Nghị định 11/2005/ND-CP

DECREE

PROVIDING IN DETAIL FOR TECHNOLOGY TRANSFER (AMENDED)

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the October 28, 1995 Civil Code;
In order to promote technology transfer;
At the proposal of the Science and Technology Minister,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1: Subject and scope of application

1. This Decree provides in detail for technology transfer in order to guide the implementation of the provisions of Chapter III, Part Six of the Civil Code adopted on October 28, 1995 by the National Assembly of the Socialist Republic of Vietnam.

2. This Decree shall apply to domestic and foreign organizations and individuals carrying out the following activities:

a. Transfer technology from abroad into Vietnam;

b. Domestically transferring technology;

c. Transferring technology from Vietnam to abroad.

3. The parts on technology transfer in the equipment import contracts or in the technology transfer contracts enclosed with the equipment import contracts must comply with this Decree.

4. The technology transfer within the framework of the international agreements which Vietnam has signed or acceded to and contain provisions different from those of this Decree shall comply with the provisions of such international agreements.

Article 2: Interpretation of terms

In this Decree, the terms are construed as follows:

1. Technology transfer means the form of buying and selling technology on the basic of a technology transfer contract already agreed upon in accordance with the provisions of law. The seller has the obligation to transfer general technological knowledge or supply machinery, equipment, services, training, etc. together with the technological knowledge to the buyer; while the buyer has the obligation to make payment to the seller for receiving and using such technological knowledge in accordance with the terms agreed upon and stated in the technology transfer contract.

2. Transferor refers to the technology transfer defined in the Civil Code.

3. Transferee refers to the technology transferee defined in the Civil Code.

4. Payment price for the technology transfer means the total amount of money payable by the transferee to the transferor throughout the valid term of the contract.

5. Knows-how means secret and important technical experiences, knowledge and information accumulated or discovered in the process of research, production and business, capable of creating high-quality services and products that bring about big economic benefits and are able to create competitive edge on the market.

6. Domestic technology transfer means technology transfer within the Vietnamese territory, except the transfer across the boundaries of export-processing zones of Vietnam.

7. Transfer of technology from abroad into Vietnam means the transfer of technology from outside the national boundaries or from export-processing zones of Vietnam into the Vietnamese territory.

8. Transfer of technology from Vietnam to abroad means the transfer of technology from inside to outside the national boundaries of Vietnam or into export-processing zones of Vietnam.

9. Net selling price means the selling price of a product or service created by the transferred technology, which is the invoiced price minus the following amounts:

a. Value added tax, special consumption tax and/or import tax, if any, on the sale invoice;

b. The buying prices, freights, insurance and import tax of semi-finished products, components, details and accessories imported or procured at home;

The above-said semi-finished products, components, details and accessories shall be determined in the contracts, depending on the technology and types of product manufactured by the transferred technology.

c. Expenses for purchasing packing materials, packing, transport of products to the sale place, and advertising.

10. Net turnover means turnover from the sale of products or services created by the transferred technology, which is calculated according to sale invoices minus value added tax, special consumption tax and/or import tax (if any, on the sale invoices).

11. Pre-tax profit of an enterprise is net turnover minus total production costs.

12. Technology appraisal means activities of analyzing the present state of a technology in order to determine the level and value of such technology and its impact on socio-economic development and the environment.

13. Technology evaluation means activities of considering and appraising the feasibility suitability of the selected technology to the States technology development policy and the objective and content of the technology transfer contract or the investment project.

14. Technology expertise means activities of examining and appraising the suitability of the technology in reality to the contents of the technology transfer contract or the investment project.

15. Technology evaluation and expertise organization means a scientific and technological service organization which is accredited to be qualified to appraise and expertise technology and must be responsible before law for its appraisal and expertise results.

