Thông tư 02/2022/TT-BKHDT

CIRCULAR

ON GUIDELINES FOR SUPERVISION AND ASSESSMENT OF FOREIGN INVESTMENTS IN VIETNAM

Pursuant to the Investment Law dated June 17, 2020;

Pursuant to the Government’s Decree No. 29/2021/ND-CP dated March 26, 2021 on procedures for assessment of projects of national importance and investment supervision and inspection;

Pursuant to the Government’s Decree No. 31/2021/ND-CP dated March 26, 2021 on elaboration and guidelines for the implementation of the Law on Investment;

Pursuant to the Government’s Decree No. 86/2017/ND-CP dated July 25, 2017 on the functions, missions, authority and organizational structure of the Ministry of Planning and Investment;

At the request of the Head of Foreign Investment Agency;

The Minister of Planning and Investment promulgates a Circular on guidelines for supervision and assessment of foreign investments in Vietnam.

Chapter I

GENERAL PROVISIONS

Article 1. Scope and regulated entities

1. Scope of regulation

a) This Circular regulates the supervision and assessment of foreign investments in Vietnam.

b) The supervision and assessment of securities investment shall comply with the law on securities

2. Regulated entities

a) Regulatory bodies involved in foreign investment activities, i.e. ministries, ministerial-level bodies, provincial People's Committees, investment registries and investment authorities as per the laws on investment;

b) Foreign-invested enterprises and foreign-funded projects that are operating in the territories of Vietnam.

Article 2. Interpretation of terms

1. Foreign-funded projects are those:

a) executed by foreign-invested enterprises, enterprises specified in clause 1 Article 23 of the Investment Law and certified in writing for registration of investment as per the laws;

b) based on business cooperation contracts involving foreign investors or foreign-invested enterprises or enterprises as per Section 1, Article 23 of the Investment Law.

2. Inspections of the state management of foreign investment are carried out on periodic or ad hoc basis by central state management bodies on investment registries with regard to:

a) The issuance, amendment and revocation of certificates of investment registration;

b) Management activities following the issuance of certificates of investment registration;

c) The abidance by schemes and plans that competent authorities have approved.

Article 3. Principles of the supervision and assessment of foreign investments

1. Exercise authority, functions, missions and processes intra vires as per the laws.

2. Conduct inspections that do not overlap or duplicate in terms of subjects, time and contents; cooperate with others in activities of supervision, inspection and assessment.

3. Uphold promptness, neutrality, precision and strictness.

4. Be open and transparent, cause no impediment or adversity against routine activities of organizations, foreign-invested enterprises and foreign-funded projects that are subjected to supervision and assessment.

Article 4. Authority to supervise, inspect and assess foreign investments

1. Ministry of Planning and Investment

a) Supervise and assess the state management activities regarding foreign investments;

b) Supervise and evaluate foreign-funded projects in general;

c) Projects whose approval is in the discretion of Prime Minister, National Assembly; projects with large scale and great influence on socio-economic development; and other projects as assigned by the Government or Prime Minister.

2. Specialized state management agencies

a) Lead the supervision and assessment if the foreign-funded projects in relation to the fields under their management comply with regulations of special laws.

Ministries, specialized ministries shall mandate specialized local authorities to lead in-depth inspections and assessments in relevant fields. The local specialized authorities shall send reports on results of supervision and assessment of the projects in local areas to the specialized ministries and investment registries in local areas.

b) Specialized ministries shall supervise, inspect and assess foreign-funded projects, which operate in fields within the authority of such ministries to consider or certify the investments (or equivalent documents), according to specialized laws.

Specialized ministries shall send reports on performance of inspection and supervision on annual basis to the Ministry of Planning and Investment for the latter to compile information by March 01 of the year that succeeds the reporting year.

c) Organize the general supervision, inspection and assessment of foreign investment activities in sectors and fields intra vires.

3. Provincial People’s Committees

a) Organize the general supervision, inspection and assessment of foreign investment activities under the management of local authorities;

b) Lead or assign the Department of Planning and Investment to lead and cooperate with specialized agencies and affiliates of the provincial People’s Committee to oversee and assess activities of foreign-invested enterprises and foreign-funded projects in local areas.

4. Investment registries shall oversee and assess foreign-invested enterprises and foreign-funded projects intra vires according to the laws on investment.

5. Foreign investors and foreign-invested enterprises shall oversee and assess projects on their own according to Article 70, point a clause 1, clause 2 Article 74 and clause 2 Article 96 of Decree No. 29/2021/ND-CP .

