Foreign-invested companies and foreign-invested projects operating in Vietnam must comply with regulations on investment activities in Vietnam. A few details to be noted are as follows:
The following entities are covered by Circular 02/2022/TT-BKHDT, which directs the monitoring and assessment of foreign investment activities in Vietnam:
“b) Foreign-invested economic organizations and foreign-invested projects operating in the Vietnamese territory.”
According to the Investment Law 2020 (effective from January 1, 2021): “Foreign-invested economic organizations are economic organizations with foreign investors as members or shareholders.”
According to Article 2, Circular 02/2022/TT-BKHDT guiding the supervision and assessment of investment for foreign investment activities in Vietnam:
“Foreign-invested project is a project in one of the following cases:
a) The project is implemented by a foreign-invested economic organization or an economic organization defined in Clause 1, Article 23 of the Investment Law and is granted an investment registration certificate (IRC) in accordance with law;
b) The project is invested in the form of a business cooperation contract with the participation of a foreign investor or an economic organization specified in Clause 1, Article 23 of the Investment Law.”
Thus: All foreign-invested companies with any capital contribution ratio and foreign-invested projects with a foreign-invested ratio of more than 50% must comply with the provisions of Circular 02/2022/TT-BKHĐT.
There are now 3 different ways that foreign investment activities are inspected in Vietnam:
– Periodic inspection: based on the management authority’s yearly inspection plan.
– Unscheduled inspection: based on management needs, the actual situation, or requests and complaints of agencies, organizations, and people regarding issues with the execution of investment activities, the planning of the implementation of laws and policies on foreign investment, or indications of violations in investment activities.
– Specialized inspection: performed in line with specific laws and at the request of particular management authorities to determine if the law’s provisions are being followed.
Foreign-invested companies and projects may be inspected for the following contents:
1. The schedule of charter capital contribution and disbursement of registered investment capital; the situation of legal capital contribution (for business lines where legal capital is regulated); total executed investment capital and the ratio to the total registered investment capital.
2. The progress of the project’s implementation, the achievement of its investment goals, the application of technology to projects that are the subject of technology evaluation and opinions, the transfer of technology for projects involving technology, the fulfillment of commitments, and the satisfaction of investment conditions, market access conditions, investment incentive conditions, and investor support conditions when the project is put into operation.
3. Fulfilling financial responsibilities to the government.
4. The application of specialized laws pertaining to the administration of foreign exchange, the environment, land use, construction, fire prevention, and other areas of law.
5. Financial situation of foreign-invested economic organizations
a) Value of assets contributed as capital by the parties (value of land use rights; value of machinery and equipment assets; intellectual property rights and other assets as prescribed by law);
b) The correct use of imported machinery and equipment to create fixed assets, raw materials, supplies and components imported for production are exempt from import tax;
c) Check the results of determining the enterprise value, the value of shares at the time before listing on the stock exchange in some special cases showing signs of over-increasing the enterprise value;
d) Transactions with parent companies in foreign countries or related companies;
đ) Performance of debts (bank loans, corporate bond issuance and other loans);
e) Setting up and using reserve funds, depreciating fixed assets, accounting for exchange rate differences;
g) The distribution of profits for the state’s capital contribution in foreign-invested economic organizations and projects;
h) Preservation of capital contribution of economic organizations and projects with state capital (including investment outside enterprises and accepting partners to contribute capital to joint ventures and associations in economic organizations).
6. Other contents related to the implementation of investment projects
a) Compliance with regulations on investment supervision and assessment conditions and reporting and statistical regimes as prescribed;
b) The observance of measures to handle detected violations.
7. The inspection contents for Companies subject to the issuing of an Investment Registration Certificate (IRC) also include the application of the contents mentioned in the Decision on Approval of Investment Policy (if Any), IRC, and Enterprise Registration Certificate (ERC).
8. The inspection contents may comprise all or some of the aforementioned points, depending on the goals and needs of the inspection as well as the nature and characteristics of the foreign-invested project.