This decree applies to all companies, credit institutions established in Vietnam (including foreign invested) and Vietnamese individuals.
“Investment offshore” is defined as the remittance of capital overseas by the investor; or the payment in part or in whole of a business establishment by the investor; or the establishment of ownership or title by the investor to carry out business activities outside Vietnam; and at the same time participation by the investor directly in the management of such activity.
The above definition is unclear as to: (i) whether the purchase of shares in a company offshore constitutes an offshore investment or not and if so to what extent; and (ii) whether a specific project has to be identified or not (in the case of share purchase). It is also unclear what constitutes “direct participation in the management” of the project.
Basically, investment offshore will require approval via this issuance of an Investment Certificate (IC). The licence issuing body is not the local Department of Planning & Investment as is the case in respect of investment in Vietnam. Rather, licensing is centralised and the Ministry of Planning & Investment will issue the IC in respect of investment outside Vietnam.
There are different procedures for obtaining the IC and it depends on whether or not the proposed investment activity to be conducted offshore will require the Government or the National Assembly to decide on the investment policy or conditions before an IC may be issued.
The decree also requires the investor to provide evidence of where the project is located in respect of certain types of investment (energy, mining, real estate, for example).
There are also provisions on how remittance of capital can be made offshore and the State Bank of Vietnam has been instructed to provide further detailed guidance. In terms of pre-licensing costs, the decree caps maximum remittance offshore at US$ 300,000.
Decree 83/2015/ND-CP dated 25 September 2015 and valid as of the same date.
DNLegal, 29 October 2015
