DECREE No DECREE No. 10/1998/ND-CP OF JANUARY 23, 1998 ON A NUMBER OF MEASURES TO ENCOURAGE AND GUARANTEE FOREIGN DIRECT INVESTMENT ACTIVITIES IN VIETNAM THE GOVERNMENT Pursuant to the Law on Organization of the Government of September 30, 1992; Pursuant to the Law on Foreign Investment in Vietnam of November 12, 1996; In order to encourage and create a favorable environment for the attraction of foreign direct investment capital and to enhance the effectiveness of foreign investment activities; At the proposal of the Minister of Planning and Investment, DECREES: Chapter I GENERAL PROVISIONS Article 1.- 1. The Government of Vietnam guarantees to implement a persistent and long-term policy on foreign direct investment in Vietnam; and, at the same time, to amend and supplement the foreign direct investment policy on the principle of creating more favorable conditions for investors. 2. The Government of Vietnam encourages and gives special preferences to investment projects which produce goods for export and use high technologies and to investment projects on the list of projects where investment is specially encouraged and the list of geographical areas where investment is encouraged, which are provided for in Appendix 1 attached to this Decree. 3. In cases where any new provisions of law adversely affect the interests of foreign-invested enterprises and parties to business cooperation contracts (hereafter referred to as enterprises) which have been already stipulated in the investment licenses, such provisions shall not apply to the already licensed investment projects. If new and more preferential provisions are issued after the enterprises have been granted investment licenses, the investment license- granting agency shall make adjustments so that the enterprises can benefit therefrom in accordance with the provisions of this Decree. Article 2.- 1. The ministries, the agencies attached to the Government, the People's Committees of the provinces and cities directly under the Central Government (hereafter referred to as provincial People's Committee) shall have to guide foreign investment activities in the fields and territories under their respective management; improve their managerial work, revise investment procedures so as to ensure simple and rapid investment procedures on the principle of "one door" and "one stop." The heads of the concerned agencies shall have to supervise, inspect and take responsibility for the activities of the agencies and personnel under their management and promptly handle all violations in accordance with the provisions of law. 2. Before issuing legal documents relating to foreign direct investment activities, the ministries, the agencies attached to the Government and the provincial People's Committees should consult the Ministry of Planning and Investment; any diverse opinions should be promptly reported to the Prime Minister. Chapter II FORMULATION OF INVESTMENT PROJECTS Article 3.- Apart from the fields on the list where investment licenses shall not be granted and the fields where investment is conditional as specified in Appendix I attached to this Decree, foreign investors are entitled to select investment projects, form of investment, location, percentage of legal capital contribution and outlets for their products. Foreign investors are entitled to select partners from any economic sector of Vietnam for investment cooperation. Article 4.- For investment projects with 80% or more of their products being for export and those in a number of other fields to be announced by the Ministry of Planning and Investment, foreign investors shall register dossiers according to the form issued by the Ministry of Planning and Investment; the investment license granting agency shall decide to grant investment licenses within 15 days after receiving the valid dossiers. Article 5.- For the business fields and lines which, as provided for, require business licenses or practicing licenses, enterprises shall only have to register with a competent State agency for starting their business activities according to the objectives and lines stated in the investment license without having to apply for a business license or a practicing license. Chapter III INVESTMENT INCENTIVES AND GUARANTY Article 6.- 1. For projects which were licensed before November 23, 1996, the Ministry of Planning and Investment shall consider and adjust preferential profit tax rates and the duration of profit tax exemption or reduction according to the criteria for investment incentives provided for in Decree No. 12-CP of February 18, 1997 of the Government detailing the implementation of the Law on Foreign Investment in Vietnam (hereunder referred to as Decree No. 12-CP) or in the Regulation on Industrial Parks, Export-Processing Zones and High-Tech Parks issued together with Decree No. 36-CP of April 24, 1997 of the Government. 2. The preferential profit tax rates applicable to foreign-invested enterprises and foreign parties to business cooperation contracts, that invest in the projects on the list of projects where investment is specially encouraged and the list of geographical areas where investment is encouraged shall apply throughout the operating duration of the projects. Article 7.- Apart from the projects which are entitled to profit tax exemption for eight years under Clause 4, Article 56 of Decree No. 12-CP, investment projects in the geographical areas where investment is encouraged and projects where investment is specially encouraged stated in Appendix I attached to this Decree shall be entitled to profit tax exemption for four years starting from the time the profit is generated from business and a 50% reduction of profit tax for four subsequent years. Article 8.- Enterprises engaged in the production of export goods shall be allowed to defer payment of import tax on raw materials imported for the production of export goods within the time limit specified in the Law on Import-Export Taxes. For a number of export products, the above-mentioned duration for deferred tax payment shall be decided by the Ministry of Finance, depending on the production requirements or production cycles. Article 9.- The price for calculating import tax on the imported goods subject to import tax shall be determined on the basis of the price written in the invoice of imported goods. In cases where such invoice is not available, the price for calculating import tax shall be determined according to the regulations of the Ministry of Finance. Any fraud in the price for calculating import tax to evade tax is strictly forbidden and all acts of import tax evasion shall be strictly handled in accordance with law. Article 10.