Article 3: Technology transfer conditions

Individuals, legal persons or other entities may transfer a technology when fully meeting the following conditions:

1. The transferors are lawful owners of the technology or are entitled to transfer the right to use the technology.

2. The technology does or are violate the provisions of Article 5 of this Decree

Article 4: Contents of the technology transfer

Technology transfer includes transfer of one, some or all of the following contents:

1. Technological contents which belong to or are associated with industrial property objects that are permitted to be transferred and are currently protected by Vietnamese law. The mere transfer of rights to own or use industrial property objects shall comply with industrial property legislation.

2. Technological knows-how, knowledge in the form of technological plan, technical solution, technical process, pre-design document or technical design, formula, technical parameter, technical drawing or plan, computer software (transferred under technology transfer contracts), data on the transferred technology (hereinafter called technical information for short), with or without accompanying machinery and/or equipment.

3. Solutions to production rationalization or technology renovation.

4. Provision of various technology transfer support services for the transferees to acquire the technological capability to create quality products or services as determined in the contracts, including :

a. Selecting technology, guiding the installation of equipment, operating equipment chains on a trial basis in order to apply the transferred technology;

b. Advising on technology management, business management, guiding the implementation of the transferred technological processes;

c. Training to raise the professional and managerial qualifications for workers, technicians and managers to firmly grasp and operate the transferred technology.

5. Machinery, equipment, technical means accompanying one or some of the contents stated in Clauses 1, 2, 3 and 4 of this Article.

6. Granting business franchise licenses under which the transferees shall use the goods trademarks, labels and knows-how of the transferors for business activities in the domain of commercial services. The term of a business franchise license shall be agreed upon by the involved parties in accordance with the provisions of law.

Article 5: Technologies banned from transfer

Technologies banned from transfer according to regulations include:

1. Technologies failing to meet the requirements set by Vietnamese laws on labor safety, labor hygiene, human health and environmental protection.

2. Technologies adversely affecting, and causing bad consequences to, culture, defense, national security, social order and safety of Vietnam.

3. Technologies failing to bring about technical, economic or social benefits.

4. Technologies in service of security and defense, when the transfer thereof has not yet been permitted by competent state agencies.

Article 6: Guarantee against infringements by third parties upon the rights to use the transferred industrial property objects

Infringements by third parties upon the rights to use the transferred industrial property objects shall be handled according to the industrial property legislation.

Article 7: Right to develop transferred technology

1. The transferees may renovate and develop the transferred technologies without having to inform the transferors thereof, unless it is otherwise agreed upon by the involved parties in the technology transfer contracts.

2. The transfer of renovations and developments of the transferred technologies in accordance with the agreements reached in the signed contracts or in a new or additional contract shall be effected by the parties to the contracts on the principles of equality and mutual benefit.

Article 8: Right to request technology appraisal or expertise

Organizations and individuals may request technology appraisal and evaluation organizations to appraise and expertise technologies as a basis for the technology transfer or the evaluation of the technology transfer results. Appraisal or expertise certificates of the above-said organizations for the transferred technologies shall be prioritized for use as legally binding documents based on which the agencies with competence to make investment decisions or to register technology transfer contracts shall consider and make investment decisions or register technology transfer contracts.

Chapter II

TECHNOLOGY TRANSFER CONTRACTS

Article 9: Principles of making of contracts

1. All technology transfer activities must be carried out on the basis of written contracts on technology transfer (hereinafter called contracts for short) and comply with the provisions of this Decree. The contracts shall serve as a basis for the parties to realize their commitments, ensure the legality of the technology transfer, payment and resolution of disputes.

2. Contracts may be made for the transfer of one or many of the technological contents specified in Article 4 if this Decree.

Where the transferor transfers to the transferee many technological contents, the transfer of such contents must be made in a single contract.

Where the transferor transfers to the transferee many technological contents, the transfer of such contents must be made in a single contract.

Where the transferor transfers a technology together with machinery, equipment and/or technical means, the list of such machinery, equipment and/or technical means must be included in the concerned contract.