Chapter II

SUPERVISION OF FOREIGN INVESTMENTS

Section 1. MONITORING OF FOREIGN INVESTMENTS

Article 5. Matters to be monitored and methods of monitoring

1. Investment registries shall monitor the matters specified in clause 1 Article 71 of Decree No. 29/2021/ND-CP .

2. Investment authorities shall monitor the matters specified in clause 1 Article 72 of Decree No. 29/2021/ND-CP .

3. Methods of monitoring

a) Regular supervision;

b) Specialized supervision;

Article 6. Regular monitoring

1. Regulatory agencies, investment registries shall designate affiliated agencies and individuals to oversee and keep track of foreign-invested enterprises and projects within their assigned scope (hereinafter referred to as supervisors).

2. Supervisors collect documents and information and also cooperate with relevant agencies to review and reveal matters related to the projects. Foreign-invested enterprises, foreign-funded project investors, if necessary, shall be requested to provide documents for supervision.

3. Supervisors shall, based on the request of regulatory agencies, investment registries, report to supervisory bodies in writing about the progress, activities and obstacles of foreign-invested enterprises, foreign investors and foreign-funded projects intra vires on biannual, annual or ad hoc basis. Violations in investment, when exposed, shall be reported promptly to supervisory bodies for decisions.

4. Supervisors expedite the implementation of reporting regulations.

5. Make and keep records of project management files.

Article 7. Specialized supervision

1. Supervisory bodies shall base on state management demands, data-acquiring operations, reports and relevant documents to establish a specific program or plan for supervising a foreign-invested enterprise or foreign-funded project intra vires. The foreign-invested enterprise or foreign-funded project shall be informed of the content and time of supervisory activities.

2. Supervisory bodies shall plan their specialized supervision of defined subjects, form supervisory teams, specify missions for each member of a team, and request the enterprise or project being supervised in writing for reports and documents thereof.

3. The supervisory team shall request foreign-invested enterprises to held meetings in which participants discuss the report, they present necessary matters to a supervisory team.

4. The supervisory team shall report to the supervisory body about the result of the former’s supervision of the enterprise or project. The content of the report shall conform to clause 1 Article 5 of this Circular.

5. The supervisory body shall review and evaluate the supervisory team’s report and have the foreign-invested enterprise or project supervised informed in writing of the findings regarding its strengths, weaknesses and errors (if any) and essential demands.

6. Supervisory bodies shall keep record of the supervisory team’s findings in project management files.

Section 2. INSPECTION OF FOREIGN INVESTMENTS

Article 8. Matters to be inspected from foreign-invested enterprises and foreign-funded projects

1. Progress of contribution to charter capital, progress of disbursal of the registered investment capital; contribution to legal capital (if regulated); total capital actualized out of the registered amount.

2. Progress of the project; implementation of the project's investment objectives; application of technologies regarding a project subject to appraisal of technology (technology to be applied compared to the technology appraised by the competent authority; installation of equipment and technological lines of the investment project); transfer of technology regarding to a project having technology transferring activities (subject matter, contents, method of technology transfer, results of technology transfer as agreed upon between the parties); investors’ fulfillment of commitments and requirements for investment activities, requirements for market access, incentives and supports upon the operation of the project.

3. Payment of financial duties to the government.

4. Implementation of legal regulations on labor, foreign exchange management, environment, land, construction, fire safety and other regulations of special laws.

5. Financial position of foreign-invested enterprises:

a) Value of assets contributed (e.g. land use right, machinery, equipment, intellectual property, and other assets as per the law);

b) Use of machinery and equipment that constituent fixed assets, materials and components imported for manufacturing which are exempt from import duty, according to the purpose of importation;

c) Inspection of the valuation of the enterprise and shares prior to listing in particular events of overvaluation of the value of the enterprise;

d) Transactions with the parent company abroad or associated enterprises;

dd) Settlement of accounts payable (e.g. bank loans, corporate bonds, and other loans);

e) Establishment and use of provisions, depreciation of fixed assets, recording of differences in currency exchange rates;

g) Distribution of profit(s) related to state-owned capital investment(s) in foreign-invested enterprises and foreign-funded projects;

h) Preservation of capital of state-funded enterprises and projects (i.e. investments to other enterprises and admission of partners investing into joint venture or associated business).

6. Other details of the implementation of investment projects, such as:

a) Abidance by regulations on supervision and assessment of investments and reporting regulations;

b) Compliance with remedial measures against the violations exposed.

