Question6: Please indicate the cases where the investor has implemented investment procedures in the form of capital contribution, share purchase and capital contribution?
Answer:
According to the Law on Investment and Decree No. 118/2015 / ND-CP dated 12/11/2015 of the Government detailing and guiding the implementation of some articles of the Investment Law, foreign investor shall carry out investment procedures through capital contribution, purchase of shares in following cases:
a) The investor contributes capital, buy shares or capital contributions of business organizations engaged in business lines subject to conditions applied to foreign investors.
b) The capital contribution or purchase of shares that leads to a foreign investor or business organization specified in Point a, Point b, and Point c Clause 1 Article 23 of the Investment Law holds 51% of charter capital of the business organization or more in the following cases: The charter capital held by the foreign investor is increased to 51% or over and the charter capital held by the foreign investor is increased while such foreign investor is holding 51% charter capital of the business organization or more.
Clause 1, Article 23 of the Investment Law states: ". When establishing business organizations, contributing capital, buying shares or capital contributions of business organizations; making investments under business cooperation contracts in one of the following cases, the foreign investor must satisfy the conditions and follow investment procedures applied to foreign investors:
a) 51% of charter capital or more is held by foreign investors, or the majority of the general partners are foreigners if the business organization is a partnership;
b) 51% of charter capital or more is held by the business organizations mentioned in Point a of this Clause;
c) 51% of charter capital or more is held foreign investors and the business organizations mentioned in Point a of this Clause”.
Question7: Please indicate the dossier on investment through capital contribution, purchase of shares of foreign investors?
Answer:
According to Decree No. 118/2015 / ND-CP dated 12/11/2015 of the Government detailing and guiding the implementation of some articles of the Investment Law,dossier on investment through capital contribution, purchase of shares includes:
a) A written for registration of capital contribution or purchase of shares/capital contributions, which specify information about the business organization to which investment is made; the holding of the foreign investor after making investment;
b) A copy of the ID card or passport (if the investor is an individual); a copy of the Certificate of establishment or an equivalent paper that certifies the legal status of the investor (if the investor is an organization).
Question 8: Please guide the procedures for implementing investment in the form of capital contribution, share purchase, capital contribution?
Answer:
The procedure for implementing investment in the form of capital contribution, share purchase, capital contribution is conducted by the following steps:
a) The investor shall submit 01 application for registration of capital contribution or purchase of shares to the Department of Planning and Investment of the province where the business organization’s headquarters is located;
b) Within 15 days from the receipt of the valid application as set out in Point a of this Clause, the Department of Planning and Investment shall assess the foreign investor’s fulfillment of investment conditions and send a notification to the investor;
c) After receiving the notification specified in Point b of this Clause, the business organization invested by the foreign investor through capital contribution or purchase of shares/stakes shall follow procedures for registration of change of members/shareholders at a business registration authority in accordance with regulations of law on enterprises and other regulations of law relevant to its type of business entity.
Question 9: I am a foreign investor who intends to invest in Company A to do business with no conditions for foreign investors. Please answer if I invest in Company A but do not increase the ownership of foreign investors, do I have to do the procedures for implementing investment in the form of capital contribution, share purchase, capital contribution?
Answer:
According to the Law on Investment and Decree No. 118/2015 / ND-CP dated 12/11/2015 of the Government detailing and guiding the implementation of some articles of the Investment Law, foreign investor shall carry out investment procedures through capital contribution, purchase of shares in following cases:
a)The investor contributes capital, buy shares or capital contributions of business organizations engaged in business lines subject to conditions applied to foreign investors.
b)The capital contribution or purchase of shares that leads to a foreign investor or business organization specified in Point a, Point b, and Point c Clause 1 Article 23 of the Investment Law holds 51% of charter capital of the business organization or more in the following cases: The charter capital held by the foreign investor is increased to 51% or over and the charter capital held by the foreign investor is increased while such foreign investor is holding 51% charter capital of the business organization or more.
As a result, in case an enterprise conducting a business lines that does not have conditions for a foreign investor and also does not increase the ownership on charter capital of foreign member or shareholder in the company, the foreign investor shall not have to carry out investment procedures through capital contribution, purchase of shares at the Department of Planning and Investment when making additional contribution of charter capital and/or change of members and foreign shareholders..
Question 10: I am a Japanese investor who intends to invest in company A (limited liability) to do business with no conditions for foreign investors. Please answer if I receive a transfer of capital contribution of a Japanese member, do I have to do the procedures for implementing investment in the form of capital contribution, share purchase, capital contribution?
Answer:
According to the Law on Investment and Decree No. 118/2015 / ND-CP dated 12/11/2015 of the Government detailing and guiding the implementation of some articles of the Investment Law, foreign investor shall carry out investment procedures through capital contribution, purchase of shares in following cases:
a)The investor contributes capital, buy shares or capital contributions of business organizations engaged in business lines subject to conditions applied to foreign investors.
b)The capital contribution or purchase of shares that leads to a foreign investor or business organization specified in Point a, Point b, and Point c Clause 1 Article 23 of the Investment Law holds 51% of charter capital of the business organization or more in the following cases: The charter capital held by the foreign investor is increased to 51% or over and the charter capital held by the foreign investor is increased while such foreign investor is holding 51% charter capital of the business organization or more.
As a result, in case of changing members or shareholders that have the same nationality in enterprises conducting business lines that does not have conditions for a foreign investor, the investor shall carry out procedures for registration of membership change at Business Registration Office and shall not have to carry out investment procedures through capital contribution, purchase of shares at the Department of Planning and Investment.
Hoang Thanh Tuan
Source: Agency for Business Registration