Thông tư 09/2016/TT-BKHDT

CIRCULAR

ON GUIDELINES FOR SUPERVISION, INSPECTION AND ASSESSMENT OF FOREIGN INVESTMENTS IN VIETNAM

Pursuant to the Investment Law No. 67/2014/QH13;

Pursuant to the Government’s Decree No. 84/2015/ND-CP dated September 30, 2015 on supervision and assessment of investments;

Pursuant to the Government’s Decree No. 118/2015/ND-CP dated November 12, 2015 on details and guidelines for the implementation of the laws of Investments;

Pursuant to the Government’s Decree No. 116/2008/ND-CP dated November 14, 2008 on the functions, missions, authority and organizational structure of the Ministry of Planning and Investment;

At the request of the Head of Foreign Investment Agency;

Ministry of Planning and Investment provides the following guidelines for supervision, inspection and assessment of foreign investments in Vietnam:

Chapter I

GENERAL

Article 1. Scope and regulated entities

1. Scope of regulation

This Circular regulates the supervision, inspection and assessment of foreign investments in Vietnam.

2. Regulated entities

a) State management bodies involved in foreign investment activities, i.e. ministries, ministerial-level bodies, provincial People's Committees, investment registration agencies and state authorities managing investments as per the laws on investment;

b) Foreign-invested enterprises and foreign-funded projects that are operating in the territories of Vietnam.

Article 2. Terminology

1. Foreign-funded projects are:

a) Implemented by foreign-invested enterprises and certified in writing for registration of investment as per the laws;

b) Based on business cooperation contracts involving foreign investors or foreign-invested enterprises as per Section 1, Article 23 of the Investment Law.

2. Inspections of the state management of foreign investment are carried out on periodic or ad hoc basis by central state management bodies on investment registration agencies with regard to:

a) The issuance, amendment and revocation of certificates of investment registration;

b) Management activities following the issuance of certificates of investment registration;

c) The abidance by schemes and plans that competent authorities have approved.

Article 3. Objectives of the supervision, inspection and assessment of foreign investments

1. Oversee, inspect and evaluate the abidance by regulations across various echelons on foreign investment management.

2. Maintain the force and effect of legal regulations on the management of foreign-invested enterprises and foreign-funded projects.

3. Maintain the conformity of projects' investment processes to the laws with the aim of upholding the objectives and social and economic impacts of the projects.

4. Expose anomalies and operational violations in order to rectify matters in timely manner or propose revisions to the laws and policies on foreign investment and cope with infractions as per the laws.

5. Supervise the settlement of matters exposed and compliance with solutions thereof.

6. Commend entities that have gained achievements in the implementation of policies and laws on investment.

Article 4. Principles of the supervision, inspection and assessment of foreign investments

1. Abide by the principles of supervision and assessment of investments according to Article 4 of the Government’s Decree No. 84/2015/ND-CP dated September 30, 2015 on supervision and assessment of investments.

2. Exercise authority, functions, missions and processes intra vires as per the laws.

3. Conduct inspections that do not overlap or duplicate in terms of subjects, time and contents; cooperate with others in activities of supervision, inspection and assessment.

4. Uphold promptness, neutrality, precision and strictness.

5. Be open and transparent, cause no impediment or adversity against routine activities of organizations, foreign-invested enterprises and foreign-funded projects that are subjected to supervision, inspection and assessment.

Article 5. Authority to supervise, inspect and assess foreign investments

1. The authority that grants preliminary state approval of an investment shall organize activities of supervising and inspecting the project thereof intra vires.

2. Ministry of Planning and Investment.

a) Inspect state management activities regarding foreign investments;

b) Supervise and evaluate foreign-funded projects in general;

c) Inspect foreign-funded projects of the following types: Projects whose approval is in the discretion of the National Assembly or Prime Minister; projects to which the Ministry of Planning and Investment issues certificates of investment registration or conducts appraisals; projects as assigned by the Government or Prime Minister; projects in relation to the state management of foreign investments by sector, by field and by locality.

3. Ministries and specialized ministerial-level bodies.

a) Lead, inspect and evaluate the implementation of specialized laws in relation to the fields under their management.

Cooperate with the Ministry of Planning and Investment, provincial People’s Committees and investment registration agencies to oversee, inspect and assess the implementation of legal regulations on foreign investment.

