1. What is adjustment of investment certificate?

Pursuant to Clause 11 Article 3 of the Law on Investment 2020 stipulates the Investment Registration Certificate as follows:

“An investment registration certificate is a paper or electronic document recording the investor’s registration information about an investment project.”

Adjustment of the Investment Certificate is a procedure carried out at the investment registration agency to record the changes of the project or the change of investors in the Investment Registration Certificate. According to the provisions of the Investment Law 2020, when the project or investor changes, the company must carry out procedures for adjusting the Investment Certificate.   

2. Cases of adjustment of investment certificates

Cases in which the Investment Registration Certificate must be adjusted

• Change the name of the investment project.
• Change investor information, change investor.
• Change the location of the investment project, the area of land used.
• Change the objectives and scale of investment projects.
• Change of capital of investment projects (including capital contribution of investors, ie increase or decrease of charter capital and mobilized capital, ie increase or decrease investment capital).
• Change the operation term of an investment project.
• Change the implementation schedule of investment projects, including:
  • Progress of capital contribution and mobilization of capital sources;
  • The progress of the implementation of the main operational objectives of the investment project, in case the investment project is divided into phases, the implementation progress of each phase must be prescribed.
• Change the form of investment incentives and supports and grounds and conditions for application (if any).
• Change the conditions for investors implementing investment projects (if any).

When an enterprise carries out procedures for adjusting the Investment Certificate, it must also change the relevant contents in the Business Registration Certificate. For companies with Business Licenses, it is also necessary to carry out procedures for changing Business Licenses.

3. Dossier of adjustment of investment certificate

(Applicable in normal cases, i.e. for projects not subject to issuance of investment policy decisions;)

• A written request for adjustment of the Investment Certificate;
• Report on the implementation of investment projects up to the time of adjustment;
• The investor’s decision on adjustment of the investment project for institutional investors or equivalent documents for individual investors;
• Current investment registration certificate;
• The company’s financial statements are audited in the preceding year at the time of adjustment of the Investment Certificate;
• An investment project proposal includes the following principal contents: investor or investor selection form, investment objectives, investment scale, investment capital and capital mobilization plan, location, duration, implementation progress, information on the current status of land use at the project site and land use demand proposal (if any), demand for labor, proposal for investment incentives, impacts, socio-economic efficiency of the project, preliminary environmental impact assessment (if any) in accordance with the law on environmental protection. Where the law on construction provides for the preparation of a pre-feasibility study report, the investor may submit the 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, permit change of land use purpose, submit copies of land use right papers or other documents determining the right to use the location for the implementation of the investment project;
• Contents of explanation of technologies used in investment projects, for projects subject to appraisal and collection of opinions on technologies in accordance with the law on technology transfer;
• BCC contract for investment projects in the form of BCC contract;
• Other documents related to the investment project, requirements on conditions and capacity of the investor as prescribed by law (if any).
• Explain or provide documentation related to the adjustment of the following:

In case of changing investor information:

The company needs to provide documents on the legal status of investors related to the content of changes:

• Certificate of operation of the parent company, for institutional investors;
• Investor’s passport if the investor is an individual;

In case of change in charter capital and investment capital of the project

Documents proving the financial capacity of the investor include at least one of the following documents:

• Financial statements of the last 02 years of the investor;
• Commitment to financial support by the parent company or;
• Commitment to financial support by the financial institution or;
• Guarantee on the financial capacity of the investor or;
• Other documents proving the financial capacity of the investor;

In case of change of location of investment project, land area for use:

The company needs to provide the following additional documents:

• Land lease contract, lease of a registered office for the project execution site;
• Land use right certificate of the lessor or investor or other alternative legal documents;
• In case of leasing land or renting offices of other enterprises, it is necessary to provide an additional Business RegistrationCertificate of the lessor with the function of real estate business.