3. If a contract on the transfer of a production equipment chain or the transfer of complete equipment or equipment of an investment project contains a content of technology transfer, this content must be made as a separate part of the equipment import contract and comply with the provisions of this Decree. Expenses for technology transfer must be separately calculated (not included in the equipment prices).

4. Where a contract has been made but the transferor and the transferee wish to make an additional transfer or change the contents of such contract, they must make an additional contract in accordance with the provisions of this Decree.

Article 10: Industrial property objects in technology transfer

Where the transferor transfers to the transferee the rights to own or use industrial property objects and other contents stated in Article 4 of this Decree, such transfer must be made as a separate part in the technology transfer contract.

A technology transfer contracts part on the transfer of the rights to own or use industrial property objects shall be governed by the industrial property legislation.

Article 11: Contracts on transfer of new technological research and development results

1. The State encourages the transfer of new technological research and development results in accordance with the provisions of this Decree on the basis of keeping confidential secret information and commercial secrets in accordance with the provisions of Vietnamese laws and the international agreements which Vietnam has signed or acceded to.

2. For the transfer of new results of technological research and development funded with State capital, it must comply with the provisions of this Decree and the regulations on the use of State capital in scientific and technological activities.

3. The transferor and the transferee of new technological research and development results shall agree upon the right to file applications for protection of industrial property objects, the mode of payment and the amount of remuneration payable to the authors of such technological research and development results in accordance with the provisions of the industrial property and technology transfer legislation.

Article 12: Contents of technology transfer contracts

A contract shall contain the following principal contents:

1. The name and form of the technology to be transferee.

2. The names and addresses of the transferor and the transferee. The names and titles of the parties representatives.

3. Concepts and terms used in the contract.

4. The purpose, content, scope, characteristics, quality and result of the technology transfer.

Where the to be-transferred technology involves a content for which an industrial property right protection title has been granted by a competent Vietnamese management agency, the contract must contain a separate article or part on the transfer of industrial property rights.

5. The powers and responsibilities of the parties in the technology transfer, guarantee, warranty and environmental protection.

6. The technology transfer plan, timetable, time limit, place and mode.

7. The price and payment mode.

8. The valid term of the contract.

9. The applicable laws (for contracts on the transfer of technology from abroad into Vietnam).

In addition to the principal contents prescribed in this article, the involved parties may reach agreement on incorporating other contents in their contracts provided that such contents do not contravene Vietnamese laws.

Article 13: Language of technology transfer contracts

Technology transfer contracts and enclosed documents must be made in Vietnamese. Where the contract parties or organizations, the contract documents may be also made in another common foreign language as agreed upon by the involved parties. Contract documents in Vietnamese and a foreign language shall be equally valid.

Article 14: Time of entry into force of technology transfer contracts

1. Time of entry into force of technology transfer contracts:

a. Contracts not required to be registered shall enter into force from the time agreed upon by the involved parties.

b. Contracts required to be registered shall enter into force from the date their registration is certified by competent State management agencies;

c. Within 15 working days after receiving the valid contract dossiers, if competent State management agencies issue no written requests for amendment and/or supplementation, the contracts shall enter into force from the sixteenth working day from the date the competent agencies receive complete and valid dossiers.

2. If a contract contains a part on the transfer of rights to own or use industrial property objects, such part shall become effective in accordance with the provisions of the industrial property legislation.

3. The time of starting and completing the calculation of payment prices for the transferred technologies shall be agreed upon by the involved parties.

The time of starting and completing the calculation of payment prices for the transferred technologies may or may not coincide with the time the contracts become effective. Payments may be made only after the contracts become effective.

4. For projects which have been granted the investment licenses or investment preference certificates or investment decisions by State agencies, the transferors may immediately proceed with the technology transfer but the concerned contracts must be registered within 18 months counting from the date of commencement of the technology transfer. Where a contract is registered late according to the provisions of this Clause, the transferee may only pay for the technology transfer contents already effected within 18 months before the time the contracts registration is certified.

