Transfer of foreign direct investment capital in cases where the Investment Registration Certificate only records the Economic Organization implementing the investment project
June 26th, 2026
1. Practical difficulties in foreign investors’ direct investment capital transactions where the Investment Registration Certificate only records the Economic Organization implementing the investment project
At present, certain foreign investors contributing capital in Vietnam encounter difficulties in opening and operating a Direct Investment Capital Accounts (“DICA”) due to differing interpretations and applications of the law between banks and investment management authorities.
Specifically, certain banks require that a foreign-invested enterprises may only open a DICA accounts or conduct transactions through a DICA (including receiving direct investment capital contributions) from foreign investors if the foreign investor’s name is directly listed on the Investment Registration Certificate (“IRC”). In cases where the IRC only identifies the foreign-invested enterprise as an Economic Organization implementing the investment project, without indicating information relating to the foreign investor, transactions conducted through DICA may be rejected, notwithstanding that the foreign investor’s capital contribution status has been duly recorded in the Enterprise Registration Certificate (“ERC”).
2. Legal regulations regarding the recognition of foreign investor status in the IRC
According to the Law on Investment 2005, where a foreign investor carried out an investment project in connection with the establishment of an Economic Organization, the Investment Certificate simultaneously serves as the Business Registration Certificate. Therefore, information relating to the foreign investor and the permission to establish the Economic Organization are directly reflected on this Investment Certificate.
However, since the Law on Investment 2014 came into effect, investment legislation has separated these two aspects into IRC and ERC and clarified the mechanism for project implementation, specifically:
· Article 22.2 of the Law on Investment 2014 stipulates that “A foreign investor shall implement an investment project through an economic organization…”;
· Article 22.2 of the Law on Investment 2020 stipulates that “From the date of issuance of the ERC or other documents having equivalent legal validity, the economic organization established by the foreign investor shall be the investor implementing the investment project in accordance with the IRC”;
· Article 19.2 of the Law on Investment 2025 permits that “A foreign investor may establish an economic organization to implement an investment project before carrying out the procedures for issuance or amendment of an IRC” and provides guidance under Article 72 of Decree No. 96/2026/ND-CP as follows:
o In the case where a foreign investor establishes an economic organization before carrying out the procedures for the issuance or amendment of an IRC: After its establishment, the economic organization implementing the investment project shall carry out investment procedures in accordance with the law on investment and relevant international commitments;
o In the case where a foreign investor carries out the procedures for the issuance or amendment of an IRC before establishing the economic organization, the economic organization established by such foreign investor shall be the investor implementing the investment project in accordance with the IRC.
Based on the foregoing, after the conversion of the former Investment Certificate into separate ERC and IRC forms, and through regulations clarifying the status of the economic organization implementing the project in subsequent amendments to the Investment Law, the adjustment by the Investment Management Authorities in the method of recording the Investor as simultaneously an economic organization implementing the investment project, or only recognizing the economic organization implementing the investment project on the IRC, is consistent with the spirit of the prevailing investment laws.
This recognition does not mean the removal of the foreign investor's status in relation to the investment project; instead, the foreign investor's status in contributing capital to establish an economic organization is still fully reflected in the ERC.
3. The Bank’s current approach
Certain banks currently rely on the provisions of Article 4.1 of Circular No. 06/2019/TT-NHNN to determine eligible entities for capital contribution based on the IRC, arguing that the ERC does not constitute a sufficient legal basis to evidence the foreign investor’s right to contribute capital.
However, Article 4.1 of Circular No. 06/2019/TT-NHNN, as cited by the banks, does not limit the sources of documents evidencing capital contribution capability to IRC only. This provision allows the use of “other documents evidencing the foreign investor's capital contribution in accordance with the law”, thereby providing a legal basis for banks to assess the enterprise’s dossier as a whole, including the ERC, business registration documents, documents evidencing the capital contribution ratio, the capital contribution decision, or other relevant legal documents.
Therefore, for legally established and operating foreign-invested enterprises, where the ERC records the information of the foreign investor(s), the ERC constitutes an important basis for determining the foreign investor’s right to make capital contributions, transfer capital, and conduct other transactions through the DICA. The failure to directly record the foreign investor in the IRC does not alter the legal nature of the investment relationship already established under the provisions of the law on enterprises and investment.
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The interpretation and application of the law by certain Banks have not been fully consistent with the spirit and intent of the prevailing investment laws, thereby causing significant difficulties for enterprises in the course of their operations. Therefore, it is required the Banks in compliance with laws to ensure the legitimate rights of foreign investors and guarantee the capital utilization needs of enterprises. Besides, enterprises need to promptly update information to ensure compliance and protect their rights.
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