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| THE GOVERNMENT | SOCIALIST REPUBLIC OF VIET NAM |
| No. 62/1998/ND-CP | Hanoi, August 15, 1998 |
THE GOVERNMENT
Pursuant to the Law on Organization of the Government of September 30, 1992;
Pursuant to the Law on Foreign Investment in Vietnam passed on November 12, 1996 by the National Assembly;
In order to encourage the investment in construction and development of infrastructure projects in Vietnam;
At the proposal of the Minister of Planning and Investment,
DECREES:
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ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai
(Issued together with Decree No.62/1998/ND-CP of August 15, 1998 of the Government)
Article 1.- In this Regulation, the following terms shall be understood as follows:
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2. "Build-transfer-operate contract" (or BTO in abbreviation) is a document signed between a Vietnamese competent State agency and a foreign investor to build an infrastructure project (including expansion, upgrading and/or modernization of an existing project); and upon the completion of the construction, the foreign investor shall transfer such project to the Vietnamese State; the Vietnamese Government shall give the foreign investor the right to do business with such project for a certain duration in order to retrieve investment capital and earn reasonable profits.
3. "Build-transfer contract" (or BT in abbreviation) is a document signed between a Vietnamese competent State agency and a foreign investor to build an infrastructure project (including expansion, upgrading and/or modernization of an existing project); upon the completion of the construction, the foreign investor shall transfer such project to the Vietnamese State and the Vietnamese Government shall create conditions for the foreign investor to implement another project to retrieve investment capital and earn reasonable profits.
4. "BOT enterprises", "BTO enterprises", "BT enterprises" (hereafter collectively referred to as BOT enterprises) are joint venture enterprises or enterprises with 100% of foreign investment capital, established under the provisions of the Law on Foreign Investment in Vietnam to execute BOT, BTO and/or BT contracts.
5. "State agencies competent to sign BOT, BTO and/or BT contracts" (hereafter referred to as the competent State agencies) are ministries, agencies attached to the Government or People's Committees of provinces or centrally-run cities designated by the Prime Minister to sign and execute BOT, BTO and/or BT contracts with foreign investors.
6. "Foreign investors signing BOT, BTO and/or BT contracts" are foreign organizations and/or individuals that execute BOT, BTO and/or BT projects (hereafter referred to as the foreign investors) and take full responsibility for their commitments made in the BOT, BTO and/or BT contracts.
7. "Subcontractors" are Vietnamese or foreign contractors who sign contract with BOT enterprises to participate in the execution of part of a BOT, BTO or BT project.
8. "Subcontract" is a contract signed between a BOT enterprise and a subcontractor, whereby the latter participates in the execution of a part of a BOT, BTO or BT project.
9. "Another project" is a project associated with a BT project and to be executed by a licensed foreign investor under the Law on Foreign Investment in Vietnam in order to retrieve the capital already invested in the BT project.
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2. The Vietnamese Government protects the ownership over the investment capital and other legitimate interests of foreign organizations and individuals that make investment in forms of BOT, BTO and/or BT contracts in Vietnam; and at the same time, creates favorable conditions, including simpler and quicker procedures, for the execution of such projects.
3. The Vietnamese Government gives preferential treatment to BOT enterprises and subcontractors as stipulated in Chapter II of this Regulation.
1. To execute BOT, BTO and/or BT projects, foreign investors shall establish BOT enterprises.
2. BOT enterprises shall be established and operate from the date they are granted investment licenses; have to abide by the stipulations in their investment licenses as well as the foreign investors' commitments under BOT, BTO or BT contracts.
THE INVESTMENT PREFERENCES AND GUARANTY
1. The taxes applicable to BOT enterprises are prescribed as follows:
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The profit tax shall be exempted for the first four years starting from the date the business operation generates profits and reduced by 50% for four subsequent years. In cases where the investment is made in geographical areas where investment is encouraged, the profit tax shall be exempted for eight years starting from the date the business operation generates profits.
The duration of tax exemption and/or reduction shall be continuously calculated from the first year of profitable business operation.
- The applicable rate of tax on profit remitted abroad shall be equal to 5% of the profit amount remitted abroad.
- In addition to the above-said taxes, BOT enterprises shall also have to pay other taxes as prescribed by the Vietnamese law.
2. Foreign subcontractors participating in BOT, BTO and/or BT projects shall pay taxes and enjoy tax exemption and/or reduction in accordance with to the current regulations applicable to foreign contractors.
Vietnamese subcontractors participating in BOT, BTO and/or BT projects shall fulfill their tax obligations in accordance with the current regulations applicable to Vietnamese enterprises.