- 1. Import duty-free equipment, machinery and specialized means of transport imported to form fixed assets of enterprises under the provisions of Article 63, Decree No. 12-CP, are specified in Appendix II. A attached to this Decree. Apart from being exempt from import tax on the above-said equipment, machinery and means of transport, enterprises shall be also exempt from import duty on: - Construction materials imported to form fixed assets, which have not yet been produced in the country; - Materials and supplies imported to manufacture equipment and machinery of the technological line or to manufacture components, details, attached parts, spare parts, jigs, molds and accessories accompanied with equipment and machinery. The import tax exemption for the above-mentioned supplies and materials shall also apply to cases of project expansion, replacement or upgrading of technology. 2. In addition to import duty-free equipment, machinery and specialized means of transport imported to form fixed assets of enterprises under Article 63, Decree No. 12-CP, enterprises operating in the fields of hotels, offices and apartments for lease, residential houses, trade centers, technical services, department stores, golf courses, tourist resorts, sports centers, entertainment centers, clinics, training, cultural, financial, banking, insurance, auditing and consulting services shall also be entitled to one duty-free import of the equipment specified in Appendix II.B attached to this Decree. 3. The investment projects on the list of projects where investment is specially encouraged and the investment projects in mountainous, remote and deep-lying areas specified in Appendix I attached to this Decree shall be exempt from import duty on production materials for five years from the commencement of production. Article 11.- In the course of operation, foreign-invested enterprises are entitled to carry forward losses of any tax year to the subsequent tax year and to offset such losses with the profits of subsequent years for a maximum period of five years. Article 12.- 1. Loan interests incurred by enterprises shall be accounted into their capital construction costs or production costs and be determined on the basis of the credit contracts but such interest rates must not be higher than the ceiling credit interest rates announced by the State Bank of Vietnam to be applicable to domestic loans or the interest rates and fees applicable to foreign loans already registered with the State Bank of Vietnam. 2. Foreign-invested enterprises and foreign parties to business cooperation contracts shall be permitted, when determining taxable income, to exclude their donations to Vietnamese organizations and/or individuals for charity and humanitarian purposes. Article 13.- 1. For investment projects that are required to export their products; the export proportion and the tempo for fulfilling this export proportion shall be stated in the investment licenses. In the course of business operation, if enterprises fail to fulfill the export proportions stated in their investment licenses, they shall have to report it to the Ministry of Trade for consideration and adjustment of the annual plan on product consumption. In cases where an enterprise fails to fulfill the export proportion stated in its investment license for three consecutive years, the investment license-granting agency shall consider and adjust the export proportion and the relevant incentives stated in the investment license or withdraw the investment license. 2. Enterprises which sell their products to other enterprises to directly manufacture other products for export shall be exempt from import tax on the raw materials and turnover tax on the above-said amount of products. Foreign-invested enterprises are entitled to export through fiduciaries or to act as export fiduciaries in accordance with the provisions of law. 3. Enterprises are entitled to purchase goods and products on the Vietnamese market for export processing or for export according to the regulations of the Ministry of Trade. Article 14.- 1. Enterprises shall directly, or through agents, consume the permitted quotas of their products on the Vietnamese market without any restrictions on the geographical areas for product consumption. 2. Enterprises shall decide the selling prices of their products. For goods and services which are under the State's unified pricing management, their selling prices shall be within the price bracket announced by a competent State agency. Article 15.- 1. The State Bank of Vietnam guarantees to balance foreign currencies for enterprises in the fields of infrastructure, production of essential import substitutes and important investment projects announced by the Ministry of Planning and Investment. The sale of foreign currency to the above-mentioned enterprises shall be guaranteed throughout their operating duration. 2. Production enterprises which are obliged to export their products and other enterprises which are not stated in Clause 1 of this Article shall be supported by the State Bank of Vietnam in partly satisfying their foreign currency demands in really necessary and reasonable cases for the first three years from the time the enterprises start their production and business in the following priority order: - Import of materials and raw materials for production in the year; - Import of spare parts; - Payment of loan interests. 3. The State Bank of Vietnam shall consider and allow enterprises operating in the service sector (tourism, hotels, offices for lease, mass transit, schools, health, culture, equipment for lease,...) to purchase foreign currency(ies) in accordance with current regulations on the foreign exchange management . 4. The sale of foreign currency(ies) by banks to the enterprises mentioned in Clauses 1, 2 and 3 of this Article shall comply with the guidance of the State Bank of Vietnam. Article 16.- In the course of business operation in Vietnam, enterprises are entitled to pledge or mortgage their assets in accordance with the provisions of law. Article 17.- 1. In cases where an enterprise rents land to realize an investment project or the Vietnamese party contributes capital with the value of its land use right, the land rent or the debt acknowledged to the State in case the Vietnamese party contributes capital with the value of its land use right shall be calculated from the time the enterprise is assigned the land use right under the land renting contract. 