Specialized ministries shall mandate specialized local authorities to lead in-depth inspections and assessments in relevant fields.

Specialized local state management bodies, according to their assignments, shall be responsible for reporting and announcing the result of inspections and assessments of local investment projects to the specialized ministries and to local investment registration agencies, accordingly, to lay the foundation of in-depth supervision, summarization, analysis, assessment and harmonization on nation-wide scale.

b) Specialized ministries shall supervise, inspect and assess foreign-funded projects, which operate in fields within the authority of such ministries to consider or certify the investments, according to specialized laws.

Specialized ministries shall be responsible for reporting activities of inspection and supervision on annual basis to the Ministry of Planning and Investment for the latter to compile information by the 20^th of February of the year that succeeds the reporting year.

c) Organize the general supervision, inspection and assessment of foreign investment activities in sectors and fields intra vires.

4. Provincial People’s Committees

a) Organize the general supervision, inspection and assessment of foreign investment activities under the management of local authorities;

b) Lead or assign the Department of Planning and Investment to lead and cooperate with professional units of the provincial People’s Committee to oversee, inspect and evaluate activities of foreign-invested enterprises and foreign-funded projects in local areas.

5. Investment registration agencies

Oversee, inspect and assess foreign-invested enterprises and foreign-funded projects intra vires according to the laws on investment.

6. Investors and enterprises shall themselves oversee, inspect and assess projects according to Article 34, point a of Section 1, Section 2 of Article 38, and Section 2 of Article 64 of the Government's Decree No. 84/2015/ND-CP dated September 30, 2015 on supervision and assessment of investments.

Chapter II

SUPERVISION OF FOREIGN INVESTMENTS

Article 6. Contents of foreign investments under supervision

1. Investors' adherence to reporting regulations;

2. Execution or operation of the investment project;

3. Investment projects’ fulfillment of requirements for environment protection, use of land and natural resources;

4. Timely response to and settlement of ensuing matters intra vires;

5. Supervision of investors’ remedial activities and adherence to remedial measures;

6. Reporting and recommendation of measures against obstacles, which obstruct foreign-invested enterprises and foreign investors, and other matters ultra vires.

Article 7. Process of supervision of foreign-funded projects

1. Government authorities shall supervise foreign-funded projects in two manners: Regular supervision and specialized supervision.

2. Regular supervision includes direct supervision and indirect supervision.

Article 8. Regular supervision

Investment registration agencies shall designate inferior units and personnel to oversee fields, localities and projects (generally referred to as supervisors).

1. Direct supervision

a) Direct and regular activities of supervision of localities and fields:

- Supervisors shall be responsible for comprehending foreign-funded projects intra vires in constant manner.

- Collect documents and information to research, review and reveal matters related to the projects intra vires.

Enterprises and project investors, if necessary, shall be requested to provide documents for supervision.

- Report to supervisory bodies in writing about the progress, activities and obstacles of foreign-funded projects intra vires on six-month, annual or ad hoc basis.

Violations of an enterprise or project, when exposed, shall be reported promptly to supervisory bodies for decisions.

- Expedite enterprises and project investors to adhere to reporting regulations.

- Make and archive project management files.

b) Participate in delegations of government authorities to carry out supervisory activities.

Supervisors, when assigned to a delegation of an investment registration agency, superior authority or specialized management body to inspect foreign-funded projects intra vires, shall:

- Attain information of the tasks and subjects in active manner.

- Read reports and relevant documents in relation to the tasks and subjects to facilitate the delegation's works and supervisory activities.

- Attain authentic knowledge from channels of information (i.e. through the media, through entities, via letters of complaint or denunciation, by authentication, inspection, auditing, tax management, etc.) of the enterprise or project to which the delegation carries out activities with the aim of detecting issues for the delegation’s works and for supervisory activities.

- Report activities with the delegation to the supervisory body.

- Make and archive project management files.

2. Indirect supervision

Indirect activities of a supervisor authority (in which supervisors assume direct responsibilities) to supervise foreign-invested enterprises and foreign-funded projects include:

- Scrutinize and fathom situations through reports and notices of inspection results of competent government authorities; scrutinize reports on project execution of foreign-invested enterprises and foreign-funded projects in order to expose issues.

