Granting investment policy decisions in Vietnam

Investment policy approval is the competent state agency’s approval of the project’s objectives, location, scale, progress, and duration; investor or form of investor selection and special mechanisms and policies (if any) to implement investment projects. This is an important procedure for large-scale investment projects in key areas planned by the state. In the article below, Viet An Law will guide you through current regulations on documents and procedures for granting investment policy decisions in Vietnam.

Legal basis

• Law on Investment 2020;
• Decree 31/2021/ND-CP guiding the Investment Law;

Cases requiring investment policy approval

The Investment Law 2020 has regulations on some special cases where it is not necessary to apply for an Investment Registration Certificate like most investment projects implemented in Vietnam but need to apply for a decision (document) approving the policy. Investment according to jurisdictional regulations is presented below.

After the project is approved for investment policy, it is necessary to continue to carry out procedures to select investors through 1 of 3 forms:

• Bidding for investor selection;
• Auction of land use rights;
• Approval of investors in case the auction of land use rights is unsuccessful, or there is only one investor who meets the conditions for inviting interest in cases where the law governing the industry or field stipulates the determination of the number of investors. interested investors when carrying out investor selection procedures, or concurrent approval as prescribed in Article 29.4 of the Investment Law 2020.

Authority to approve investment policies

According to Article 30. 31 of the Investment Law 2020, the decision to approve the investment policy is issued under the authority of the National Assembly, the Prime Minister, or the Provincial People’s Committee according to the following regulations:

Authority to approve investment policies of the National Assembly

• Investment projects that greatly affect the environment or have the potential to seriously affect the environment, including: Nuclear power plants; and investment projects requiring conversion of forest land use purposes according to regulations;
• Investment projects requiring a change of land use purpose for wet rice cultivation of 02 or more crops with a scale of 500 hectares or more;
• Investment projects requiring resettlement of 20,000 people or more in mountainous areas, or 50,000 people or more in other regions;
• Investment projects requiring the application of special mechanisms and policies need to be decided by the National Assembly.

Authority to approve investment policies of the Prime Minister

For projects not under the authority of the National Assembly, the Prime Minister will approve the following projects:

• Projects involving immigrants, airport construction, air transportation business, seaports, oil and gas processing, betting business on electronic games with prizes for foreigners, housing/urban area construction with Land use scale of 300 hectares or more or population size of 50,000 people or more; construction of industrial parks/export processing zones;
• Investment projects of foreign investors in the field of telecommunications services with network infrastructure, afforestation, publishing, and journalism;
• Investment projects are simultaneously under the investment policy approval authority of 02 or more Provincial People’s Committees;
• Other investment projects fall under the authority of the Prime Minister’s investment policy approval or investment decision according to the provisions of law.

Authority to approve investment policies of the Provincial People’s Committee

For projects not under the authority of the National Assembly and the Prime Minister, the Provincial People’s Committee approves investment policies for the following investment projects:

• Investment projects that require the State to allocate or lease land not through auction of land use rights, bidding to select investors or according to the provisions of land law;
• Investment projects requiring the State to allocate or lease land are not subject to transfer of land use rights and assets attached to land;
• Housing construction investment projects (for sale, lease, lease purchase), small-scale urban areas;
• Golf course construction and business investment projects;
• The project is implemented in areas that affect national defense and security.

Dossier for issuance of decision on investment policy for investment project

According to the provisions of Article 33 of the Investment Law 2020 and documents guiding its implementation, the application for a decision on investment policy for an investment project proposed by the investor is regulated to include the following types of documents:

• Written request to implement the investment project, including a commitment to bear all costs and risks if the project is not approved;
• Documents on the investor’s legal status;
• Documents proving the investor’s financial capacity include at least one of the following documents: the investor’s most recent 2-year financial statements; commitment to financial support from the parent company; commitment to financial support from financial institutions; guarantee of the investor’s financial capacity;
• Propose investment projects according to regulations guided in Article 31 of Decree 31/2020/ND-CP.
• In cases where the law on construction stipulates the preparation of a pre-feasibility study report, the investor may submit a pre-feasibility study report instead of the investment project proposal;
• In case the investment project does not request the State to allocate land, lease land, or allow a change of land use purpose, submit a copy of land use rights documents or other documents determining the right to use the location for implementation investment project;
• Content explaining the technology used in investment projects for projects subject to appraisal and consultation on technology according to the provisions of the law on technology transfer;
• BCC contract for investment projects in the form of a BCC contract;
• Other documents related to the investment project, conditions, and capacity requirements of the investor according to the provisions of law (if any).
• Power of Attorney for Viet An Law to carry out the procedure.