4. Procedures and order of adjustment of investment certificates

Continue to amend the Investment Registration Certificate without new members or capital contributing shareholders

The procedure for adjustment of the Investment Registration Certificate shall follow the following steps:

Step 1: Carry out procedures for adjustment and issuance of the Investment Registration Certificate (part of the old investment project) according to investment procedures;

Step 2: Change the relevant content on the Certificate of Business Registration.

Step 3: Modify or renew the business eligibility license such as: International travel business license/ License for food safety establishment eligibility/ License for operation of foreign language centers, study abroad/ Business license (Only applicable to enterprises adding industries exercising the right to retail distribution of goods, leasing goods, and trades as prescribed in Decree 09/2018/ND-CP)…

Procedures for adjustment of investment certificates when new foreign investors contribute capital, purchase shares or contributed capital to the company

Step 1: The investor submits an application at the investment registration office where the economic organization is headquartered to carry out procedures for registration of capital contribution, purchase of shares or capital contribution to the foreign-invested company;

Step 2: The investor submits the application at the business registration office to carry out procedures for recording investor information on the Certificate of Business Registration (In case the enterprise has not separated the Investment Certificate and the Business Registration Certificate, the separation procedures will be carried out at step 2 at the same time. The number of the Certificate of Business Registration is also the tax code of the enterprise that has been issued);

Step 3: In case of re-issuance of the legal entity seal of the enterprise according to the information of the Certificate of Business Registration (ie the tax code of the enterprise) in accordance with the current record of the domestic enterprise.

Step 4: Carry out procedures for adjusting the Investment Certificate to update the information of the new investor and the adjustment contents related to the investment project.

Step 5: In case the investor makes additional conditional business lines, the information on the Certificate of Business Registration continues to carry out procedures for changing the Certificate of Business Registration at the business registration agency;

Step 6: Apply for a business eligibility license for conditional business lines according to specialized laws.

Time limit for carrying out procedures for adjustment of investment certificates

Usually within 10 working days from the date of receipt of a valid application.

5. Competent agencies shall adjust investment certificates

Department of Planning and Investment of the province where the company is headquartered

• Investment projects outside industrial parks, export processing zones, hi-tech parks, economic zones;
• Investment projects on infrastructure development of industrial parks, export processing zones, hi-tech parks and investment projects in industrial parks, export processing zones and hi-tech parks in localities where management boards of industrial parks, export processing zones and hi-tech parks have not been established.
• Investment projects implemented in many provinces and centrally-run cities;
• Investment projects are implemented simultaneously inside and outside industrial parks, export processing zones, high-tech parks and economic zones.

Management boards of industrial parks, export processing zones, high-tech parks and provincial economic zones where the company is headquartered

• Investment projects on infrastructure development of industrial parks, export processing zones and hi-tech parks;
• Investment projects shall be implemented in industrial parks, export processing zones, hi-tech parks, economic zones.

6. Notes

Note when adjusting the Investment Registration Certificate

• For enterprises that have not yet carried out procedures for separating investment certificates into enterprise registration certificates, they must separate investment certificates.
• If the enterprise changes to have new capital contributors, it should be noted that the new investor must contribute investment capital to the capital transfer account of the enterprise and note the contribution on schedule according to the committed time limit according to the Investment Registration Certificate. In case, the investor fails to contribute capital on schedule committed on the Investment Registration Certificate, the enterprise must carry out procedures for extension of capital contribution and be fined in accordance with law.
• The enterprise shall note the reporting procedures and reporting forms of the enterprise according to the contents of recognition and investment reporting obligations of the enterprise (Usually specified in Article 3 of the Investment Registration Certificate);
• For newly adjusted business lines, which are conditional business lines, enterprises are requested to ensure conditions during operation.

