To collect opinions on problematic issues related to Investment Law and Enterprise Law and proposal to amend these laws, the Ministry of Planning and Investment, jointly with the Vietnam Chamber of Commercial and Industry (VCCI), recently held the two seminars named “Roundtable Discussion on Investment Law” and “Roundtable Discussion on Enterprise Law”.
Giving his opinion at the “Proposal to amend Investment Law” seminar, Mr Nguyen Viet Khoa, Director of Business Law Consulting and Training Centre of the Ho Chi Minh City University of Economics, said that it’s time to get rid of the 2005 Investment Law. Giving reasons for his opinion, he said that 2005 Investment Law has several regulations which overlap or contradict some other laws such as Enterprise Law, Land Law and Tax Law. Specifically, investment incentives and policies have been regulated in other legal documents, thus it’s not necessary for them to be on the Investment Law. Regulations on investment procedure should be in accordance with the Enterprise Law to create equality in enterprise registration. “The eliminating of the Investment Law will somehow reform administrative procedures, create consistency on the process of issuing and applying law, create equality for domestic and foreign enterprises making investment in all fields, avoid overlaps between related laws, create open investment environment for investors, specifically for foreign investors,” said Mr Khoa.
Lawyer Tran Thanh Tung of Luat Phuoc & Partners Law Firm said that under the Investment Law, foreign investors investing in Vietnam for the first time must have investment project and follow investment registration procedures or investment examination to be issued investment certificate (Article 46). It means that all foreign investment has to follow investment procedures and in the time of investment, almost all changes must be submitted to adjust the investment certificate. However, this regulation has several limitations because in fact, it is unable to determine investment registration procedure and examination time. In addition, decisions and feedback from related agencies are normally not supported by legal frame; therefore the burden of administrative procedure is on the shoulders of investors. After analysing some regulations on investment procedure for foreign investors taking investment in Vietnam for the first time, which are now facing opposition from investors, lawyer Tran Thanh Tung suggested that Investment Law be changed to investment promoting law, solely focusing on issues like investment policies and investment protection. If maintained, investment certificates will only be the endorsement of state agencies for enterprises meeting investment requirement to be offered investment incentives. Investment certificates will only be given once and not changed when enterprise operations change. Additionally, he also recommended that investment law not be about any issue on enterprise, which means eliminating the norm that investment is bound with the establishment of enterprise or branch because this issue is regulated in Enterprise Law.
Also, experts and enterprises gave several opinions on the changing of Enterprise Law, based basically on the limitations of this law on reality.
Mentioning the limitations on current regulations related to the conversion from a joint-stock company to a single member limited company, Dr Ho Xuan Thang, dean of Law Faculty of Saigon University, proposed that to create favourable conditions for the conversion of company form and the protection of third party’s rights, enterprise law specifically determine time of establishing shareholding right for joint-stock company under Article 154, simultaneously impose punishment for shareholders unable to contribute the capital committed to invest in the joint-stock company fully and timely under the Article 84.
A representative from Medium and Small Enterprise Association of Lam Dong province assumed that 2005 enterprise law established and ensured the legitimate business right of enterprise entity. Nevertheless, there still exist some limitations in the rationality, consistency, transparency and the development synchronization of the law. He also provided an example for his opinion. Specifically, currently, some local authorities regulate that when enterprises apply for investment registration, they will have to wait for the investment planning agencies to submit the proposal to provincial people committee to be able to be granted business registration under the 2005 Enterprise Law. This regulation has posed huge obstacle for enterprises because they have to wait for such a long undefined time, which hinders business activities of those enterprises. Assuming that this regulation is not in the amendment law, the representative from Medium and Small Enterprise Association proposed that this regulation be eliminated (under Article 5 and Article 7) or put into law to make local authorities’ management transparent and consistent.
Mr Nguyen Viet Khoa highly appreciated the considerable contribution of the 2005 enterprise law to Vietnam’s economic development and international integration. However, he assumed that in the next amendment, the Enterprise Law should acknowledge business rights of individual groups as a natural right recognized by the law. To make it efficient and realistic, this amendment must be taken simultaneously with the amendment of specialized law in accordance with basic criteria of Enterprise Law. For this reason, after the amendment of Enterprise Law, the amendment of other specialized law must take place.
To conclude the seminar, Mr Dau Anh Tuan, Representative of Legal Department of VCCI, said that currently the department drafting amendment of Investment Law and Enterprise Law has produced the detailed report on 2005 Investment Law and Enterprise Law. On that basis, combined with opinions from enterprises’ representatives, law experts will submit completed proposal, consulting the roadmap to build new Investment Law in accordance with the current economics of the country as well as international integration trend.
My Chau
Vietnamese