7. For projects to which certificates of investment registration are issued, the content of inspections, apart from those defined in Sections 1 to 6 of this Article, shall include adherence to the decision on state approval of the investments, certificate of investment registration and certificate of business registration.

8. The content of an inspection may include all or parts of those defined in this Article according to the purpose and need of the inspection and to the nature and traits of the foreign-funded project.

Article 9. Matters to be inspected from the state management of foreign investments

1. Conformity of the project with relevant planning as per the planning law.

2. Authorities’ adherence to the laws on issuance, amendment, suspension, cessation of operation of projects, revocation of decision on approval for investment policies, certificate of investment registration of the investment registry as per the law.

3. Regulation of preferential treatments and supports for investment projects.

4. Supervision, assessment and support for investment upon issuance of decision on approval for investment policy, certificate of investment registration.

5. Summarization and reporting of the progress of investment projects as per regulations.

6. Ground clearance and compensation, land reclamation, land assignment.

7. The matters specified in clause 2 Article 71 of Decree No. 29/2021/ND-CP .

Article 10. Forms of inspection

1. Periodic inspection: Periodic inspections shall be carried out according to annual inspection plans approved by competent authorities that are stated in Article 4 of this Circular.

2. Ad hoc inspection: Ad hoc inspections shall occur on case basis according to management demands and actual circumstances or upon request with regard to difficulties that ensue during the implementation of investment activities or of legal regulations and policies on foreign investment or upon detection of signs of violations in investment committed by foreign-invested enterprises and foreign-funded projects.

3. Specialized inspection: Specialized inspections shall occur upon request by specialized management authorities in accordance with special law with the aim of evaluating the implementation of legal regulations in relation to the fields under their management.

Article 11. Methods of inspection

1. Competent authorities shall conduct inspections by the following methods according to actual conditions and contents:

a) Through the National system of investment information;

b) Through reporting;

c) Through inspection teams or delegations.

2. An inspection may occur via one or various methods above to attain the highest efficiency according to specific missions.

Article 12. Establishment, modification and notification of periodic inspection plans

1. Inspection plans shall be made separately or included in the agenda of competent authorities as per Article 4 of this Circular. Inspection bodies, when necessary, can present inspection plants to the head of the competent authority for any revisions.

The inspection plan for the following year shall be delivered to the summarizing body as defined in Section 3, Section 4 of this Article by the 30th of November of each year.

2. The form No. 1 issued together with this Circular shall be used to make inspection plans.

3. Ministry of Planning and Investment shall summarize annual plans for inspection by ministries and provincial People’s Committee of foreign-invested enterprises and foreign-funded projects nationwide. If inspection plans overlap, the Ministry of Planning and Investment shall notify bodies that have overlapping plans for revision.

4. Department of Planning and Investment shall summarize annual inspection plans of foreign-invested enterprises and foreign-funded projects in the related province or centrally-affiliated city. If inspection plans overlap, the Department of Planning and Investment shall notify bodies that have overlapping plans for revision.

5. Inspection plans shall be announced and published on the websites of the summarizing body and inspection body and on the national portal for foreign investments within 7 days from the date on which the inspection plan is approved by the competent authority.

Article 13. Inspection through the National system of investment information

1. Inspections through the national system of investment information shall occur on regular, periodic or ad hoc basis.

2. The inspection shall verify:

a) Details of the Decision on approval for investment policy, Certificate of investment registration;

b) Reporting by regulatory agencies;

c) Implementation of regulations on information update, reporting by the enterprise that carries out the investment project.

Article 14. Inspection through reporting

1. Inspections through reporting shall occur on periodic basis or upon request by individuals competent to or organizations designated to conduct inspections.

2. The content and delivery time of the report must conform to the request of the individual competent to or the organization or individual designated to conduct the inspection.

3. The body competent or designated to conduct the inspection shall consider report(s), process data, have data verified and make resultant report(s).

4. The organization inspected shall be given at least 20 working days to prepare its report from the date that it receives the request of the individual competent to or the body designated to conduct the inspection. In special events, the time for the organization inspected to prepare its report shall be at the discretion of the individual competent to conduct inspections.

Article 15. Establishment of inspection teams

1. Inspections that are carried out by inspection teams on regular basis or upon requests by bodies competent to conduct inspections. Competent authorities shall base on actual circumstances to cooperate with relevant bodies to carry out interdisciplinary or specialized inspections of investment activities. If a project undergoes 02 or more specialized inspections in a year, an interdisciplinary inspection team shall be formed.