Article 15: Term of technology transfer contracts

1. The term of a contract is the valid duration of the contract.

The term of a contract shall be agreed upon by the involved parties according to the requirements and contents of the transferred technology but must not exceed 7 years as from the date contract becomes effective.

2. Where the involved parties agree that their contracts shall have a term of more than 7 years, competent state agencies may permit a term of 10 years at most in one of the following cases :

a. The technology is of an advanced type in the world and the transferor commits to further transferring renovations throughout the term of the contract;

b. The transferred technology is of great significance to socio-economic development;

c. The transferred technology creates commercial products of a new generation in the world.

3. The term for the transfer of the rights to own or use industrial property objects shall be agreed upon in accordance with the provisions of the industrial property legislation.

Article 16: Obligations to perform technology transfer contracts

The technology transferors and transferees shall have to realize the agreements on their respective rights and obligations stipulated in the contracts; if violating the agreed stipulations, the violating parties shall bear the responsibility stipulated in the contracts.

Article 17: Mode and principle of resolution of disputes

1. In the course of performance of the contracts, any disputes between the involved parties shall be resolved first of all through negotiation and conciliation.

2. Where the involved parties do not agreed to bring their disputes to an arbitration body for resolution, their disputes shall be resolved at a competent court of law in accordance with the provisions of Vietnamese laws.

3. The transfer of technology from abroad into Vietnam must comply with Vietnamese laws and the international agreements which the Government of the Socialist Republic of Vietnam has signed or acceded to.

4. Where a dispute involves at least one party being a foreign individual, legal person or organization, it shall be resolved at the arbitration body or the court of law agreed upon by the involved parties in their contract. Where the involved parties have no agreement or have reached an agreement which turns out to be invalid, their dispute shall be resolved at a competent court of law in accordance with the provisions of a Vietnamese law.

5. Where arises a dispute involving a third party and related to the right to own or use the technology, the technology transferor shall be, together with the transferee, responsible for arranging the resolution of the dispute; where the technology transfer gives rise to a dispute involving a third party over industrial party rights, the technology transferor shall be responsible for resolving such dispute.

Article 18: Invalid technology transfer contracts

1. Technology transfer contracts shall be deemed invalid when:

a. The transferor signing the contract fails to meet all conditions set in Article 3 of this Decree;

b. The contract is of a type required to be registered but it has no registration certificate or its registration certificate is withdrawn under the provisions of this Decree.

2. A contract shall be deemed partially in valid when one of its contents is in violation of law but this does not affect the other contents of the contract.

Article 19: Legal ramifications of invalid technology transfer contracts

1. For wholly invalid contracts:

a. The parties must not perform the contract, if the contract is not performed yet;

b. The parties must terminate the performance of the contract, if the contract is being performed;

c. A wholly invalid contract shall not give rise to the rights and obligations of the involved parties as from the time of its establishment. If causing damage, the party at fault must pay compensation therefore.

2. For partially invalid contracts :

a. The parties must reach agreement to revise their contract in accordance with the provisions of the Civil Code and this Decree or cancel the part of the contract which is deemed invalid.

b. Where the performance of a partially invalid contract gives rise to legal ramifications like wholly invalid contracts, the provisions of Clause 1 of this Article shall apply.

Article 20: Supplementation, amendment or partial cancellation of technology transfer contracts Technology transfer contracts may be supplemented, amended or partially cancelled when it is so unanimously agreed by the parties.

For technology transfer contracts required to be registered under the provisions of Article 31 of this Decree, the supplementation, amendment or partial cancellation thereof shall become effective only after it is approved by the contract registration-certifying agency in the form of a written certification of additional registration.

Article 21: Termination of technology transfer contracts

1. A contract shall terminate in the following cases :

a. The term stipulated in the contract expires;

b. The contract terminates ahead of time as agreed upon in writing by the parties;

c. Force majeure events occur and the parties agree to terminate the contract;

d. The contract is canceled or suspended by a competent state agency in charge of technology transfer for its violation of law;

e. An affective contract may be canceled as agreed upon in writing by the parties; the parties shall be responsible for damage caused to a third party due to the cancellation.

