We refer with thanks to your from which, you requested us to provide legal advice on amendment of Investment Certificate of your company (Hereinafter referred to as “Client”) to add new business line of implementation of import right and trading right against forklift truck (HS Code No. 84279000) and trucks.
We, therefore, are grateful to present you our Legal Services Proposal for your review and consideration.
1. PRELIMINARILY COMMENT OF S&B LAW
1.1 Business line to be expanded
With the respect to the importation and trading activities of Foreign Invested Company, according to the Item 1, Article No. 4 of Decree No.23/2007/ND-CP dated 12 February 2007 of the Government providing regulation for implementation of commercial law regarding purchase and sale of goods and activities directly related to the purchase and sale of goods by enterprises with foreign owned capital in Vietnam (Hereinafter referred to as “Decree No.23/2007/ND-CP”), foreign investors who satisfy following conditions shall be entitled to license for activities of trading in Vietnam:
– It is an investor belonging to a country or territory participating in an international treaty of which the Socialist Republic of Vietnam is a member and in such treaty Vietnam has undertaken to open the market on activities of purchase and sale of goods and activities directly related to purchase and sale of goods;
– The form of investment is consistent with the schedule/s undertaken in international treaties of which the Socialist Republic of Vietnam is a member and is consistent with the law of Vietnam;
– The goods and services in which business is conducted are consistent with Vietnam’s undertaking to open the market and are consistent with the law of Vietnam;
– The scope of operation is consistent with Vietnam’s undertaking to open the market and is consistent with the law of Vietnam;
– It has approval from the State body authorized in Vietnam.
In addition, under Vietnam WTO’s Commitments, from the year of 2009, foreign investor is entitled to join goods import and trading activities in Vietnam. Singapore has been a member of WTO. Thus, Client is entitled amend its Investment Certificate to include business line of importing and trading forklift truck (HS Code No. 84279000) and trucks in Vietnam.
We also would like to note that, trading goods is considered as conditional investment sector in Vietnam and therefore during applying for amendment of your Investment Certificate, following key factors shall be taken in account:
– Capital:Client must fulfilled capital contribution to the Company already and the business operation result as recorded in the audited financial statement of the recent year must be positive. The competent authority may also require Client to increase the investment capital to expand the business line. Depended on the number of HS Code to be recorded as well as revenue of the Client in last year, the increased amount shall be recommended;
– Client should must have been compliant with Vietnam Law, especially those relating to investment activities in Vietnam.
1.2. Licensing Procedure
We would like to clarify that the procedure for amendment of Investment Certificate in order to obtain license for conditional investment sectors such as importing and trading rights shall be about 45 working days. However, the actual process may take a longer time due to that the competent authority must consult other relevant ministries i.e. Ministry of Industry and Trade, Ministry of Planning and Investment, Ministry of Finance etc. to evaluate the application dossier.
The roadmap for the amendment of Investment Certificate of Client can be described in following steps as follows:
- Preparing the application dossier: We shall collect necessary information and documents from you. Upon receipt of necessary information and documents from you, we shall translate documents from English into Vietnamese and prepare the application dossier under the standard forms. The initial drafted application dossier shall be sent to you for your comments. Then, after updating the application dossier based on your comments, we shall obtain the preliminary comments from the competent authority and send the finalized application dossiers for you to sign and seal. We anticipate that this phase shall be completed within 05 working days. The prepared documents shall then be sent to you for review, signing and seal.
- Submission of application dossier: Within 02 working days from receipt of duly signed and sealed application dossier, we shall submit the application dossier to the competent authority. It shall take about 02 months from submission of application dossier for the provincial licensing authority to grant the Amended Investment Certificate.
- Post licensing: Within 13 working days we shall complete the post licensing procedures such as publishing the amendment of Investment Certificate in News Paper.
Noted: In practice, time schedule of licensing process shall be very much depended on examination process of the relevant competent authorities. Some time, the licensing process can be longer due to it takes time for communication between relevant authorities or change of work schedule of competent authority. In such cases, SBLaw shall do the best to accelerate the licensing process.