- Exchange and obtain information from state management bodies (i.e. business registration, tax management, public security, customs, specialized management, etc.), social and political organizations, the public, mass media and complaints or denunciations in order to be knowledgeable about enterprises and projects under their management and supervision. Scrutinize documents, reports and written materials provided on request by enterprises and projects under supervision to reveal issues to be supervised.

Supervisors may converse with personnel of foreign-invested enterprises or foreign-funded projects by phone, by email or in person, when necessary and upon permission by the head of supervisors' bodies, in order to clarify issues in relation to activities being supervised. Investment registration agencies shall deliver the content of a conversation in writing to the foreign-invested enterprise or the main investor of the foreign-funded project in 03 days from the date that the conversation occurs on phone, via email or in person.

- Through supervisory activities, supervisors shall report to investment registration agencies to remind and request enterprises or projects supervised to overcome and rectify any shortcomings.

- Make and archive project management files.

Article 9. Specialized supervision

1. Supervisory bodies shall base on state management demands, data-acquiring operations, reports and relevant documents to establish a specific program or plan for supervising a foreign-invested enterprise or foreign-funded project intra vires. The foreign-invested enterprise or foreign-funded project shall be informed of the content and time of supervisory activities.

2. Supervisory bodies shall plan their specialized supervision of defined subjects, form supervisory teams, specify missions for each member of a team, and request the enterprise or project being supervised in writing for reports and documents thereof.

3. Request foreign-invested enterprises and foreign-funded organizations to held meetings in which they present their report to a supervisory team and participants discuss the report.

The supervisory team shall discuss and demand requisite issues with the enterprise or project being supervised.

4. The supervisory team shall report to the supervisory body about the result of the former’s supervision of the enterprise or project. The content of the report shall conform to Article 6 of this Circular.

5. The supervisory body shall review and evaluate the supervisory team’s report and have the  enterprise or project supervised informed in writing of the findings regarding its strengths, weaknesses and errors (if any) and essential demands.

6. Supervisors shall archive the supervisory team’s findings in project management files.

Article 10. Reporting of foreign-funded projects

1. Investment registration agencies shall be responsible for making and sending general project supervision reports within their authority to the Ministry of Planning and Investment by the 20^th of February of the year succeeding the reporting year. The content of the report shall conform to Article 6 of this Circular.

2. Ministry of Planning and Investment shall summarize and assess, in general, the difficulties ensuing during the implementation of foreign-funded projects across the country. It shall propose nation-wide universal measures and policies, regulate and maintain investments according to the plan, goal and schedule towards efficiency.

Chapter III

INSPECTION OF FOREIGN INVESTMENTS

Part 1. CONTENT AND PLANNING OF INSPECTIONS

Article 11. Content of inspections of the state management of foreign investments

1. Authorities’ promulgation of legislative documents that provide guidelines intra vires; entities’ adherence to legal regulations and policies on foreign investment.

2. Planning activities.

3. Conformity of policies with social and economic circumstances.

4. Abidance by schemes and plans of investment and development.

5. Authorities’ adherence to the laws on issuance of decisions on preliminary state approval of investments; certifying bodies’ issuance, amendment and revocation of certificates of investment registration as per the laws on investment.

6. Regulation of preferential treatments and supports for investment projects.

7. Ground clearance and compensation, land reclamation, land assignment.

8. Fulfillment of duties of supervising, inspecting, assessing and supporting investment activities to which preliminary state approval or certificate of investment registration has been granted.

9. Summarization and reporting of the progress of investment projects as per regulations.

10. Settlement of difficulties and complaints of foreign investors.

Article 12. Content of inspections of foreign-invested enterprises and foreign-funded projects

1. Contribution to charter capital and investment capital; contribution to legal capital (if regulated); total capital actualized out of the registered amount.

2. Progress of the project; implementation of the project's investment objectives; application and transfer of technologies according to the project's commitments (e.g. details of the technologies, efficiency of technology transfer, installation of equipment and technological lines of the investment project); investors’ fulfillment of commitments and requirements for investment activities, incentives and supports upon the operation of the project.

3. Payment of financial duties to the government (i.e. taxes, fees, land rent, water surface rent, etc.).

4. Implementation of legal regulations on labor and of collective labor agreements, establishment of salary schemes, registration of internal labor regulations; realization of policies and benefits in relation to labor contracts, salary, work time, rest time, social insurance and other insurances such as: Health insurance, unemployment insurance, etc. for employees; implementation of legal regulations of Vietnam on management of foreign specialists and workers working in Vietnam; implementation of regulations on immigration and temporary residence of local and foreign workers.