When canceling their contracts, the parties shall have to notify in writing such to the agency that has certified the registration of the contracts.

f. When one party admits its breach of the contract or its breach of the contract has been concluded by a competent state agency, the party against which the breach is committed may unilaterally stop the performance of such contract.

2. Where a contract terminates under the provisions of Point a, b or , Clause 1 of this Article, its provisions on dispute resolution and complaints shall continue to be valid within the law-prescribed statute of limitations for legal action.

3. Where a contract terminates under the provisions of Point d, e or f, Clause 1 of this Article, the breaching party must pay compensation for damage caused by its breach of the contract, unless otherwise stipulated in the contract.

Article 22: Acceptance and appraisal of technology transfer contracts

1. During the effective term of a contract, annually the transferee shall send a report on the technology transfer result in the year (according to the contracts content) to the agency that has certified the contract.

2. Upon the expiration of the effective term of a contract, the transferor and the transferee must make a report on the appraisal of the result of the performance of the technology transfer contract. Within 30 days as from the date the two parties sign the report, the transfers must send it to the agency that has certified the registration of the contract.

Chapter III

PROVISIONS ON FINANCE RELATED TO TECHNOLOGY TRANSFER

Article 23: Price of transferred technologies

1. For technology transfer contracts under which the transferees do not use state budget capital, development investment credit capital of the state or state-underwritten credit capital, the parties to the contracts shall agree on the price and mode of payment for the technology transfer.

2. For technology transfer contracts under which the transferees use state budget capital, development investment credit capital of the state or state-underwritten credit capital, on the basis of examining and comparing socio-economic benefits of the technological options, the investors must make technology transfer contracts and submit them to the agencies with competence to decide on investment for consideration and decision. The investors and the agencies with competence to decide on investment shall be responsible before law for the technological contents and the payment prices for the technology transfer (the agencies with competence to decide on investment and the investment decision shall comply with the provisions of the Governments Regulation on investment and construction management).

3. For technology transfer contracts under which the transferees use different capital sources which cannot be accounted separately for different items or jobs of the projects, the technology transfer contracts of such enterprises or projects shall be managed under the regulations applicable to the capital source accounting for the biggest percentage (%) in the total investment capital amount of the projects. Where the technology transferee uses state budget capital, development investment credit capital of the state or state-underwritten credit capital in a percentage equal to or bigger than the total percentage of other capital sources, the payment price and mode in the technology transfer contract of the concerned enterprise or project shall comply with the provisions of the Governments Regulation on investment and construction management concerning the sources of state budget capital, development investment credit capital of the state or state-underwritten credit capital.

4. For technology transfer contracts under which the transferees have many capital sources, including state budget capital, development investment credit capital of the state or state-underwritten credit capital for which, as stipulated in the transferees operation charter, annual financial revenue and expenditure settlement and financial plans must be unanimously approved by the Managing Boards, the payment price and mode in such contracts must be unanimously approved by the Managing Boards before registration.

5. The payment price and mode for the transfer of technological contents belonging or attached to industrial property objects permitted to be transferred within the period of protection under Vietnamese laws must comply with the provisions of the technology transfer legislation.

Article 24: Mode of payment for technology transfer

The payment for technology transfer shall be agreed upon by the parties according to the following modes:

1. Incorporating the value of the transferred technology in the contributed capital of the investment projects.

2. Making periodical payments as a percentage of the net selling price or as an amount of money payable for a sold product unit (created from the application of the transferred technology).

3. Making periodical payments as a percentage of net turnover or pre-tax profit.

4. Making payments in a lump sum or in installments in cash or in kind corresponding to the technology transfer progress and in accordance with in Vietnamese laws.