Agency receiving documents

Although there are many different levels of authority, the focal points for receiving applications for investment policy approval are the same as the procedures for applying for an Investment Registration Certificate, including:

• Ministry of Planning and Investment: cases under the approval authority of the National Assembly or the Prime Minister;
• Department of Planning and Investment: cases under the approval authority of the Provincial People’s Committee;
• Management Board of industrial parks, export processing zones, high-tech parks, and economic zones (hereinafter referred to as “Management Board“): cases under the approval authority of the Provincial People’s Committee for projects implemented in industrial parks industrial zones, export processing zones, high-tech zones, economic zones.

Procedures for granting decisions on investment policies for investment projects

Step 1: Submit the registration application

The investor submits an application for investment policy decision at the application receiving agency mentioned above.

Quantity:

• 20 sets of documents for cases falling under the jurisdiction of the National Assembly;
• 08 sets of documents for cases falling under the Prime Minister’s authority;
• 04 sets of documents for cases falling under the jurisdiction of the Provincial People’s Committee.

Step 2: Processing documents

Cases falling under the jurisdiction of the National Assembly

• The Ministry of Planning and Investment reports to the Prime Minister to establish a State Appraisal Council in cases under the approval authority of the National Assembly within 15 days from the date of receipt of complete documents.
• The appraisal council prepares a report within 90 days from the date of establishment.
• The Government prepares and sends a dossier requesting approval of the investment policy to the inspection agency of the National Assembly no later than 60 days before the opening date of the National Assembly session.

Cases under the authority of the Prime Minister

• Within 03 working days from the date of receiving the complete dossier, the Ministry of Planning and Investment sends the dossier to get appraisal opinions from state agencies related to the appraisal content and sends back opinions within 15 days.
• Within 40 days from the date of receiving the dossier, the Ministry of Planning and Investment organizes the appraisal of the dossier and prepares an appraisal report to send to the Prime Minister.
• The Prime Minister reviews and approves the investment policy or appoints the Department of Planning and Investment to issue an Investment Registration Certificate for the entire project.

Cases under the jurisdiction of the Provincial People’s Committee

• Within 03 working days from the date of receiving the valid dossier, the Department of Planning and Investment or the Management Board sends the dossier to get appraisal opinions from the departments, district People’s Committees where the project is expected to be implemented, and other competent agencies concerned and request a written response within 15 days.
• Within 25 days from the date of receiving feedback, the Department of Planning and Investment or the Management Board prepares an appraisal report to submit to the Provincial People’s Committee.
• Within 07 working days from receiving the dossier and appraisal report, the Provincial People’s Committee shall consider and approve the investment policy. In case of refusal, it must be notified in writing and clearly state the reason.

Note the appraisal content related to land lease projects

Pursuant to Article 33 of the Investment Law and instructions in Article 31 of Decree 31/2021/ND-CP, documents related to land use rights that investors need to provide in the appraisal request dossier related to Land lease projects include:

• Proposal for investment projects requesting the State to lease land showing information about the current land use status at the project location and proposed land use needs (if any);
• Documents proving that the project is not on the List of land recovery projects approved by the Provincial People’s Council;
• Valid copy of Land Lease Decision, Land Use Rights Lease Contract, Certificate of House Ownership and Residential Land Use Rights, Certificate of Land Use Rights, House Ownership, and Other Assets attached to land in case of proposal for investment policy approval at the same time as investor approval for investors with land use rights

According to the received documents, the appraisal by the competent authority approving the investment policy is implemented with the following contents:

• Evaluate the compatibility of the investment project with national planning, regional planning, provincial planning, urban planning, and special administrative-economic unit planning (if any);
• Assess land use needs;
• Evaluation of the investment project’s suitability with urban development goals and orientations, housing development programs and plans; Preliminary investment phasing plan to ensure synchronization requirements; preliminary housing product structure and land fund reservation for social housing development; Preliminary plan for construction investment and urban infrastructure management inside and outside the project scope for housing and urban area construction investment projects.
• In case the approval is concurrent with the investor’s approval, it is also necessary to consider the ability to meet the conditions for land allocation or land lease when not done through the auction of land use rights or bidding for investor selection; Ability to meet conditions for changing land use purposes for projects that require changing land use purposes.

Investment policy application service of Viet An Law

• Consulting on documents and procedures for applying for a decision approving investment policies according to current legal regulations;
• Drafting dossiers applying for investment policy approval decisions and investment registration licenses;
• Authorized representative of the customer submits and works with state agencies related to procedures for applying for a decision approving investment policies;
• Tax accounting services for businesses implementing projects in Vietnam;
• Intellectual property representation services for registering protection of trademarks, copyrights, patents, industrial designs,…
• Provide regular legal advice to investors when implementing projects in Vietnam.

Clients with needs related to documents and procedures for granting investment policy decisions in Vietnam, please contact Viet An Law for the most effective consulting support.

This article was updated until April 2024. If any legal changes have not been updated, please contact Viet An Law for support.