- Equipment and machinery imported to form the fixed assets (including equipment, machinery and spare parts to be used in the survey, designing and construction of projects);
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- Components, details, knocked down parts, spare parts, assembly parts, molds, prototypes and auxiliary parts accompanying equipment, machinery, specialized transport means, conveyance means as mentioned above, including the cases where they are used for replacement, warranty and/or maintenance during the process of operating the projects;
- Fuels, raw materials and materials imported for the execution BOT, BTO and/or BT projects, including those in service of the production and operation of projects.
2. The import tax exemption for equipment, machinery, transport means, raw materials and materials mentioned in Clause 1 of this Article shall be applicable also to the project expansion and the technological replacement or renewal.
3. Import goods mentioned in Clauses 1 and 2 of this Article must not be sold on the Vietnamese market. In cases where they are sold on the Vietnamese market, permissions from the Ministry of Trade are required and import tax, turnover tax or special consumption tax thereon must be paid in accordance with the provisions of Vietnamese law.
4. For other projects executed in association with BT contracts, the importation and payment of import tax shall comply with the provisions of Article 63 of Decree No.12-CP of February 18, 1997 of the Government detailing the implementation of the Law on Foreign Investment in Vietnam and Article 10 of Decree No.10/1998/ND-CP of January 23, 1998 of the Government on a number of measures to encourage and guarantee foreign direct investment in Vietnam.
5. Industrial property objects which are in the protection duration, technical knowhows, technological processes and technical services for the execution of projects shall be exempt from taxes related to technology transfer.
2. A capital transfer shall be effective only after it is approved by the competent State agency and the capital transfer contract is approved by the investment license granting agency.
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2. The State Bank of Vietnam ensures that BOT enterprises shall be entitled to convert their Vietnamese currency amounts earned from the execution of the BOT, BTO, BT and other projects into foreign currency(ies), to meet their business operation requirements, pay principals and interests of borrowings or remit profits and capital abroad.
BOT enterprises are entitled to use their lawful incomes in Vietnamese currency from the execution of the BOT, BTO and/or BT projects to buy goods for export or for processing before directly exporting them in accordance with the regulations of the Ministry of Trade in order to create sources of foreign currency(ies) to meet their business operation requirements.
a) Equipment, workshops, architectural works and immovable assets procured and/or built with their own investment capital;
b) Other property under the ownership of the BOT enterprises;
c) The land use right value as stipulated by Vietnamese law;
d) The property rights of the BOT enterprises.
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3. Pledges and mortgages must be made in writing in accordance with provisions of Vietnamese law and the copies thereof must be submitted to the competent State agency(ies).
2. BOT enterprises are exempt from land rent during the period of project execution.
3. The People's Committees of the provinces and cities directly under the Central Government where investment projects are executed shall have to organize the site clearance and compensation therefor, and complete the procedures for assigning land to the BOT enterprises in accordance with provisions of law and within the agreed time limit.
The expenses for site clearance and compensation therefor shall be paid by the foreign investors and accounted into their in total investment capital, unless otherwise provided for in the BOT, BTO and BT contracts.
2. In cases of necessity and depending on the nature of the projects, the Vietnamese Government may authorize competent State agency(ies) to represent the Government in guaranteeing the fulfillment of financial obligations committed by Vietnamese enterprises participating in the execution of projects as defined in BOT, BTO and/or BT contracts; and guarantee the obligations of Vietnamese enterprises in the sale of raw materials and purchase of main products and services for the execution of BOT, BTO and BT projects.
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THE MODES OF EXECUTION OF BOT, BTO AND BT PROJECTS
2. The Prime Minister may also approve BOT, BTO and/or BT projects outside the publicized lists after consulting the concerned ministries, branches and People's Committees of the provinces and cities directly under the Central Government where the projects are expected to be executed.
3. The investment projects under BOT, BTO or BT contracts submitted to the Prime Minister as mentioned in Clauses 1 and 2 of this Article must clearly state their necessity, locations, designed capacities and projected investment capital; and propose to the competent State agency the mode of selecting foreign investors to sign BOT, BTO or BT contracts.
The expenses for elaboration of pre-feasibility studies funded by the competent State agency(ies) shall be approved in accordance with regulations. If a project is executed, the expenses for elaboration of its pre-feasibility study shall be accounted into the project's investment capital and the BOT enterprise shall have to reimburse such expenses to the State budget.
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2. The results of the selection of foreign investors to sign BOT, BTO and/or BT contracts must be approved by the Prime Minister.