7. Investment certificate adjustment service at KALF

• KALF advises customers on conditions, dossiers and procedures for adjustment of investment certificates;
• Drafting legal dossiers for enterprises related to the adjusted contents in accordance with the provisions of law and information provided by enterprises;
• Authorized representatives of customers shall carry out procedures to adjust investment certificates at competent state agencies;
• Monitor the process of processing dossiers of competent state agencies, explain to state agencies issues related to dossiers of adjustment of investment certificates;
• Guide enterprises to carry out legal procedures arising after adjusting the Investment Certificate;
• Advising on issuance and adjustment of relevant sublicenses after adjusting investment certificates for enterprises;
• Advising on the issuance of changes to the Certificate of Business Registration after adjusting the Investment Certificate;
• Support legal issues arising in the course of business activities for investors in Vietnam;(In case of disputes or legal problems during the adjustment process, KALF’s lawyers will help resolve the dispute and protect the interests of clients in the best way).
• Advising on tax and accountinglaw procedures for foreign-invested enterprises.

8. Frequently Asked Questions

Is adjustment of the Investment Certificate mandatory?

Investors shall carry out procedures for adjustment of the Investment Registration Certificate in case the adjustment of the investment project changes the contents of the Investment Registration Certificate. Therefore, when changing the contents of an investment project, the Investment Registration Certificate must be adjusted. Failure to make adjustments to investment projects may be fined from 70,000,000 VND to 100,000,000 VND. (Article 17, Decree 122/2021/ND-CP takes effect from January 1, 2022).

Does changing the investor’s name need to adjust the Investment Certificate?

According to the provisions of Article 47 of Decree 31/2021/ND-CP, in case of changing the investor’s name, it is necessary to carry out procedures for adjustment of the Investment Certificate.

Can the investment capital be higher than the charter capital?

It is possible to apply for investment capital higher than or equal to charter capital. Accordingly, charter capital is the capital committed to contribute by the investor while the investment capital includes, the charter capital the investor commits to contribute and the investor’s additional capital mobilized outside such as loans from the parent company or credit institutions, or other mobilized capital. Note, for borrowed investment capital including loans from the parent company, the company needs to notify or register a foreign loan with the State Bank.

When to change the Investment Registration Certificate?

According to the provisions of Article 41 of the Law on Investment 2020, investors shall carry out procedures for adjustment of investment certificates in case the adjustment of investment projects changes the contents of the investment registration certificate.

How long does it take to adjust the Investment Certificate?

According to the provisions of the Investment Law 2020, the time for issuance of an adjusted investment certificate is 10 working days from the time the investment registration agency receives a valid dossier. Except for the case of changing the project name, the investor’s name change is 03 working days.

Adjustment of the Investment Registration Certificate at which agency?

The investor shall submit the dossier of adjustment of the Investment Certificate to the investment registration agency. Investment registration agencies are: Management boards of industrial parks, export processing zones, hi-tech parks, economic zones; or provincial/municipal Department of Planning and Investment.

How much does it cost to amend an Investment Certificate?

Currently, foreign-invested enterprises do not have to pay fees and charges for issuance of adjusted Investment Registration Certificates when carrying out procedures for adjustment of investment projects.

What are the penalties for violations when not changing investment certificates?

Pursuant to Point b, Clause 2, Point b, Clause 3, Article 17 of Decree 122/2021/ND-CP stipulating penalties for violations of procedures for adjustment of the Investment Registration Certificate as follows:

“2. A fine of VND 70,000,000 to VND 100,000,000 shall be imposed for one of the following acts:

1. b) Failing to carry out procedures for adjustment of the Investment Registration Certificate in case the adjustment of the investment project changes the contents of the Investment Registration Certificate;
2. Remedies:
3. a) Forcibly carry out procedures for registration of establishment of an executive office of the foreign investor in the BCC contract for violations specified in Clause 1 of this Article;
4. b) Forcibly carry out procedures for adjustment of the Investment Registration Certificate for violations specified at Point b, Clause 2 of this Article;”

During the research process, if you have any questions, please contact us through the following information:

K & ASSOCIATES LAW FIRM

Address : 4th Floor, No. 05 Nguyen Thi Nhung, Van Phuc Urban Area, Thu Duc City, HCMC.

Email : info@k-associates.vn

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