5. Making payments by another mode as agreed upon or by combining the payment modes stated in Clauses 1, 2, 3 and 4 of this Article.

Article 25: Cost-accounting of technology transfer expenses

For contracts on the transfer of technologies from abroad into Vietnam or the domestic transfer of technologies required to be registered under the provisions of this Decree, they shall not become legally effective when their registration is not yet certified by competent state agencies while the transferee must not account expenses for the technology transfer contents into product costs.

Article 26: Technology transfer tax

1. The transferors shall have to pay a tax on the proceeds from technology transfer activities. The technology transfer tax rates shall comply with Vietnams tax laws.

2. Tax preferences for technology transfer shall comply with Vietnams tax laws.

Article 27: Charge for evaluation of technology transfer contracts.

When submitting dossiers of application for registration of technology transfer contracts, the submitters must pay a charge for contract evaluation according to the provisions of law.

Chapter IV

STATE MANAGEMENT OVER TECHNOLOGY TRANSFER

Article 28: Contents of state management over technology transfer

The contents of state management over technology transfer include:

1. Promulgating legal documents on technology transfer, formulating policies and strategies on technology transfer, organizing the guidance and examination of the implementation of these documents.

2. Certifying the registration of technology transfer contracts, stopping, canceling certification of the registration of technology transfer contracts.

3. Managing technology transfer activities.

4. Managing activities of appraising, evaluating and expertising technologies, providing and using technology transfer consultancy services.

5. Building technology export and import policies.

6. Disseminating knowledge about technology transfer; supplying information on technology.

7. Supervising and inspecting activities of technology transfer, technology appraisal, evaluation and expertise, provision and use of technology transfer consultancy services.

8. Setting complaints and denunciations and handling violations of the legislation on technology transfer, technology appraisal, evaluation and expertise, provision and use of technology transfer consultancy services.

9. Providing professional on technology transfer.

10. Organizing international cooperation activities in the above-said domains.

Article 29: Principles for the assignment of State management over technology transfer activities

The Government shall perform uniform State management over technology transfer activities nationwide. The Government shall assign responsibilities to the ministries, ministerial-level agencies, Government-attached agencies and provincial/municipal Peoples Committees to assist the Government in performing the State management functions defined in Article 28 of this Decree.

The assignment of the tasks and powers of State management over technology transfer activities to the ministries, ministerial-level agencies, Government-attached agencies and provincial/municipal Peoples Committees shall be based on the following principles:

1. Raising the technology transfer management role and responsibilities of the ministries, ministerial-level agencies, Government-attached agencies and provincial/municipal Peoples Committees in examining and controlling technology transfer activities and processes in order to ensure that the transferred technologies and imported machinery and equipment of investment projects are advanced and modern and bring about economic efficiency in production and business; in promptly redressing mistakes and preventing consequences causing damage to the property of the State and the people; protecting the health and living environment of the people.

2. Ensuring concentrated and uniform management throughout the country together with reasonable assignment of responsibilities suitable to the specialized professional and technical capacity of each ministry, ministerial-level agency, Government-attached agency and locality. The ministries, ministerial-level agencies, Government-attached agencies and provincial/municipal Peoples Committees shall tale responsibility directly before the Government for the tasks assigned to them for management.

Article 30: Responsibilities of the ministries, ministerial-level agencies, Government-attached agencies and provincial/municipal Peoples Committees

1. Responsibilities of the Science and Technology Ministry :

a. To assist the Government in directing uniform State management over technology transfer and technology appraisal, evaluation and expertise nationwide according to the contents prescribed in Article 28 of this Decree;

b. To perform uniform professional management and guide the implementation of policies and laws on technology appraisal, evaluation and expertise. To assume the prime responsibility for, and coordinate with the ministries, ministerial-level agencies, Government-attached agencies in submitting to the Prime Minister for promulgation a list of technologies for the productions of products related to safety, health, sanitation, environment and national security, for which evaluation or expertise certificates are required;

c. To manage the provision and use of technology transfer consultancy services. To set the conditions for establishment and operation of technology transfer consultancy organizations; submit to Prime Minister for promulgation a Regulation on conditions for establishment and operation of technology evaluation and expertise organizations;

d. To formulate technology transfer policies and strategies, improve the technology transfer management apparatus, and provide professional training in technology transfer;

e. To assume the prime responsibility for, and coordinate with the ministries, ministerial-level agencies, Government-attached agencies and provincial/municipal Peoples Committees in, supervising, controlling, evaluating and reporting on activities of technology transfer, technology appraisal, evaluation and expertise.

