Originally published 3 June 2010
Keywords: resolution draft, Ministry of Planning, Vietnam, National Assembly, NA, investment projects
A resolution drafted by the Ministry of Planning and Investment on projects or works of national importance in Vietnam (Resolution Draft) is being submitted to the National Assembly (NA) for approval. Under the Investment Law, a project of national importance is entitled to investment incentives if falls under the incentive investment sectors and/or the geographical areas of investment incentives (Articles 27 and 28).
A project or work of national importance in Vietnam means an investment project, an independent work or a combination of closely interlinked works satisfying the criteria specified below.
The Resolution Draft sets out the criteria of projects and works of national importance as well as the order, procedures and contents of dossiers of projects and works to be submitted by the Government to the NA for consideration and decision on their investment.
Criteria of Projects and Works of National Importance
An investment project which satisfies one of the following five criteria will be regarded as a project or work of national importance:
- Project having the total investment capital of VND 35 trillion
(about USD 1.8 billion) or more (at prices current in June 2010),
with 30% or more of such capital funded from the State
A project or work submitted after the promulgation of the Resolution will be subject to conversion of investment capital into the time of June 2010 at the ratio of inflation. The ratio of inflation will be determined in the Government's guidelines.
- Project or work dramatically affecting or posing a serious potential risk to the environment, including:
- Nuclear power plants;
- Land-using investment projects requiring change of the use
- Special-use forest land of 200 hectares or more (including national parks, nature conservation zones, landscape protective zones, scientific research and experimentation forests;
- Headwater protective forest land of 200 hectares or more;
- Wave-breaking or sea-encroaching protective forest land of 500 hectares or more;
- Production forest land of 1,000 hectares or more, except for
projects of forestation and rubber planting on production forest
- Project involving displacement and resettlement of 20,000 residents or more in mountainous areas or 50,000 residents or more in other areas;
- Project taking place in a special important area for national defense and security, in an area having a national monument of specially important value in history and culture, or in a national scenic place;
- Project requiring application of a special regime and policy to be decided by the NA.
Contents of a Project of National Importance
The dossier of a project or work of national importance to be submitted by the Government to the NA comprises:
- The Government's report;
- The pre-feasibility report (investment report);
- The State Evaluation Council's report;
- Other relevant documents.
Procedures for Verification and Approval by the NA of the Government's Dossiers
The Government's dossiers of projects or works of national importance must be verified by the concerned NA agencies. The verification procedures and scope are as follows:
- At least forty-five days prior to the opening of an NA session, the Government will send dossiers to the verifying agencies for verification;
- The verifying agencies may request investors, project-formulating agencies and project-evaluating agencies to report on matters related to projects or works of national importance; conduct by themselves or together with investors and project-formulating agencies field surveys of matters related to projects or works of national importance. Agencies, organisations or individuals will, at the request of the verifying agencies, supply information or documents in service of the verification of projects or works of national importance;
- The verifying agencies are to verify the following points:
- Necessity of the investment;
- Conformity with socio-economic development planning, branch or domain development planning; land and natural-resource use planning and plans on population relocation and production stabilisation resettlement;
- Observance of the provisions of law;
- Satisfaction of the criteria of projects or works of national importance;
- Basic parameters of projects or works, including investment scale and form; location; land area to be used; time and progress of execution; technological options; environmental protection solutions; capital sources, capital retrieval and loan repayment capability; and
- Socio-economic benefits at the pre-feasibility report level.
The Government will submit projects or works of national importance to the NA for consideration and decision on their investment after obtaining the verification opinions of the concerned NA agencies and after reporting them to the NA Standing Committee.
The NA will consider and approve a resolution on investment in each project or work of national importance. Such resolution is to clearly state the scale of investment and total investment capital, main technologies, location, time and progress of execution of the project or work and applicable particular mechanisms and policies (if any).
Basing itself on the NA's resolutions on projects or works of national importance, the Government will organise the implementation of the same.
Annually or when requested by the NA, the Government will report to the NA on the execution of projects or works of national importance. In the case of changes in the objectives, increasing investment capital by more than 20% or prolongation of the execution duration of such projects or works for no less than one year, the Government must report them to the NA at the nearest session for consideration and decision.
Effect of the Resolution
Once adopted at the NA, the Draft Resolution will replace Resolution No. 66/2006/QH11 dated 29 June 2006 on the standards of works of national importance to be submitted to the NA for decision on their investment.
Projects and works of national importance already decided by the NA will continue to be executed.
The Government will provide detailed guidelines on the implementation of the Resolution.
Visit us at www.mayerbrownjsm.com
Copyright 2010. JSM, Mayer Brown International LLP and/or Mayer Brown LLP. All rights reserved. Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: JSM, a Hong Kong partnership, and its associated entities in Asia; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; and Mayer Brown LLP, a limited liability partnership established in the United States. The Mayer Brown Practices are known as Mayer Brown JSM in Asia.
This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.