Question:
Our company is a foreign-invested enterprise in Vietnam intending to receive technology from its overseas parent company for its business operations. The technology may fall within the List of Technologies Subject to Restrictions on Transfer. Must the Company obtain a License before the transfer? What documents, competent authority, procedures, and statutory timelines apply?
Answer:
1. Cases requiring a Technology Transfer License
Pursuant to Article 28 of the Law on Technology Transfer 2017, organizations and individuals transferring technologies subject to restrictions under Article 10 must apply for a Technology Transfer License. This requirement covers restricted technology transfers from foreign countries to Vietnam, domestic transfers, and transfers from Vietnam to foreign countries.
Enterprises should therefore review the proposed technology against Article 10 before proceeding with the transaction to determine the applicable licensing requirements.
2. Application dossier and procedures
The procedure consists of two stages. Approval is not required for technology transfers under investment projects where the technology has already been appraised or consulted on during the investment policy decision or investment decision stage.
Stage 1: Approval of the technology transfer
Pursuant to Article 29, the applicant must submit an application to the People’s Committee of the province where the technology is received. The application comprises: (i) a written request for approval; (ii) documents evidencing the applicant’s legal status; (iii) an explanation of the technology; (iv) an explanation of the conditions for using the technology; and (v) documents demonstrating compliance with laws on standards and technical regulations.
Within 03 working days of receipt, the Provincial People’s Committee reviews the application and requests supplementation if it is invalid. Within 30 days of receipt of a valid application, it issues written approval or a written refusal stating the reasons.
Stage 2: Execution of the agreement and application for the License
After approval is obtained, the parties execute the technology transfer agreement. Within 60 days from its execution, the party responsible for applying for the License must submit one (01) application dossier to the Provincial People’s Committee. The dossier comprises:
- An application for the License, including the parties’ commitments and responsibilities to ensure the agreement complies with applicable laws;
- Documents evidencing the legal status of the parties;
- The original Vietnamese-language agreement or a certified copy; if the agreement is not in Vietnamese, a notarized or certified Vietnamese translation;
- A list of accompanying technology documents, machinery, and equipment (if any);
- Certified copies of intellectual property protection titles (if any);
- Standards and quality specifications of products or services resulting from the transferred technology;
- An explanation of the conditions for using the technology; and
- A technology valuation document if the recipient uses state capital.
Within 05 working days of receipt, the Provincial People’s Committee reviews the dossier and requests supplementation if necessary. The parties have 60 days from receipt of the request to supplement the dossier or request an extension. The extension must not exceed 60 days. If the requested supplementation is not made within the applicable period, the authority will notify the parties of its refusal to issue the License and return the dossier upon request.
Within 15 working days of receipt of a valid dossier, the Provincial People’s Committee appraises the application and issues the License. Any refusal must be made in writing with reasons.
3. Post-licensing obligations and key considerations
– Changes to the License: If any information stated in the License needs to be changed, the organization or individual must apply for a new License according to Clause 6, Article 30.
– Annual reporting: The technology recipient must report on implementation of agreements involving transfers from foreign countries to Vietnam and domestic transfers. For transfers from Vietnam to foreign countries, the technology transferor must submit the report, in accordance with regulations of the Ministry of Science and Technology according to Clause 3, Article 28.
Conclusion:
The key steps are to (1) determine whether the technology is subject to restrictions; (2) obtain transfer approval, unless exempt; (3) execute the agreement and apply for the License within 60 days; and (4) comply with annual reporting requirements and apply for a new License if its contents need to be changed.