The technology management agency under the Science and Technology Ministry is an agency assisting the Science and Technology Minister in performing State management over technology transfer.

2. Responsibilities of the ministries, ministerial-level agencies, Government-attached agencies and provincial/municipal Peoples Committees:

a. Managing activities of technology transfer, technology appraisal, evaluation and expertise, provision and use of technology transfer consultancy services according to their decentralized competence in the domains under their respective management;

To consider and decide on technology transfer contracts of investment projects and bid projects failing under their respective competence to decide on investment, of projects authorized by superior authorities to them for investment approval according to the provisions of the Governments Regulation on investment and construction management.

b. To examine, or coordinate with the concerned functional agencies in examining, the technology transfer, technology appraisal, evaluation and expertise, provision and use of technology transfer consultancy services according to their decentralized competence in the domains under their respective management.

c. The Finance Ministry shall have to assume the prime responsibility for, and coordinate with the Science and Technology Ministry in, promulgating a Regulation on charges for evaluation of technology transfer contracts;

d. In January of each year, the ministers, the heads of the ministerial-level agencies, the heads of the Government-attached agencies and the presidents of the provincial/municipal Peoples Committees shall send reports on the previous years situation of technology transfer, technology appraisal, evaluation and expertise, provision and use of technology transfer consultancy services under their respective management to the Science and Technology Ministry for summing up and submission to the Prime Minister.

Article 31: Registration of technology transfer contracts

1. The following technology transfer contracts must be registered:

a. Contracts on the transfer of technology from abroad into Vietnam;

b. Contracts on the transfer of technology from Vietnam to abroad;

c. Contracts on the domestic transfer of technology valued at VND 500,000,000 or more. For technology transfer contracts valued at under VND 500,000,000, the transferors and the transferees may make voluntary registration so as to enjoy the States preferential policies on technology transfer.

2. The agencies certifying the registration of technology transfer contracts may withdraw technology transfer contract registration certificates if it detects any violations of law

Article 32: Decentralization of the certification of the registration of technology transfer contracts

1. The Science and Technology Ministry shall certify the registration of :

a. Contracts on the transfer of technology from abroad into Vietnam which have a payment value of over VND 1,000,000,000 each;

b. Contracts on the transfer of technology from Vietnam to abroad;

2. The Science and Technology Services of the provinces or centrally-run cities where the technology transferees make registration for business activities shall certify the registration of :

a. Contracts on the transfer of technology from abroad into Vietnam which have a total payment value of VND 1,00,000,000 or less each;

b. Contracts on the domestic transfer of technology valued at VND 500,000,000 or more.

3. The agencies certifying the registration of technology transfer contracts shall have to oversee the performance of the registered technology transfer contracts; if detecting any violations of law, they must propose competent State agencies to handle them according to the provisions of law.

Article 33: Dossiers of registration of technology transfer contracts

A contract registration dossier shall consist of :

1. The application for contract registration, made according to a form set by the Science and Technology Ministry

2. The contract signed and stamped by the involved parties (if the parties are legal persons) and appendices (if any), with every page of both initialed by the involved parties (or sealed, if the parties are legal persons).