5. Abidance by legal regulations on foreign exchange management.

6. Abidance by legal regulations on: land, renting of land, use of land, conversion of land, minerals and natural resources, and environmental protection.

7. Financial capacity of foreign-invested enterprises:

a) Value of assets contributed (e.g. land use right, machinery, equipment, intellectual property, etc.).

b) Use of machinery and equipment that constituent fixed assets, which are exempt from import duty, according to the purpose of importation.

c) Inspection of the valuation of the enterprise and shares prior to listing in particular events of overvaluation of the value of the enterprise.

d) Transactions with the parent company abroad or associated enterprises.

e) Settlement of accounts payable (e.g. bank loans, corporate bonds, etc.).

f) Establishment and use of provisions, depreciation of fixed assets, recording of differences in currency exchange rates.

g) Maximum and minimum rates of capital contribution in BT projects and associated projects; capitalized development costs of BOT projects.

h) Distribution of profit(s) related to state-owned capital investment(s) in foreign-invested enterprises and foreign-funded projects.

i) Preservation of capital of state-funded enterprises and projects (i.e. investments to other enterprises and admission of partners investing into joint venture or associated business).

8. Other details of the implementation of investment projects, such as:

a) Implementation of legal regulations on construction, building quality management, fire prevention;

b) Abidance by regulations on supervision and assessment of investments and reporting regulations;

c) Other relevant information of investment projects;

d) Compliance with remedial measures against the issues exposed.

9. For projects to which certificates of investment registration are issued, the content of inspections, apart from those defined in Section 1 to 8 of this Article, shall include adherence to the decision on preliminary state approval of the investments, certificate of investment registration and certificate of business registration.

10. The content of an inspection may include all or parts of those defined in this Article according to the purpose and need of the inspection and to the nature and traits of the foreign-funded project.

Article 13. Forms of inspection

1. Periodic inspection.

Periodic inspections shall be carried out according to annual inspection plans approved by competent authorities that are stated in Article 5 of this Circular.

2. Ad hoc inspection.

Ad hoc inspections shall occur on case basis according to management demands and actual circumstances or upon request with regard to difficulties that ensue during the implementation of investment activities or of legal regulations and policies on foreign investment.

3. Specialized inspection.

Specialized inspections shall occur upon request by specialized management authorities with the aim of evaluating the implementation of legal regulations in relation to the fields under their management.

Article 14. Methods of inspection

1. Competent authorities shall conduct inspections by the following methods according to actual conditions and contents:

a) Through the National system of foreign investment information;

b) Through reporting;

c) Through partial and full reviews;

d) Through meetings;

dd) Through work sessions with organizations being inspected;

e) Through inspection teams or delegations;

2. An inspection may occur via one or various methods above to attain the highest efficiency according to specific missions.

Article 15. Establishment, modification and notification of periodic inspection plans

1. Periodic inspections must be planned. Inspection plans shall be made separately or included in the agenda of competent authorities as per Article 5 of this Circular. Inspection bodies, when necessary, can present inspection plants to the head of the competent authority for any revisions.

2. Inspection bodies shall prepare inspection plans, which indicate the time, location, subject, form and content of the inspection, collaborative units, etc.

The inspection plan for the following year for projects defined in Point c of Section 2, Section 3 and Section 4, Article 5 of this Circular shall be delivered to the summarizing body as defined in Section 3 of this Article by the 30^th of November of each year.

3. Ministry of Planning and Investment (i.e. Foreign Investment Agency) shall summarize annual plans for inspection by ministries and provincial People’s Committee of foreign-invested enterprises and foreign-funded projects on nation-wide scale. If inspection plans overlap, the Ministry of Planning and Investment shall notify bodies that have overlapping plans for revision.

4. Department of Planning and Investment shall summarize annual inspection plans in the related province or centrally-affiliated city.

5. Inspection plans shall be announced and published on the websites of the summarizing body and inspection body and on the national portal for foreign investments.

Part 2. ORGANIZATION OF INSPECTIONS

Article 16. Inspection through the National system of foreign investment information

1. Inspections through the national system of foreign investment information shall occur on regular, periodic or ad hoc basis.