2. The provincial People's Committee of the locality where the investment project is located shall determine the costs of land compensation and site clearance according to the regulations of the Ministry of Finance and be responsible for organizing the compensation and site clearance. Article 18.- 1. The Government guarantees to support the construction of technical infrastructure projects up to the surrounding fence of foreign-invested enterprises or industrial parks. In case of necessity, technical infrastructure-developing and-trading companies may negotiate with the industrial zone infrastructure development enterprises or foreign-invested enterprises on the advance disbursement of capital or another mode for the construction of a technical infrastructure project. 2. Apart from sub-leasing land to enterprises for their construction, industrial zone infrastructure development enterprises shall be allowed to sub-lease the unleased land to domestic and foreign enterprises for further sub-lease to other enterprises. Chapter IV STATE MANAGEMENT OVER OPERATIONS OF ENTERPRISES Article 19.- 1. The ministries, the agencies attached to the Government and the People's Committees of the provincial level shall perform the State management over foreign investment in accordance with the provisions of law, reorganize and strengthen the mechanism for coordination in the management of enterprises. 2. The People's Committees of the provincial level shall have to promptly deal with problems under their jurisdiction and provide guidance for enterprises to operate in accordance with the provisions in their investment licenses and the provisions of law. 3. The Ministry of Planning and Investment shall gather and supply information on the investment situation to the relevant ministries, agencies attached to the Government and provincial People's Committees and periodically work with the Ministry of Finance, the Ministry of Trade, the State Bank of Vietnam, the General Administration of Land, the General Department of Customs and the concerned provincial People's Committees so as to promptly deal with arising matters, respond to enterprises' recommendations and propose policies and measures to improve the investment environment. Article 20.- 1. The inspection of operations of enterprises aims to help enterprises overcome difficulties, settle arising matters and abide by the provisions of the investment licenses and the provisions of law. The inspection shall have to comply with the following stipulations: - The provincial People's Committees or the provincial boards for the management of industrial parks (for enterprises in industrial parks) shall draw up plans and assume the prime responsibility for organizing periodical inspection to evaluate the implementation of the provisions of the investment licenses and assess the effectiveness of enterprises' operations. - The ministries and the agencies attached to the Government shall draw up plans and assume the prime responsibility for specialized inspection to evaluate the implementation of law provisions relating to the fields under their management; - The competent State agencies shall organize irregular inspection when enterprises show signs of law offense or have incidents. 2. The inspecting agency shall have to notify in advance the provincial People's Committee or the provincial board for the management of industrial parks of the inspection plan and contents. The periodical or specialized inspection shall be conducted not more than once a year at an enterprise. 3. The periodical or specialized inspection agency shall have to inform the subject enterprise of the inspection plan and contents at least 7 days before the inspection. The time of inspection at an enterprise shall not exceed 5 working days; if the inspection time needs to be longer, the inspecting agency shall have to inform the provincial People's Committee or the provincial board for the management of industrial parks thereof. All inspection activities not duly permitted nor in accordance with law or the abuse of inspection to cause troubles to enterprises are handled in accordance with the provisions of law. Enterprises shall be entitled to make complaints against the inspection if they deem the inspection is not in accordance with the provisions of law. 4. Within 30 days from the end of the inspection, the inspecting agency shall send a report on the inspection result to the Ministry of Planning and Investment and the concerned agencies. Chapter V IMPLEMENTATION PROVISIONS Article 21.- 1. This Decree takes effect 15 days after the date of its signing. 2. In cases where the provisions of this Decree are different from those of the government decrees regarding foreign investment which are issued before the effective date of this Decree, the provisions of this Decree shall apply. 3. The regulations of the ministries, the agencies attached to the Government and the provincial People's Committees which are contrary to this Decree are now annulled. Article 22.- The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the People's Committees of the provinces and cities directly under the Central Government shall have to guide and implement this Decree. On behalf of the Government The Prime Minister PHAN VAN KHAI APPENDIX I I. LIST OF PROJECTS WHERE INVESTMENT IS ESPECIALLY ENCOURAGED 1. Projects with 100% of products being for export; 2. Projects for the production of new or high-quality hybrid breeds of international standard and high economic efficiency; 3. Projects for processing agricultural, forestry and aquatic products for export from domestic materials which have high added value and employ intensive labor; 4. Projects on the list of projects where investment is encouraged to be located in geographical areas where investment is encouraged; 5. Project for the production of new materials. rare and precious materials, projects to apply new biological technology, electronic technology, new technology for manufacturing information and telecommunications equipment; and informatic technology; 6. Export-processing enterprises, high-tech industrial enterprises in industrial parks, export processing zones and high-tech parks; 7. Projects for treatment of environmental pollution and environment protection, for waste processing and treatment; 8. Investment projects under BOT, BTO and BT contracts. II. LIST OF PROJECTS WHERE INVESTMENT IS ENCOURAGED 1. The agricultural, forestry and fishery sectors: - Processing of agricultural, forestry and aquatic products for export; - Technology for the preservation of food; post-harvest preservation of agricultural products; and the

Nghị định 10/1998/NĐ-CP