3. A written summary of the contents of the transferred technology (or the feasibility study report of the project).

4. Documents:

a. Certifying the legal capacity of the parties to the contract (operating licenses);

b. Certifying the legal capacity of the representatives of the parties to the contract;

c. The title of protection of industrial property rights in Vietnam in case of transfer of the rights to own or use industrial property objects which have been granted the protection titles.

d. The decision of the agency with investment-deciding competence (defined in the Government-promulgated Regulation on investment and construction management) to approve the technology transfer contract (in case of projects using state budget capital, development investment credit capital of the state or credit capital underwritten by the state);

e. The minutes of the transferees Managing Board on the unanimous adoption of the technology transfer contract in cases where the transferee has state capital and its charter provides that its annual budget revenue and expenditure plans must be unanimously adopted by the Managing Board;

f. The appraisal or expertise certificate, for technologies on the list of technological domains which are required have to appraisal or expertise certificates, issued under a decisions of the Prime Minister.

Article 34: Procedures for registration of technology transfer contracts

1. Procedures for contract registration:

a. The dossier of application for contract registration, sent to a competent state management agency within 90 days as from the date the two parties sign the contract;

b. Within 15 working days after receiving complete and valid dossiers, if the competent state management agency has no written request for amendment and/or supplementation, it shall certify the registration of the technology transfer contracts;

c. Working within 15 days after receiving complete and valid dossiers, if the competent state management agency has a written request for amendment and/or supplementation of the dossiers, the parties to the contracts must make amendments and/or supplementation as requested. Within 10 working days after receiving the properly amended and supplemented dossiers, if the competent state agency has no written request for further amendment and/or supplementation, it shall certify the registration of the technology transfer contracts;

d. Within 60 days after receiving the written requests for amendment and/or supplementation of the state management agencies with competence to register contracts, if the parties to the contracts fail to meet such requests, their applications for registration shall become invalid.

2. The procedures for registration of additional contracts shall also comply with the provisions of Clause 2 of this Article.

3. The procedures for registration of contracts on transfer of the rights to own or use industrial property objects shall comply with the provisions of the industrial property legislation.

4. Certificates of registration of contracts shall evidence the lawfulness of the contracts, serving as a basis for enjoying tax preferences on incomes arising from the contracts and as a basis for the transfer of foreign currencies to pay for the technologies purchased from abroad.

Contract registration certificates shall be made according to a form guided by the Science and Technology Ministry.

Article 35: Right to seek professional opinions

In the course of deciding on or registering technology transfer contracts, the ministries, the ministerial-level agencies, the Government-attached agencies or the provincial/municipal Peoples Committees may seek opinions of appraisal and expertise organizations, professional agencies as well as specialists in the relevant professional domains. The consulted appraisal and expertise organizations, professional agencies and/or specialists shall have to give honest and impartial opinions and keep secret relevant information.

Article 36: Complaints and denunciations

Organizations and individuals may lodge complaints about certification of registration, refuse to certify registration or withdrawal of registration of technology transfer contracts; individuals may denounce acts that violate the technology transfer legislation in accordance with the provisions of the Law on Complaints and Denunciations.

Article 37: Handling of administrative violations in the technology transfer domain

The handling of administrative violations in the technology transfer domain shall comply with current provisions of Vietnamese laws.

Chapter V

IMPLEMENTATION PROVISIONS

Article 38: Transitional provisions

1. Technology transfer contracts which have been certified for their registration or approved by competent state management agencies before the effective date of this Decree shall continue to be effective till the expiration of their terms.

2. Dossiers of application for registration or approval of technology transfer contracts which were submitted to competent state management agencies before the effective date of this Decree but have not yet been dealt with shall comply with this Decree.

Article 39: Implementation effect

1. This Decree takes effect 15 days after its publication in the Official Gazette. This Decree replaces the Governments Decree No. 45/1998/ND-CP of July 1, 1998 detailing the technology transfer.

2. The Science and Technology Minister shall have to guide the implementation of this Decree.

3. The ministers, the heads of the ministerial-level agencies, the heads of the Government-attached agencies and the presidents of the provincial/municipal Peoples Committees shall have to implement this Decree.