2. The inspection shall verify:

a) Details of the Certificate of investment registration that has been issued by an investment registration agency;

b) Processing of investment formalities on the system of the investment registration agency;

c) Online reporting by the enterprise that carries out the investment project.

Article 17. Inspection through reporting

1. Inspections through reporting shall occur on periodic basis or upon request by individuals competent to or organizations designated to conduct inspections.

2. The content and delivery time of the report must conform to the request of the individual competent to or the organization designated to conduct the inspection.

3. The body competent or designated to conduct the inspection shall consider report(s), process data, have data verified and make resultant report(s).

4. The organization inspected shall be given at least 07 working days to prepare its report from the date that it receives the request of the individual competent to or the body designated to conduct the inspection. In special events, the time for the organization inspected to prepare its report shall be at the discretion of the individual competent to conduct inspections.

Article 18. Inspection through partial and full reviews or meetings

1. Inspections through partial and full reviews or meetings shall occur at the discretion of individuals competent to conduct inspections.

2. The organization inspected shall present its report in a meeting or send the partial or full review report according to the request of the competent body.

Article 19. Inspection through work sessions with organizations inspected

1. The body competent or designated to conduct inspections, when working directly with the organization inspected, shall invite the representative of the latter to its office or designate its representative(s) to the latter's office.

2. Individuals competent to and bodies designated to conduct inspections can consult with specialists on specialized matters regarding the content of an inspection; however, such individuals and bodies shall be held responsible for reporting the result of the inspection.

Article 20. Establishment of inspection teams

1. Basis for the establishment of inspection teams

Inspections that are carried out by inspection teams on regular basis or upon requests by bodies competent to conduct inspections. Competent authorities shall base on actual circumstances to cooperate with relevant bodies to carry out interdisciplinary or specialized inspections of investment activities. If a project undergoes 02 or more specialized inspections in a year according to the inspection plans approved, an interdisciplinary inspection team shall be formed.

2. Forming of inspection teams

a) The information of inspections conducted by inspection teams shall be input into inspection plans of state administrative bodies and be notified to relevant specialized state management bodies in order to assign personnel into a proper interdisciplinary inspect team, except the inspections carried out on ad hoc basis. An inspection team is formed at the discretion of a body competent to or designated to conduct the inspection.

b) The body designated shall base on the inspection plan approved by the body competent to conduct the inspection or on actual demands of management activities to draft primarily and present the Outline of inspection to the body competent to conduct the inspection, which shall then issue a decision to form the inspection team. Such decision must indicate the name of the subject inspected, personnel of the inspection team (i.e. leader, deputy leader, members), scope, form, content and time of the inspection, responsibilities of the inspection team, of the inspection body and relevant bodies.

c) The leader of the inspection team shall base on actual circumstances to present the specific inspection plan to heads of competent authorities or of bodies mandated for approval. The plan shall include:

- Purpose(s) and demand(s) of the inspection;

- Content of the inspection;

- Time and location of the inspection;

- Personnel of the inspection team;

- Assignments for members of the inspection team;

- Agenda of the inspection team;

- Estimated expenses of the inspection team.

d) On the basis of the decision to form the inspection team and of the specific inspection plan approved, the body leading the inspection shall be responsible for notifying the subject inspected and any relevant organizations in writing of the inspection (i.e. time, location, content of the inspection; documents to be available for the inspection).

Bodies leading inspections can use the format of the report to be made for the inspection in Appendix 2 of this Circular. A report delivered to the subject inspected may be abridged or supplemented according to the purpose(s) and demand(s) of the inspection and the traits and business lines of the foreign-funded project being inspected.

The time of an inspection is left to the discretion of the leader of the inspection team; however, an inspection shall occur at least 05 work days after the organization inspected is notified in writing of the inspection or at least 07 work days after the decision to form the inspection team is issued in writing.

The inspection team shall be responsible for informing the organization inspected of the time and content of ad hoc inspections at least 01 work day prior to the date of inspection. The leader of an inspection team, when necessary, can set the time of an ad hoc inspection.

