Ref. No. /2016/TT-BKHĐT / SOCIALIST REPUBLIC OF VIETNAM
Independence-Freedom-Happiness
Hanoi, [date] ……., 2016
CIRCULAR
Guiding on the coordination scheme to handle procedures for
investment registrationand business registration byforeign investors
Pursuant to the Investment Law No. 67/2014/QH13, dated Nov. 26, 2014;
Pursuant to the Enterprise Law No. 68/2014/QH13, dated Nov. 26, 2014;
Pursuant to the Government’s Decree No. 78/2015/NĐ-CP, dated Sep. 14, 2015, on business registration;
Pursuant to Article 24.2, Government’s Decree No. 118/2015/NĐ-CP, dated Nov. 12, 2015, providing details and implementing guidance for specific provisions of the Investment Law;
Pursuant to the Government’s Decree No. 116/2008/NĐ-CP, dated Nov. 14, 2008, providing on the roles, mandates, powers and organizational structure of Ministry of Planning and Investment;
Based on the proposals of the heads of the Business Administration and Registration Administration and Foreign Investment Office;
The Minister of Planning and Investment hereunder enacts this Circular, guiding on the coordination scheme to handle investment registration and business registration procedures by foreign investors.
Article 1. Scope
This Circular provides guidance on the coordination scheme to handle investment registration and business registration procedures by foreign investors, in line with Article 25, Decree No. 118/2015/NĐ-CP.
Article 2. Applicability
This Circular applies to the following parties:
1. Foreign investors and foreign-invested economic actors as defined in the Investment Law, that undertake business registration and investment registration under Vietnamese law;
2. Business registration agencies;
3. Investment registration agencies;
4. Other organizations and individuals pertaining to company registration and investment registration business.
Article 3. Terms and definitions
In this Circular, the following terminologies shall be construed as designated below.
1. The coordination mechanism to handle investment registration and business registration procedures by foreign investors (hereinafter referred to as the conjoint mechanism) is a collaboration system between business registration agencies and investment registration bodies in handling investment registration and business registration procedures by foreign investors, in line with the provisions of Article 24, Decree No. 118/2015/NĐ-CP.
2. Business registration agencies are provincial level Business Registration Offices, as defined in Article 13.1.a, Decree No. 78/2015/NĐ-CP.
3. Investment registration agencies include Planning and Investment Departments, and Authorities of industrial parks, export processing zones, high tech parks and economic zones.
4. Coordinated information systems are specialized information systems used for company registration and investment registration purposes, developed and operated by the Ministry of Planning and Investment for receipt, transmission, storage, display or other data operations, to support coordinated efforts by business registration agencies and investment registration bodies in practicing the coordinated scheme.
5. Receivers of applications refer to investment registration agencies or the accepting and return functions as specified in the Prime Minister's Decision No. 09/2015/QĐ-TTg, dated Mar. 25, 2015.
Article 4. Parties or events to which the coordinated scheme applies
1. Foreign investors and foreign-invested economic actors engaging in investment registration and formation of economic actors practices as specified in Article 44, Decree No. 118/2015/NĐ-CP;
2.Foreign investors and foreign-invested economic actors engaging in equity financing and acquisition of shares or equity by foreign investors as specified in Article 46, Decree No. 118/2015/NĐ-CP;
3. Foreign investors and foreign-invested economic actors applying for concomitant alteration of the content of enterprise registration and investment projects, including:
a) Changes to registered lines of business simultaneously with changes to the purpose of investment projects;
b) Changes of the business’ headquarters address simultaneously with changes of the investment project implementation sites;
c) Changes of the business’ charter capital concurrently with changes of the paid-in capital of investment projects;
d) Changes of the business name concurrently with changes of the name of investment projects;
dd) Other changes to the content of company registration concurrently with changes of the content of investment projects.
Article 5. Applicable principles in the coordinated scheme
1. Investors may choose to register their investments and register their companies within the coordinated scheme as specified in this Circular, or follow individual procedures provided in the Investment Law, Enterprise Law and relevant implementing documents thereof.
2. Investors shall prepare application dossiers themselves and be accountable to the law for the legitimacy, authenticity and reliability of the information declared in their company registration and investment registration applications.
3. Where there is documentation overlap between company registration applications and investment registration applications, the business registration agencies and investment registration agencies involved shall work together and exchange information, and shall only require applicants to file one set of the application in line with prevailing rules.In this case, the investment registration agency shall maintain the original applications lodged by the applicant, and be responsible to forward a copy of the overlapped documents to the relevant business registration agency.The copies sent by the investment registration agency shall be deemed valid copies as referred to in Article 3.10, Decree No. 78/2015/NĐ-CP.
