Investment is one of the indispensable business activities in the context of globalization. In recent years, attracting foreign direct investment (FDI) has increased sharply, leading to the need to apply for foreign investment licenses in Vietnam. Although there are many guiding documents, preparing documents for investment license application procedures still faces many difficulties and obstacles in practice.
1. Documents that need to be prepared before investing in the form of investment to establish an economic organization
1.1. For domestic investors
Domestic investors include (i) individuals of Vietnamese nationality and (ii) economic organizations established and operating under Vietnamese law without foreign investors as members. or shareholders, the establishment of economic organizations will have to comply with the provisions of enterprise law. Document components for investing in establishing an economic organization will have differences based on the type of enterprise established. Records and documents that need to be prepared before investing are specified in Decree 01/2021/ND-CP on business registration as follows:
- Application for business registration;
- Company rules;
- List of members (limited liability company with two or more members/partnership) or list of founding shareholders and list of shareholders who are foreign investors (joint stock companies);
- Copies of documents:
- Legal documents of the legal representative of the enterprise;
- Legal documents of company members, founding shareholders, shareholders who are foreign investors; Legal papers of the authorized representative of members, founding shareholders, shareholders of foreign investment organizations and documents appointing an authorized representative to manage shares and capital contributions;
1.2. For foreign investors
Foreign investors are individuals with foreign nationality or organizations established under foreign laws conducting business investment activities in Vietnam. According to the provisions of Article 22 of the Investment Law 2020, foreign investors must have an investment project and must carry out procedures to apply for an Investment Registration Certificate before establishing an economic organization in Vietnam.
Note that according to the provisions of Article 23.1 of the Investment Law 2020, economic organizations with foreign investment capital in the following cases must carry out procedures to apply for an Investment Registration Certificate when establishing a business organization. Other international:
- There are foreign investors holding more than 50% of the charter capital or the majority of partners are foreign individuals for economic organizations that are partnerships;
- There is an economic organization specified in Point a of this Clause that holds more than 50% of the charter capital;
- There are foreign investors and economic organizations specified in point a of this clause holding more than 50% of the charter capital.
Documents that need to be prepared to carry out procedures for applying for an Investment Registration Certificate according to the provisions of Article 33 of the Investment Law 2020 and Article 36 of Decree 31/2021/ND-CP guiding the Investment Law are as follows:
- 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; Other documents proving the investor’s financial capacity;
- Proposing investment projects;
- In case the investment project does not request the State to allocate land, lease land, or allow 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. current investment project;
- Explanation content about technology used in investment projects for projects subject to appraisal and consultation on technology according to the provisions of law on technology transfer.
- Other documents related to the investment project, conditions and capacity requirements of the investor according to the provisions of law (if any).
After being granted the Investment Registration Certificate, the foreign investor will proceed with business establishment procedures in accordance with enterprise law. The documents that need to be prepared are similar to those for domestic investors mentioned in Section 1.1 and require an Investment Registration Certificate.
2. Documents that need to be prepared before investing in the form of capital contribution, share purchase, or capital contribution
Domestic investors who contribute capital, buy shares, or purchase capital contributions of economic organizations must meet the conditions and carry out procedures for changing members and shareholders according to the provisions of law corresponding to each type. form of economic organization.
For foreign investors, foreign investors will have to carry out procedures for registering capital contribution, purchasing shares, or capital contributions before changing members or shareholders if they fall into one of the cases falling under the regulations. in Article 26.2 of the Investment Law 2020. In case this procedure must be carried out, the foreign investor’s documents must be prepared as follows:
- Document to register capital contribution, share purchase, purchase of capital contribution;
- Copies of legal documents of individuals, organizations contributing capital, purchasing shares, purchasing capital contributions and economic organizations with foreign investors contributing capital, purchasing shares, purchasing capital contributions;
- Document of principle agreement on capital contribution, share purchase, capital contribution purchase between foreign investors and economic organizations to which foreign investors contribute capital, share purchases, capital contributions or between investors. foreign investment with shareholders or members of that economic organization;
- Copy of the Certificate of Land Use Rights of the economic organization with foreign investors contributing capital, purchasing shares, purchasing capital contributions (in case that economic organization has a Certificate of Land Use Rights in Vietnam). islands, communes, wards, border towns and coastal communes, wards and towns; other areas affecting national defense and security).
3. Documents that need to be prepared before investing in the form of a business cooperation contract (BCC)
A business cooperation contract (also known as a BCC contract) is a contract signed between investors to cooperate in business, divide profits, and divide products according to the provisions of law without establishing a business cooperation contract. economic organizations. Accordingly, investors need to prepare and sign a BCC contract. The content of the BCC Contract must be guaranteed to have all the contents as prescribed in Article 28 of the Investment Law 2020.
In case the parties in the BCC contract are domestic investors, the parties prepare, sign the contract and implement the investment project according to the provisions of civil law.
In the case of a BCC contract signed between a domestic investor and a foreign investor or between foreign investors, after signing the BCC contract, the investors must carry out the procedures for granting a License. investment registration certificate. Regarding the documents that need to be prepared to carry out the procedures for applying for an Investment Registration Certificate, in addition to the documents mentioned in section 1.2 above, investors need to prepare a BCC Contract signed between the parties. to submit to competent state agencies.
In case a foreign investor in a BCC contract needs to establish an executive office to implement the contract, the investor needs to prepare documents to establish an executive office, including:
- Document to register the establishment of an executive office;
- Decision of the foreign investor in the BCC contract on the establishment of an executive office;
- Copy of the decision to appoint the head of the executive office;
- Copy of BCC contract.
4. Factors that help documents need to be prepared before investing accurately and effectively during the process of implementing investment procedures
Preparing the necessary documents before applying for an investment registration certificate is a complex process and requires careful, thoughtful, and meticulous preparation. Below are some methods that businesses can apply to prepare these documents effectively:
4.1. Identify and Plan strategic investments
– Determine requirements: First, based on your investment needs, businesses need to clearly understand the provisions of law and specific requirements of licensing agencies or local legal regulations on type of documents to be prepared.
– Detailed planning: Create a specific schedule for collecting, processing and preparing each document. Divide tasks into small phases and identify who is responsible for each part.
4.2. Collect information about investment projects
– Contact departments within the business to assign information collection tasks to relevant departments such as accounting, legal, human resources and management to ensure that all information necessary for registration is available. and project implementation is complete.
– Check information: compare information, requests, and proposals of internal departments to ensure that all information collected is accurate and thoroughly checked to avoid errors. This process should be consulted with local lawyers to avoid errors in the actual project registration process.
– Check, evaluate and prepare complete documents
– Assess accuracy and validity: Ensure that each document is thoroughly checked for accuracy and validity by qualified personnel.
– Create complete dossiers: Ensure that all necessary documents have been fully prepared, arrange documents into complete dossiers with attached document lists to help competent State agencies search rights.
4.3. Ensure the format of the document
– Ensure the form of documents: Ensure that all documents are presented in the correct form as prescribed by law, originals must have full signatures and stamps, copies must be notarized. valid proof and authentication. Documents issued by foreign agencies must be consularly legalized before being submitted to the competent state agency.
– Safe storage: Store copies and original documents safely and easily accessible to be ready to supplement records when necessary.
4.4. Legal advice
Investors should seek advice from a lawyer or legal expert to ensure that all documents comply with regulations and legal standards, as well as receive support to carry out the necessary procedures. necessary in investing in Vietnam.