2. The competent State agency(ies) shall assume the prime responsibility and coordinate with the concerned ministries, branches and People's Committees of the provinces and cities directly under the Central Government in examining and approving the feasibility studies. In cases where exist the divergence of opinions or matters beyond its/their competence, the competent State agency(ies) shall refer them to the Prime Minister for decision.
2. The draft BOT, BTO and/or BT contracts, after being negotiated, agreed upon and initialed by the concerned parties, shall be submitted to the Ministry of Planning and Investment together with other documents relating to the application for investment licenses, for being evaluated, then submitted to the Prime Minister for consideration and approval. The BOT, BTO and/or BT contracts shall be officially signed only after they are approved by the Prime Minister.
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1. A dossier of application for investment license shall comprise:
- The investment application;
- The initialed BOT, BTO or BT contract;
- The joint venture contract (in case of a BOT joint venture enterprise);
- The statute of the BOT enterprise;
- The feasibility study report;
- The initialed contract or preliminary agreement on the purchase of raw materials and sale of products (if any);
- The documents certifying the legal status and financial status of the investor.
2. Particularly for a BT project, in addition to the above-said documents, the dossiers on other project(s) should be enclosed therewith according to the current regulations.
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2. An investment license shall include the following principal contents:
- The major terms of the contract;
- The size of investment capital, objectives and operation duration of the project;
- The designing and technical requirements, the state and conditions for normal operation of the project when it is transferred to the Vietnamese State;
- The tax and financial obligations;
- The right to use land and support facilities;
- The conditions for environmental protection;
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- The regulations on conversion of Vietnamese currency into foreign currency(ies);
- The export and/or import of equipment, machinery and commodities;
- The right and conditions for dealing in BOT and/or BTO projects; the dealing in other projects as the result of the execution of BT projects;
- The principles for determining value of assets when they are transferred;
- The commitments made by the Government and the concerned State agencies.
1. BOT enterprises shall make technical designs then submit them to the competent State agency(ies).
The competent State agency(ies) shall assume the prime responsibility and coordinate with the Ministry of Construction, the concerned ministries, branches and People's Committees of the provinces and cities directly under the Central Government in evaluating the technical designs before executing them.
After the technical designs of the projects are approved, the BOT enterprises can start the construction of the projects.
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3. The subcontractors, after signing subcontracts with the BOT enterprises, shall have to register their operations with the competent State agencies.
2. The increase of prices, fees and other charges must be agreed upon and stipulated in BOT and BTO contracts. The readjustment of prices, fees and other charges must be announced to the competent State agencies 30 days in advance.
The readjustment of prices, fees and other charges beyond the scope projected and agreed upon in the contracts must be approved by the competent State agencies before its implementation.
2. Upon the expiry of the commercial operation time limit of BOT projects, foreign investors shall transfer without any indemnity such projects to the Vietnamese State. For BTO and BT projects, upon the completion of their construction, the foreign investors shall transfer them to the State of Vietnam according to the conditions stipulated in the BTO and BT contracts.
3. The competent State agencies shall receive the transfer of BOT, BTO and BT projects in accordance with the provisions in Articles 22 and 23 of this Regulation.
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- The state of the project when being transferred;
- The list of transferred assets, including documents relating to the survey, designing, construction, installation, operation, maintenance and management of the project;
- Documents on the examination of the value and quality of the transferred project;
- The responsibilities of the parties for the continued operation of the transferred project;
- The duration and conditions for maintenance and warranty of the project after it is transferred;
- The contracts and other necessary conditions for the maintenance and operation of the project after it is transferred.
The competent State agencies shall only accept the project hand-overs under the conditions already specified in BOT, BTO or BT contracts and investment licenses.
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1.A BOT, BTO or BT contract must include the following principal contents:
- The nationalities, addresses and authorized representatives of the parties signing the contract;
- The operation objectives and scope;
- The investment capital and execution schedule;
- The capacity, technology and equipment, designing requirements and technical standards of the project; the quality standards and supervision and inspection of the project's quality;
- The regulations on environmental protection;
- The conditions for land use, infrastructure projects, support facilities necessary for the construction and operation of the project;
- The project construction schedule, the operation duration of the BOT enterprise and the time of transfer of the project;
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- The stipulations on prices, fees and other charges;
- The obligation to maintain the normal operation of the project;
- The consultancy, evaluation of designs, equipment, construction, test upon completion, operation and maintenance;
- The technical conditions, operational state and quality of the project when it is transferred. The principles for determining the value of the project and the procedure for the transfer thereof;
- The validity of the contract and the cases of termination of the contract ahead of time, the stipulations on assignment of the contract;
- The agency(ies) which settles disputes between the parties signing the contract and the modes of settlement; the risk sharing between the BOT enterprise and the Government agency;
- The handling of violations committed by the parties that lead to the non-fulfillment of the terms of the contract;
- The cases of force majeure and handling principles;
- The stipulations on the support and commitment by the Government agencies;
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2. To execute BOT, BTO and/or BT projects, the BOT enterprises shall be entitled to sign contracts for land use, construction, installation of machinery and equipment, consultancy and expertise services, purchase of raw materials and sale of products, main services, provision of technical services, capital borrowing, pledge or mortgage of property and other contracts as prescribed by Vietnamese law.