4. Business registration agencies and investment registration agencies are responsible for the integrity of applications and related documentation; process the applications for investment registration and business registration within their roles and mandates; and provide coordinated confirmation on the transmission and receipt of applications and related documents within the coordinated scheme.
5. Business registration agencies and investment registration agencies shall review the validity of lodged applications for investment registration and business registration within their designated roles and mandated; collaborate; share information and be responsible within their corresponding roles and mandates.
6. Retention of a business name to be created shall be constituted as of the point in time when the relevant business registration agency serves notice that the business registration application is deemed valid.
7.The turnaround time line for release of a Business registration certificate and Attestation for changes of business registration content as referred to in Article 28.1, Decree No. 78/2015/NĐ-CP shall start as soon as the business registration agency receives a valid copy of the Investment registration certificate and written acceptance of the relevant Planning and Investment Department for equity financing, and acquisition of shares or equity by foreign investors.
Article 6. Sequential steps in applying the coordinated scheme for foreign investors registering business establishment
Article 6a.Option 1 –Relay of paper-based applications
Step 1. Applicants to lodge applications at an application receiver
Applicants shall lodge one set of investment registration application and one set of business establishment registration application at a designated application receiver.
The application receiver shall review the qualification of the investment registration application in accordance with the requirements of the Investment Law and Decree No. 118/2015/NĐ-CP; and qualification of business establishment registration application in accordance with the requirements of Article 27.2, Decree No. 78/2015/NĐ-CP.At this point, the application for business establishment registration does not include a valid copy of the Investment registration certificate.
In case the application is deemed qualified, the application receiver shall release a receipt for the acceptance of the investment registration application and business registration application to the applicant.
Step 2. Application receiver to hand over the application to the relevant business registration agency or investment registration agency
In the same working day with the application acceptance, the application receiver shall hand over the business registration application to the relevant business registration agency, and investment registration application to the relevant investment registration agency in case the application receiver is also the receiver and return function as referred to in the Prime Minister’s Decision No. 09/2015/QĐ-TTg, Mar. 25, 2015.
Step 3. Business registration agency and investment registration agency to review the validity of the application
a) Business registration agency:
Within 02 working days since receipt of the business registration application handed over, the relevant business registration agency shall confirm acceptance; make full and accurate entry of the information contained in the application; verify the validity of the application; upload the documentary components of the business registration application after they are digitalized in the National information system for business registration; and feedback the application receiver on the validity of the application.
- In case the application is found to be invalid:
The business registration agency shall release a notice requesting amendments and updates of the application to the application receiver for the latter’s follow-up and guiding the applicant's corrections. Once the applicant has completed making amendments and updates to the business registration application, the application receiver shall recollect such application and send it to the relevant business registration agency for further processing of the business registration application.
- In case the application is deemed valid:
The business registration agency shall notify the application receiver that the lodged business registration application is valid, for the latter's follow-up and notifying the applicant.Transmission of information to the Tax registration information system to create a business registration number shall only be done once the business registration agency has received the Investment registration certificate.
b) Investment registration agency:
The investment registration agency shall process investment registration applications received in line with the protocol defined in the Investment Law and its implementing documents.
Step 4. Release of Investment registration certificates
In the same working day with the release of the Investment registration certificate, the application receiver shall send a valid copy of the Investment registration certificate to the relevant business registration agency.
Step 5. Release of Business registration certificates
In the same working day with the receipt of the valid copy of the Investment registration certificate, the relevant business registration agency shall make full and accurate entry of the information on the Investment registration certificate, download the Investment registration certificate once it has been digitalized in the National business registration information system, and forward the information to the General Department of Taxation’s Tax registration information system to create a business registration number.In the same working day with the release of the Business registration certificate, the business registration agency shall forward the Business registration certificate to the application receiver.
Step 6. Return of results to the applicant
In the same working day with the receipt of the Business registration certificate, the application receiver shall return the released Business registration certificate and Investment registration certificate to the applying investor.
Article 6b.Option 2 – Exchange of information via electronic networks
Step 1. Applicants to lodge applications at an application receiver
Applicants shall lodge one set of applications for investment registration and one set of business establishment registration at a designated application receiver.
The application receiver shall review the qualification of the investment registration application in accordance with the requirements of the Investment Law and Decree No. 118/2015/NĐ-CP; and qualification of business establishment registration application in accordance with the requirements of Article 27.2, Decree No. 78/2015/NĐ-CP.At this point, the application for business establishment registration does not include a valid copy of the Investment registration certificate.