3. Duration of inspections

The duration of an inspection team’s operations shall be left to the discretion of the individual who issues the decision to form such team. However, the length of time of an inspection shall not exceed 20 work days upon its commencement. A complex inspection involving various bodies in (an) extensive area(s) may last longer; however, it shall be limited to at most 30 work days. The duration of an inspection against an enterprise or project shall not exceed 03 work days. The duration of a longer complex inspection shall not exceed 05 work days.

4. Realization of inspections

a) After the organization inspected is notified, the leader of the inspection team shall be responsible for executing the specific inspection plan.

b) The inspection team shall be responsible for collecting, scrutinizing, analyzing and evaluating the information and documents related to the inspection. Such information and documents, if necessary, may be collated. The team shall then verify the written record of inspection and make report(s). Such inspection record shall be completed upon the end of the duration of the inspection at the organization inspected. The record must bear the signatures of the leader of the inspection team or a team member mandated or designated (in case of an interdisciplinary inspection of various issues) and of the competent representative of the organization inspected in order to proceed to report and handle the result of the inspection.

d) Upon the end of the inspection at the premise inspected, the leader of the inspection team shall be responsible for informing the competent representative of the organization inspected in writing and handing over documents and equipment that it uses during the inspection.

Article 21. Expenditure

The expenditure for inspection activities of state management bodies shall be arranged and allocated from the annual state budget according to legal regulations of financial management and to Article 52, Article 53 and Article 54 of the Government’s Decree No. 84/2015/ND-CP dated September 30, 2015 on supervision and assessment of investments.

Part 3. REPORTING OF INSPECTION RESULTS, RESPONSIBILITIES FOR VERIFYING AND HANDLING OF INSPECTION RESULTS

Article 22. Reporting of inspection results

1. In 10 work days upon the end of an inspection, the leader of the inspection team or the body leading the inspection shall be responsible for reporting the result of the inspection.

2. The draft of the inspection report must be sent to bodies participating in the inspection (in case of an interdisciplinary inspection) or to the members of the inspection team for opinions before being submitted to competent authorities. Bodies or members inquired must respond in writing in 05 work days upon the receipt of the draft report. A body or member that does not respond to the body leading the inspection in such period of time shall be deemed to consent to the draft report.

3. The content of the report shall indicate:

a) Grounds of the inspection;

b) Form of the inspection;

c) Time and location of the inspection;

d) Participants in the inspection;

dd) Name of the organization inspected;

e) Content of the inspection;

g) Strengths and shortcomings of the organization inspected; reasons of shortcomings;

h) Opinions of participating bodies or members of the inspection team;

i) Recommendations of the organization inspected;

k) Remedial conclusions intra vires or remedial recommendations to competent authorities for the shortcomings. The report shall specify accepted opinions from participating bodies, members of the inspection or the organization inspected. Moreover, the report must indicate grounds that lead to the acceptance of such opinions. The report also states recommendations on handling shortcomings;

l) Other matters (if any).

4. The official inspection report shall be submitted to the authority competent to issue the inspection decision for further actions and to the Ministry of Planning and Investment (Foreign Investment Agency) for summarization.

5. Pursuant to the traits and events of the inspection, the inspection report shall be published in one or some of these methods:

a) In a meeting with: The individual making the inspection decision, the inspection team, the subject inspected and related entities.

b) Through mass media.

c) On the website of the state management body.

d) On the bulletin board of the subject inspected.

dd) Upon request by related bodies and organizations.

Article 23. Rights, duties and responsibilities of bodies and organizations involved

1. Rights, duties and responsibilities of inspection bodies:

a) Notify the organization inspected of the time and content of the inspection, send the inspection report to the organization inspected, report to competent authorities about the result of the inspection and remedial recommendations (e.g. reminder, administrative penalty, suspension of foreign-funded projects' activities, revocation or request for revocation of the certificate of investment registration, etc.);

b) Request competent specialized state management bodies in local areas to cooperate and support the inspection.

c) Cope with or seek competent authorities’ timely treatments against entities that do not adhere to or misinterpret the laws, policies and legal regulations on investment;

d) Rectify or seek competent authorities’ rectifying inappropriate policies and legal regulations.

dd) Commend or seek competent authorities’ commending bodies and organizations conforming to the laws, policies and legal regulations on investment;

2. Rights, duties and responsibilities of organizations inspected:

a) Cooperate and support inspection bodies during the inspection, assign competent and relevant personnel to work with the inspection team;

b) Provide information and make report(s) strictly according to inspection bodies’ requests;

c) Make reports, provide authentic information and documents and assume liabilities to the law for the content of such reports, information and documents.

d) Adhere to decisions by inspection bodies;

dd) Have the right to lodge petitions and interpret conclusions of inspection bodies and competent individuals;

e) Be held responsible for failing or misinterpreting the laws, policies and legal regulations on investment.