3. In cases where Vietnamese laws do not contain provisions governing the relations relating to the investment in forms of BOT, BTO and/or BT contracts, the parties may agree in their contracts on the application of foreign laws, provided that such agreements are not contrary to the provisions of Vietnamese law.
2. The disputes arising among the parties in a BOT enterprise in the course of executing the contracts shall be settled in accordance with Clause 1, Article 102 of Decree No.12-CP of February 18, 1997 of the Government detailing the implementation of the Law on Foreign Investment in Vietnam.
3. The disputes arising between BOT enterprises and foreign organizations or individuals in the course of executing their contracts shall be first of all settled through negotiation and/or conciliation. If the disputing parties fail at such negotiation and/or conciliation, they may agree to have their disputes settled by a Vietnamese arbitration organization or an arbitration council to be set up upon their mutual agreement or an arbitration established and operating in a third country.
The disputes arising between BOT enterprises and Vietnamese economic organizations in the course of executing their contracts shall be settled in accordance with Clause 2, Article 102 of Decree No.12-CP of February 18, 1997 of the Prime Minister detailing the implementation of the Law on Foreign Investment in Vietnam.
4. The enforcement of arbitration awards shall comply with the provisions of Vietnamese laws and international treaties which Vietnam has signed or acceded to.
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Article 26.- The powers of the competent State agencies:
- To determine the economic-technical criteria of projects; and assume the prime responsibility for organizing the examination and adoption of pre-feasibility studies and feasibility studies;
- To negotiate, agree upon and decide the contents of BOT, BTO and/or BT contracts;
- To assume the prime responsibility and coordinate with the Ministry of Construction, the concerned ministries, branches and People's Committees of provinces and cities directly under the Central Government in examining and evaluating the technical designs of projects;
- To organize the construction supervision and take part in the expertise inspection of the quality of the projects during the construction period;
- To approve the contracts for purchase of raw materials and sale of main products and services, signed between BOT enterprises and Vietnamese specialized economic organizations in cases where the above-said contracts need to be guaranteed as stipulated in Clause 2, Article 10 of this Regulation;
- To supervise the contractual parties in fulfilling obligations they have committed to in BOT, BTO and/or BT contracts and subcontracts;
- To receive the transfer of the projects as stipulated.
Article 27.- The responsibilities of the competent State agencies:
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- To support BOT enterprises in completing the procedures in preparation for investment, construction and business (if any) in strict accordance with BOT, BTO and/or BT contracts and subcontracts;
- To assume the prime responsibility or coordinate with other State agencies in studying and settling lawful requirements of BOT enterprises in the course of executing BOT, BTO and/or BT projects;
- To fulfill the obligations committed to in BOT, BTO and BT contracts;
- To fulfill other obligations related to the management of operation of BOT, BTO and BT projects in accordance with provisions of law.
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ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai
- 1Decree No. 87-CP of November 23, 1993, on investments in the form of build-operate-transfer contracts.
- 2Decree No. 78/2007/ND-CP of May 11, 2007, on investment in the form of build-operate-transfer, build-transfer-operate or build-transfer contracts.
- 3Decree No. 78/2007/ND-CP of May 11, 2007, on investment in the form of build-operate-transfer, build-transfer-operate or build-transfer contracts.
Decree of Government No. 62/1998/ND-CP, promulgating the regulation on investment in forms of build-operate-transfer con-tracts, build-transfer-operate contracts and build-transfer contracts applicable to foreign investment in Vietnam
- Số hiệu: 62/1998/ND-CP
- Loại văn bản: Nghị định
- Ngày ban hành: 15/08/1998
- Nơi ban hành: Chính phủ
- Người ký: Phan Văn Khải
- Ngày công báo: Đang cập nhật
- Số công báo: Đang cập nhật
- Ngày hiệu lực: Kiểm tra
- Tình trạng hiệu lực: Kiểm tra