In case the applications for investment registration and business establishment registration are deemed qualified, the application receiver shall confirm acceptance of the business registration application in the Coordinated processing information system, release a receipt for acceptance of the investment registration and business registration application to the applicant, and start digitalizing the applications in the system.
Step 2. Business registration agency and investment registration agency to review the validity of the application
a) Business registration agency:
The business registration agency shall process the business registration application in the National business registration information system.
Within 02 working days since receipt of the information on the business registration application, the relevant business registration agency shall initiate task assignment; make full and accurate entry of the information contained in the application; verify the validity of the application; and feedback the application receiver on the validity of the application via the Coordinated processing information system.
- In case the application is found to be invalid:
The business registration agency shall release a notice requesting amendments and updates of the application to the application receiver for the latter’s follow-up and guiding the applicant's corrections. Once the applicant has completed making amendments and updates to the business registration application, the application receiver shall recollect such application, digitalize and send it to the relevant business registration agency through the Coordinated processing information system for the latter’s further processing of the business registration application.
- In case the application is deemed valid:
The business registration agency shall notify the application receiver that the lodged business registration application is valid, for the latter's follow-up and notifying the applicant.Transmission of information to the Tax registration information system to create a business registration number shall only be done once the business registration agency has received the Investment registration certificate.
b) Investment registration agency
The investment registration agency shall process investment registration applications received in line with the protocol defined in the Investment Law and its implementing documents.
Step 3. Release of Investment registration certificates
In the same working day with the release of the Investment registration certificate, the application receiver shall download the Investment registration certificate once it has been digitalized in the National information system for foreign investment and sent it to the relevant business registration agency via the Coordinated processing information system.
On a weekly basis, the application receiver shall forward a valid copy of the Investment registration certificate, attached with the paper-based business registration application received to the relevant business registration agency.
Step 4. Release of Business registration certificates
In the same working day with the receipt of the information on the Investment registration certificate that has been loaded into the Coordinated processing information system, the relevant business registration agency shall start processing the information on the National business registration information system, and forward the information to the General Department of Taxation’s Tax registration information system to create a business registration number.In the same working day with the release of the Business registration certificate, the business registration agency shall forward the Business registration certificate to the application receiver.
Step 5. Return of results to the applicant
In the same working day with the receipt of the Business registrationcertificate, the application receiver shall return the released Business registration certificate and Investment registration certificate to the applying investor.
Article 7. Sequential steps in applying the coordinated scheme in case of foreign investors registering investments via equity financing and acquisition of shares or equity
Step 1. Applicants to lodge applications at an application receiver
Foreign investors and foreign-invested economic actors investing via equity financing and acquisition of shares or equity shall lodge 01 set of application for registration of equity financing and acquisition of shares or equity, and 01 set of application for changes of business registration content for the selling party in equity financing and acquisition of shares or equity to the application receiver.
The application receiver shall review the qualification of the application for equity financing and acquisition of shares or equity in accordance with the requirements of the Investment Law and its implementing documents; and qualification of the application for changes of business registration content in accordance with the requirements of Decree No. 78/2015/NĐ-CP.At this point, the application for changes of business registration content does not include the written acceptance of the relevant Planning and Investment Department for the subject equity financing and acquisition of shares or equity by foreign investors.
In case the application is deemed qualified, the application receiver shall release a receipt for the acceptance of the application to the applicant.
Step 2. Application receiver to hand over the business registration application to the relevant business registration agency
In the same working day with the application acceptance, the application receiver shall hand over the business registration application to the relevant business registration agency, and investment registration application to the relevant investment registration agency in case the application receiver is also the receiver and return function as referred to in the Prime Minister’s Decision No. 09/2015/QĐ-TTg, Mar. 25, 2015.
Step 3. Review of the application validity
a) Business registration agency:
Within 02 working days since receipt of the business registration application handed over, the relevant business registration agency shall confirm acceptance; make full and accurate entry of the information contained in the application; verify the validity of the application; upload the documentary components of the business registration application after they are digitalized to the National business registration information system; and feedback the application receiver on the validity of the application.
- In case the application is found to be invalid:
The business registration agency shall release a notice requesting amendments and updates of the application to the application receiver for the latter’s follow-up and guiding the applicant's corrections. Once the applicant has completed making amendments and updates to the business registration application, the application receiver shall recollect such application and send it to the relevant business registration agency for further processing of the business registration application.
- In case the application is deemed valid: