Issue 020524 – Procedures for adjusting the Outward Investment Registration Certificate of projects not subject to approval for their outward investment guidelines

Dear Valued Clients,

In recent years, investors transferring investment capital from Vietnam to foreign countries, using profits earned from this investment capital to carry out business investment activities abroad is becoming more and more popular. In order to implement outward investment activity, first of all, investors need to apply for an Outward Investment Registration Certificate (“OIRC”) at a competent state agency. This is one of the important legal documents demonstrating the investor’s right to implement the outward investment project. Accordingly, investors are responsible for fully complying with all contents recorded in the OIRC such as investment objectives and location, investment form, investment capital and sources of such capital, investment capital form, outward investment schedule…. During project implementation, due to changes in activity content, the investor must make adjustments to the OIRC.

In order to better understand the process and procedures for adjusting the Outward Investment Registration Certificate of projects not subject to approval for their outward investment guidelines according to the provisions of law, Valued Clients can refer to our article.

1. Cases where foreign investors make adjustments to OIRC

According to the provisions of Article 63.1 of Law on Investment No. 61/2020/QH14 dated June 17, 2020 (“Law on Investment 2020”), the investor shall follow procedures for adjusting the OIRC in the following cases:

1. Change of the Vietnamese investor.
2. Change of the investment form.
3. Change of outward investment capital, sources of investment capital and form of such capital.
4. Change of investment location with respect to the investment project requiring an investment location.
5. Change of main objective of the outward investment activity.
6. Use investment profits abroad to reinvest in the following cases: (i) Continue to contribute investment capital abroad in case the registered capital has not been fully contributed; and (ii) Increase investment capital abroad.

For contents that do not fall into one of the above cases, the Investor must update the National Investment Information System upon change.

2. Procedures for adjusting OIRC of projects not subject to approval for their outward investment guidelines

1. Investors are not required to apply for approval of investment policies abroad except in the following cases:
2. Investment projects with outward investment capital of VND 20,000 billion or more.
3. Investment projects that require application of a special mechanism or policy that needs to be decided by the National Assembly.
4. Investment projects in the banking, insurance, securities, press, radio, television and telecommunications fields with outward investment capital of VND 400 billion or more.
5. Investment projects other than those mentioned in section (iii) with outward investment capital of VND 800 billion or more.

Form of submission of application

According to the provisions of Article 80.1 of Decree No. 31/2021/ND-CP dated March 26, 2021 (“Decree 31”), For an application for issuance or adjustment of the outward investment registration certificate that has an outward investment capital of less than VND 20 billion and does not involve any conditional business line, the investors can choose one of two application submission methods as follows:

1. Submitting a physical application according to the corresponding procedures specified in section 2.3 below and/or.
2. Submitting an online application on the National Investment Information System with or without a digital signature.

Profile components

 Procedure of execution

Stage 1: The investor shall declare information on the application for issuance of the OIRC on the National Investment Information System and submit 03 sets of application (including 01 original dossier) to the Ministry of Planning and Investment (“MPI”) within the next 15 days.

The application will be accepted by the MPI if there are sufficient types and quantities of documents.

Stage 2: The MPI shall inspect the validity of the application. If the application is invalid or has to be clarified, the MPI shall notify the investor within 05 working days from the receipt of the application.

Note:

• If the amount of foreign currency capital transferred overseas is VND 20 billion or more, the MPI shall request the State Bank of Vietnam to in writing to provide opinions as prescribed in Article 61.3 of the Law on Investment 2020. Within 07 working days from the receipt of the written request for opinions, the State Bank of Vietnam shall give the MPI a written response to the conditions of the capital transferred overseas before being issued with the OIRC; to the fulfillment of money transfer conditions by the investor; to the borrowing, grant of loans to the foreign business organization, guarantee offered to the foreign business organization and other concerned issues;
• If the outward investment specifies that the investor grants a loan to the foreign business organization or gives a guarantee to grant a loan to the foreign business execution, the investor shall follow procedures for approval for overseas lending or fulfill the guarantee obligation that arises in accordance with regulations of law on foreign exchange;
• If the outward investment project involves press, radio or television, the MPI shall send a written request for opinions to the Ministry of Information and Communications as prescribed in Article 72.2 of 31 Decree. Within 07 working days from the receipt of the written request, the Ministry of Information and Communications shall give a written response to the Ministry of Planning and Investment;

Within 15 days from date of receiving the valid application, the MPI shall adjust the OIRC and send a copy of the adjusted OIRC to the State Bank of Vietnam, Ministry of Finance, Ministry of Foreign Affairs, Ministry of Labor, War Invalids and Social Affairs, relevant ministry, People’s Committee of the province or central-affiliated city where investor’s headquarters is located or investor’s permanent residence is registered, tax authority certifying the investor’s fulfillment of tax payment obligation and investor’s state ownership representative agency (if any);

If the application is invalid or fails to satisfy the conditions, the MPI shall send the investor a written notification of its refusal to adjust the OIRC and reasons therefor.

Stage 3: Receive the results of the original OIRC.

3. Procedures for updating information on an outward investment project on the National Investment Information System: 

Within 01 month from the date on which a content of the outward investment project is changed without resulting in the project being subject to the adjustment of the OIRC according to section 1 above, the investor shall access the account issued to the outward investment project on the National Investment Information System and update the change.

As usual, we hope you find this Legal Update helpful and look forward to working with you in the upcoming time.

Kind regards,

ENT Law LLC

The full version of this Legal Update can be found here.

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For the content updated by the investor on the National Investment Information System, the MPI shall record such content in the adjusted OIRC when the investor adjusts the OIRC.

[1] Such certification must be issued by the tax authority within the last 03 months.

[2] With regard to an outward investment project in the business lines specified in Article 54.1 of Law on Investment 2020.

[3] Article 73 of Decree 31.

[4] Article 74 of Decree 31.