1. What is investment policy adjustment?

Investment decisions are the responsibility of competent authorities and focus on important aspects of programs and projects. This is the basis for determining, presenting and approving investment decisions for programs or projects, as well as approving feasibility study reports related to public investment.

The Public Investment Law regulates the adjustment of investment decisions in Article 34, and this is specified in Article 11 of Decree 40/2020/ND-CP dated April 6, 2020.

According to Article 41 of the Investment Law 2020, during project implementation, investors are allowed to adjust goals, transfer or most of the project, merge or subdivide the project, and use land and assets in the project. project to participate in establishing a business, business cooperation or other activities.

In addition, Clause 3 of Article 41 of the Investment Law 2020 mentions that investors whose projects have been approved for investment decisions need to comply with the adjustment approval procedure if they encounter the following cases:

- Change or supplement the goals identified in the initial decision;

- Change in land use area by more than 10% or more than 30 hectares, or change investment location;

- Adjusted total investment capital to increase by over 20%, affecting the scale of the project;

- Extend project implementation time beyond 12 months compared to the initially approved time;

- Adjust project operating time;

- Technology changes approved during the initial process;

- Change of investor or related conditions before the project is operated or exploited.

2. Regulations on authority to issue decisions to adjust investment policies

Article 34 of the Law on Public Investment 2019 stipulates the level of authority in deciding investment policies for programs and projects and is responsible for adjusting that decision and taking responsibility for their decisions.

In the case of transitional projects whose investment policies have been decided by the Provincial People's Committee according to the provisions of the 2014 Public Investment Law and have been adjusted according to Law No. 28/2018/QH14, they are currently within the scope of policy adjustment. according to the Law on Public Investment 2019. However, the Provincial People's Council has not assigned the Provincial People's Committee the authority to approve the project investment policy according to Clause 7, Article 17 of the Public Investment Law 2019. In this situation, the Provincial People's Committee can adjust the decision. Determine investment policy according to regulations or not? If so, which level will have the authority to decide to adjust investment policies, including adjusting the total investment capital to exceed the previous decision of the competent level?

The 2019 Public Investment Law does not provide specific guidance on adjusting investment policy decisions and investment decisions for projects that have been approved by competent authorities according to investment policies and investment decisions. The provisions of the 2014 Public Investment Law have been amended and supplemented accordinglyLaw No. 28/2018/QH14 and has been included in the public investment plan according to the 2016-2020 cycle.

Therefore, the adjustment of investment policy decisions and investment decisions for these projects will comply with the 2019 Public Investment Law.

According to the provisions of Clause 1, Article 34 of the Law on Public Investment 2019, the competent authority in deciding on investment policies for programs and projects will make adjustments to investment policies.

Projects under Section 3 have had their investment policies decided by the Provincial People's Committee according to the 2014 Public Investment Law, therefore, unless the 2019 Public Investment Law has other provisions, the Provincial People's Committee will continue to retain the authority to adjust the investment policy. their investment.

However, according to Article 17 of the 2019 Law on Public Investment, from January 1, 2020, the authority to decide on investment policies of these projects has transferred from the Provincial People's Committee to the Provincial People's Council. Therefore, the Provincial People's Committee needs to report to the Provincial People's Council to be assigned the authority to adjust policies for these projects according to the provisions of Clause 7, Article 17 of the 2019 Public Investment Law.

The issue of adjusting the total investment of programs and projects, especially when this exceeds the initial decision, is not clearly regulated by the 2019 Public Investment Law. Therefore, the investment policy adjustment for these projects will comply with the provisions of Article 34 of the 2019 Public Investment Law.

3. Procedures for adjusting investment projects

3.1. Adjusting investment projects falls under the Prime Minister's investment policy approval authority

Procedures for adjusting investment projects, within the scope of the Prime Minister's authority to approve investment policies, are specified in Article 44 of Decree No. 31/2021/ND-CP with the following requirements:

Profile components: Investors need to submit 08 sets of documents, including:

(1) Document requesting adjustment of investment project.

(2) Report on the progress of investment project implementation until the time of adjustment.

(3) Decision on adjusting investment projects (for organizations acting as investors).

(4) Documents related to the adjustment (if any), including:

- Documents on the investor's legal status.

- Proof of the investor's financial capacity (including the most recent 02 years of financial statements, commitment to financial support from the parent company or financial institution, guarantee of financial capacity or other documents). other proof of financial capacity).

- Copy of documents on land use rights or documents determining the right to use the location for the project.

- Explanation of technology used in the project (for projects related to technology appraisal).

- BCC contract (for projects under BCC contract).

- Other documents related to the project, conditions and capacity requirements of the investor (if any).

Recipients: Ministry of Planning and Investment.

Resolution deadline:Within 40 working days from the date the investor submits a valid application, the Prime Minister will issue a decision approving the investment policy adjustment.

3.2. Adjusting investment projects falls under the investment policy approval authority of the Provincial People's Committee

The process of adjusting investment projects, under the investment policy approval authority of the Provincial People's Committee, is specified in Article 45 of Decree No. 31/2021/ND-CP as follows:

Profile components: Investors need to submit 04 sets of documents including documents (1), (2), (3), and (4), similar to the process of adjusting investment projects under the authority to approve investment policies. Prime Minister's advice has been mentioned above.

Recipients:Department of Planning and investment.

Resolution deadline:Within 32 working days from the date the investor submits a valid application, the Provincial People's Committee will issue a decision approving the investment policy adjustment.

3.3. Adjusting investment projects under the investment policy approval authority of the Management Board of industrial parks, export processing zones, high-tech parks, and economic zones

The process of adjusting investment projects, within the scope of authority to approve investment policies of the Management Board of industrial parks, export processing zones, high-tech zones, and economic zones, is specified in Article 46 of the Decree. No. 31/2021/ND-CP as follows:

Profile components:Investors need to submit 04 sets of documents including documents (1), (2), (3), and (4), similar to procedures for adjusting investment projects within the scope of owner's approval authority. investment policy of the Prime Minister as stated above.

Recipients: Management board of industrial parks, export processing zones, high-tech zones, and economic zones.

Resolution deadline: Within 25 days from the date of receiving valid documents, the Management Board of industrial parks, export processing zones, high-tech zones, and economic zones will issue a decision approving the investment policy adjustment.

Note:Investment projects have a policy of not adjusting their implementation schedule more than 24 months compared to the initially prescribed schedule, unless one of the following conditions is met:

- To overcome consequences in cases of force majeure according to the provisions of civil and land law.

- Adjustment of progress due to investors being slow to be allocated land, leased land or allowed to change land use purpose by the State.

- Adjust progress at the request of management agencies or state agencies that are slow in implementing administrative procedures.

- Adjustments due to changes in planning by state agencies.

- Change the prescribed goals or add goals according to the investment policy decision.

- Increase total investment capital by 20% or more, leading to a change in the scale of the investment project.