Article 24. Processing of inspection findings

1. Competent entities, when receiving an inspection report, shall be responsible for processing the findings of such inspection.

Such entities shall request competent authorities to handle issues ultra vires.

Findings of an inspection shall be processed in at most 15 work days upon the receipt of the inspection report.

2. Entities that defer or obstruct the authorities' verifying and processing of inspection findings shall be held liable to the law.

3. The processing of inspection findings must conform to the laws.

Chapter IV

ASSESSMENT OF FOREIGN INVESTMENTS

Article 25. Responsibility for assessment of foreign-funded projects

1. Investors and enterprises that conduct foreign-funded projects requiring preliminary state approval shall carry out finalization assessments.

2. Investment registration agencies and state management agencies regarding investments shall carry out ad hoc assessments and impact assessments when necessary.

Article 26. Content of finalization assessment

1. Contribution to the charter capital of the enterprise, to the legal capital (for conditional business lines) and to the investment capital of the project; mobilization and use of finances as per the laws; payments during the implementation of the project.

2. Progress of the project in comparison with that defined in the written preliminary state approval of the investment or the certificate of investment registration and in the application to government authorities for certification of investment registration.

3. Land use and labor use of the project; abidance by legal regulations on environmental protection.

4. Payment of financial duties to the government (i.e. taxes, fees, land rent, water surface rent, etc.).

5. Evaluation of the realization of objectives, resources mobilized, work progress and benefits of the project.

6. Recommendations.

Article 27. Content of impact assessment

1. Evaluation of the realization of investment objectives (i.e. conformity to the plan, the written preliminary state approval of the investment or the certificate of investment registration, relevant legal regulations).

2. Evaluation of the rate of completion (according to the content and progress registered or defined in the written preliminary state approval of the investment or certificate of investment registration).

3. Evaluation of the efficiency of the investment (i.e. the use of labor and lands; fulfillment of financial duties to the state budget; rate of investment; transfer of technologies and experience, business and management skills.

4. Evaluation of the level of production technologies, transfer of technologies and experience, management and business skills.

5. Evaluation of the activities of reporting to state management agencies as per regulations.

6. Recommendations.

Article 28. Content of ad hoc assessment

1. Pertinence of the result of the project to the objectives of the investment;

2. Rate of completion of workloads in comparison with those defined in the written preliminary state approval of the investment or certificate of investment registration (if any);

3. Determination of any unexpected occurrences and reasons thereof;

4. Effects of unexpected occurrences on the implementation of the project and the achievability of the project’s objectives;

5. Recommendations.

Chapter V

IMPLEMENTATION

Article 29. Effect

1. This Circular comes into force 45 days after the date that it is signed.

2. Decision No. 1190/QD-BKH dated September 19, 2008 by the Ministry of Planning and Investment on the inspection by Ministry of Planning and Investment of foreign investment activities shall lose force upon the date of effect of this Circular.

Article 30. Implementation

1. Ministries, agencies, provincial People’s Committees and investment registration agencies shall supervise, inspect and assess foreign investment activities under their management as per this Circular.

2. Ministry of Planning and Investment shall cooperate with ministries, agencies, provincial People’s Committees and investment registration agencies to provide guidelines for the implementation of this Circular.

3. During their implementation of regulations, entities shall refer difficulties to the Ministry of Planning and Investment for timely review and rectification.

APPENDIX

Form No. 1:

………..… [place],… … … [date]

INSPECTION PLAN

………………………………. (specify the content of the inspection)

- Pursuant to ... (inspection plan);

- Pursuant to the Decision to form the Inspection team ………..

The content of planned works includes:

1. List of members:

1. Mr. (Ms.) ……………………………, Leader;

2. Mr. (Ms.) ……………………………, Deputy leader (if any);

3. Mr. (Ms.) .............................................., member;

4. Mr. (Ms.) .............................................., member;

5. ……………………

2. Purpose and demand of the inspection:

- ………………………

- ………………………

3. Content of work session:

3.1. Content of the work session with the issuer of the certificate of investment registration (if applicable):

- Pursuant to Article 11 of the Circular.