2. Forming of inspection teams

a) The body designated shall draft primarily and present the Outline of inspection to the body competent to conduct the inspection, which shall then issue a decision to form the inspection team. Such decision must indicate the name of the subject inspected, personnel of the inspection team (i.e. leader, deputy leader, members), scope, form, content and time of the inspection, responsibilities of the inspection team, of the inspection body and relevant bodies.

b) The leader of the inspection team shall present the specific inspection plan to heads of competent authorities or of bodies mandated for approval. The plan shall include:

- Purpose(s) and demand(s) of the inspection;

- Content of the inspection;

- Time and location of the inspection;

- Personnel of the inspection team;

- Assignments for members of the inspection team;

- Agenda of the inspection team;

- Estimated expenses of the inspection team.

c) The body leading the inspection shall be responsible for notifying the subject inspected and any relevant organizations (if any) in writing of the inspection (i.e. time, location, content of the inspection; documents to be available for the inspection).

Bodies leading inspections can use the format of the report to be made for the inspection in Appendix 2 of this Circular.

The time of an inspection is left to the discretion of the leader of the inspection team; however, an inspection shall occur at least 05 work days after the organization inspected is notified in writing of the inspection or at least 07 work days after the decision to form the inspection team is issued in writing. The duration for the inspected entity to prepare relevant documents is at least 20 days from the date on which a request for preparation of documents is received.

The inspection team shall be responsible for informing the organization inspected of the time and content of ad hoc inspections at least 01 work day prior to the date of inspection. The leader of an inspection team, when necessary, can set the time of an ad hoc inspection.

3. The duration of an inspection team’s operations shall be left to the discretion of the individual who issues the decision to form such team. However, the length of time of an inspection shall not exceed 20 work days upon its commencement. A complex inspection involving various bodies in (an) extensive area(s) may last longer; however, it shall be limited to at most 30 work days upon its commencement. The duration of an inspection against an enterprise or project shall not exceed 03 work days. The duration of a longer complex inspection shall not exceed 05 work days.

4. Realization of inspections

a) The leader of the inspection team shall be responsible for executing the specific inspection plan;

b) The inspection team shall be responsible for collecting, scrutinizing, analyzing and evaluating the information and documents related to the inspection. Such information and documents, if necessary, may be collated;

c) The team shall then verify the written record of inspection and make report(s). Such inspection record shall be completed upon the end of the duration of the inspection at the organization inspected. The record must bear the signatures of the leader of the inspection team or a team member mandated or designated (in case of an interdisciplinary inspection of various issues) and of the competent representative of the organization inspected in order to proceed to report and handle the result of the inspection;

d) Upon the end of the inspection at the premise inspected, the leader of the inspection team shall be responsible for informing the competent representative of the organization inspected in writing and handing over documents and equipment that it uses during the inspection.

Article 16. Expenditure

The expenditure for inspection activities of regulatory agencies shall be arranged and allocated from the annual state budget according to legal regulations of financial management and to Article 89 and Article 90 of the Government’s Decree No. 29/2021/ND-CP.

Article 17. Reporting of inspection results

1. In 20 work days upon the end of an inspection, the leader of the inspection team or the body leading the inspection shall be responsible for reporting the result of the inspection.

2. The draft of the inspection report must be sent to bodies participating in the inspection (in case of an interdisciplinary inspection) or to the members of the inspection team for opinions before being submitted to competent authorities. Bodies or members inquired must respond in writing in 05 work days upon the receipt of the draft report. A body or member that does not respond to the body leading the inspection in such period of time shall be deemed to consent to the draft report.

3. The content of the report shall indicate:

a) Grounds of the inspection;

b) Form of the inspection;

c) Time and location of the inspection;

d) Participants in the inspection;

dd) Name of the inspected organization;

e) Content of the inspection;

g) Strengths and shortcomings of the organization inspected; reasons of shortcomings;

h) Opinions of participating bodies or members of the inspection team;

i) Recommendations of the organization inspected;

k) Remedial conclusions intra vires or remedial recommendations to competent authorities for the shortcomings. The report shall specify accepted opinions from participating bodies, members of the inspection or the organization inspected. Moreover, the report must indicate grounds that lead to the acceptance of such opinions. The report also states recommendations on handling shortcomings;

l) Other matters (if any).

4. The official inspection report shall be submitted to the authority competent to issue the inspection decision for further actions and to the Ministry of Planning and Investment for summarization.

