled by a Vietnamese arbitration organization or an arbitration council to be set up upon their mutual agreement or an arbitration established and operating in a third country.

The disputes arising between BOT enterprises and Vietnamese economic organizations in the course of executing their contracts shall be settled in accordance with Clause 2, Article 102 of Decree No.12-CP of February 18, 1997 of the Prime Minister detailing the implementation of the Law on Foreign Investment in Vietnam.

4. The enforcement of arbitration awards shall comply with the provisions of Vietnamese laws and international treaties which Vietnam has signed or acceded to.

Chapter V

THE POWERS AND RESPONSIBILITIES OF THE COMPETENT STATE AGENCIES

Article 26.- The powers of the competent State agencies:

- To determine the economic-technical criteria of projects; and assume the prime responsibility for organizing the examination and adoption of pre-feasibility studies and feasibility studies;

- To negotiate, agree upon and decide the contents of BOT, BTO and/or BT contracts;

- To assume the prime responsibility and coordinate with the Ministry of Construction, the concerned ministries, branches and People's Committees of provinces and cities directly under the Central Government in examining and evaluating the technical designs of projects;

- To organize the construction supervision and take part in the expertise inspection of the quality of the projects during the construction period;

- To approve the contracts for purchase of raw materials and sale of main products and services, signed between BOT enterprises and Vietnamese specialized economic organizations in cases where the above-said contracts need to be guaranteed as stipulated in Clause 2, Article 10 of this Regulation;

- To supervise the contractual parties in fulfilling obligations they have committed to in BOT, BTO and/or BT contracts and subcontracts;

- To receive the transfer of the projects as stipulated.

Article 27.- The responsibilities of the competent State agencies:

- To support foreign investors in formulating and executing BOT, BTO and/or BT projects;

- To support BOT enterprises in completing the procedures in preparation for investment, construction and business (if any) in strict accordance with BOT, BTO and/or BT contracts and subcontracts;

- To assume the prime responsibility or coordinate with other State agencies in studying and settling lawful requirements of BOT enterprises in the course of executing BOT, BTO and/or BT projects;

- To fulfill the obligations committed to in BOT, BTO and BT contracts;

- To fulfill other obligations related to the management of operation of BOT, BTO and BT projects in accordance with provisions of law.

Article 28.- The expenses relating to the exercise of powers and the performance of responsibilities of the competent State agencies as defined in Articles 26 and 27 of this Regulation shall be taken from the State budget at the proposals of such competent State agencies and the Ministry of Finance.

Chapter VI

IMPLEMENTATION PROVISIONS

Article 29.- The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the People's Committees of the provinces and cities directly under the Central Government shall have to implement this Regulation.