- Assessment of the implementation and progress of the foreign-funded project within authority in the past time.

- Recommendation on treatments towards the project in future.

3.2. Content of the work session on the enterprise’s implementation and reporting of the project:

- Pursuant to Article 12 of the Circular.

- Capacities to implement the project in future;

- …………………. (other details according to the traits of the inspection team)

4. Agenda:

4. Assignment:

4.1. General responsibilities of members of the inspection team (according to the decision to form the inspection team).

4.2. Specific responsibilities of members with regard to preparation, missions and reporting

5. Expenditure and provisions expected:

- Expenditure for transport, accommodation and meals when on duty shall be subject to the decision to form the inspection team.

- Expenditure for air transport (if any).

- Other transport expenditure.

Form No. 2:

REPORT ON PROJECT IMPLEMENTATION AND BUSINESS RESULT OF THE ENTERPRISE

 (The format of the report for use in the work session with the inspection team)

I. GENERAL INFORMATION OF THE ENTERPRISE OR PROJECT:

1. Name of the enterprise:

Telephone:                                              Mobile:

2. Investment License/ Investment Certificate/ Investment Registration Certificate/ Business Registration Certificate No.:                                            date of issue:

Amendment (if applicable):                     place of issue:

Summarization of amendments:

Requirement: Enclosed with the copies of the amended Investment License/ Investment Certificate/ Investment Registration Certificate/ Business Registration Certificate.

3. Investor (specify each investor and its country/territory):

4. Main address:

5. Name of the project:

6. Objectives of the project:

7. Investment capital:

- Total investment capital registered (USD):

- Total capital contributed by investors (USD):

In which:

+ Investor ….: having contributed …. USD, by cash: .... USD, by ….. USD, rate in total capital contributed;

+ Investor ….: having contributed …. USD, by cash: .... USD, by ….. USD, rate in total capital contributed;

- Progress of capital contribution as undertaken:

- Regulations on incentives and supports for investment projects and fulfillment of conditions for incentives.

8. Duration: ... years

9. Location:

II. PROJECT IMPLEMENTATION

1. Fulfillment of administrative formalities:

- Tax code: (date of issue)

- Construction formalities:   , Construction permit n^o:      (date of issue);

2. Implementation of investment capital (USD):

2.1. Capital contribution by investor:

2.2. Capital mobilized: borrowings (from abroad, from parent company, from credit institutions in Vietnam) and other finances mobilized (offering of stocks or bonds, from customers, etc.):

3. Implementation of each objective/ work item, project investment costs:

- Remarks on the matching of the project’s advancement with the progress as undertaken, explanation of any delay:

4. Land use:

4.1. Land allotted and used:

Note: (Enclosed with the copies of documents and written decisions related to the lands of the project)

4.2. Explanation and remark in relation to land renting and land use, clarification of any delay: ……………………………………………………….

………………………………………………………………………………………………………

5. Designed capacity, production outcome (for production projects):

Unit:

6. Business outcome, fulfillment of financial duties to the government:

Unit:

6. Workforce (person):

7. Actual supply, limit and consumption of coal, electricity and materials (for mineral exploitation or production projects):

- Exploitation and supply of main materials (limestone, clay, etc.):

- Consumption of heat:                kcal/ product unit

- Consumption of electric power:                 kwh/ product unit

- Investment in the system that utilizes the heat of exhaust gas to generate electricity: System invested and operated (on … [date], value of investment: …; generating power); time of investment if not yet realized;

8. Adherence to environmental protection regulations:

- Decision on approval of the environmental impact assessment report (number, date of issue, issuing place) or the Undertaking of environmental protection

- Objectives and capacity as registered in the certificate of investment registration.

- Objectives and designed capacity as endorsed by the environment management authority.

- Waste treatment systems and costs: ....

- Waste treatment:

- Assessment of the fulfillment of requirements on waste treatment as per the laws on environmental protection.

III. General assessment of activities of the enterprise:

1. Economic and social effects of the project (at present and in future):

2. Plan for project implementation in future (indicate works and schedule):

3. Difficulties during the implementation of the investment project in the field of cement production, recommendations by the enterprise in relation to governmental policies, laws and state management.