5. Pursuant to the traits and events of the inspection, the report of inspection result and inspection completion shall be made within 10 days after receiving the report of the inspection team. The inspection report shall be published in one or some of these methods:

a) In a meeting with: The individual making the inspection decision, the inspection team, the subject inspected and related entities;

b) Through mass media;

c) On the website of the regulatory agency;

d) On the bulletin board of the subject inspected;

dd) Upon request by related bodies and organizations.

Article 18. Rights, duties and responsibilities of bodies and organizations involved

1. Rights, duties and responsibilities of inspection bodies

a) Notify the organization inspected of the time and content of the inspection, send the inspection report to the organization inspected, report to competent authorities about the result of the inspection and remedial recommendations;

b) Request competent specialized state management bodies in local areas to cooperate and support the inspection;

c) Cope with or seek competent authorities’ timely treatments against entities that do not adhere to or misinterpret the laws, policies and legal regulations on investment;

d) Rectify or seek competent authorities’ rectifying inappropriate policies and legal regulations;

dd) Commend or seek competent authorities’ commending bodies and organizations conforming to the laws, policies and legal regulations on investment.

2. Rights, duties and responsibilities of organizations inspected

a) Cooperate and support inspection bodies during the inspection, assign competent and relevant personnel to work with the inspection team;

b) Provide information and make report(s) strictly according to inspection bodies’ requests;

c) Make reports, provide authentic information and documents and assume liabilities to the law for the content of such reports, information and documents;

d) Adhere to decisions by inspection bodies;

dd) Have the right to lodge petitions and interpret conclusions of inspection bodies and competent individuals;

e) Be held responsible for failing or misinterpreting the laws, policies and legal regulations on investment.

Article 19. Processing of inspection findings

1. Competent entities, when receiving an inspection report, shall be responsible for processing the findings of such inspection. Such entities shall request competent authorities to handle issues ultra vires.

2. Findings of an inspection shall be processed in at most 15 work days upon the receipt of the inspection report.

3. Entities that defer or obstruct the authorities' verifying and processing of inspection findings shall be held liable to the law.

4. The processing of inspection findings must conform to the laws.

Chapter III

ASSESSMENT OF FOREIGN INVESTMENTS

Article 20. Content of finalization assessment

1. Contribution to the charter capital of the foreign-invested enterprise, to the legal capital (for conditional business lines) and to the investment capital of the project; mobilization and use of finances as per the laws; payments during the implementation of the project.

2. Progress of the project in comparison with that defined in the decision on approval for the investment policy or the certificate of investment registration.

3. Land use and labor use of the project; abidance by legal regulations on environmental protection.

4. Payment of financial duties to the government.

5. Evaluation of the realization of objectives, resources mobilized, work progress and benefits of the project.

6. Recommendations.

Article 21. Content of impact assessment

1. Evaluation of the realization of investment objectives and scope (i.e. conformity to the plan, the decision on approval for the investment policy or the certificate of investment registration, relevant legal regulations).

2. Evaluation of the rate of completion (according to the content and progress registered or defined in the decision on approval for the investment policy or certificate of investment registration).

3. Evaluation of the efficiency of the investment (i.e. the use of labor and lands; fulfillment of financial duties to the state budget; rate of investment; transfer of technologies and experience, business and management skills.

4. Evaluation of the level of production technologies, transfer of technologies and experience, management and business skills.

5. Evaluation of the activities of reporting to state management agencies as per regulations.

6. Recommendations.

Article 22. Content of ad hoc assessment

1. Pertinence of the result of the project to the objectives of the investment.

2. Rate of completion of workloads in comparison with those defined in the written preliminary state approval of the investment or certificate of investment registration.

3. Determination of any unexpected occurrences and reasons thereof.

4. Effects of unexpected occurrences on the implementation of the project and the achievability of the project’s objectives.

5. Recommendations.

Chapter IV

IMPLEMENTATION

Article 23. Implementation provision

1. This Circular comes into force as of April 1, 2022.

2. This Circular supersedes Circular No. 09/2016/TT-BKHDT dated June 30, 2016 of the Minister of Planning and Investment on guidelines for monitoring, inspection and assessment of foreign investments in Vietnam.

Article 24. Implementation

1. Ministries, agencies, provincial People’s Committees and investment registration agencies shall supervise, inspect and assess foreign investment activities under their management as per this Circular.

2. Ministry of Planning and Investment shall cooperate with ministries, agencies, provincial People’s Committees and investment registration agencies to provide guidelines for the implementation of this Circular.

3. During their implementation of regulations, entities shall refer difficulties to the Ministry of Planning and Investment for timely review and rectification./.