Decree No. 133/2008/ND-CP dated December 31, 2008 of the Government detailing and guiding the implementation of a number of articles of the Law on technology transfer

DECREE

DETAILING AND GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE LAW ON TECHNOLOGY TRANSFER

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the November 29, 2005 Law on Technology Transfer;

At the proposal of the Minister of Science and Technology,

DECREES:

Article 1. Scope of regulation

This Decree details and guides the implementation of a number of articles of the Law on Technology Transfer regarding technology transfer contracts, technology evaluation services and measures to encourage and promote technology transfer.

Article 2. Making of technology transfer contracts

1. Technology transfer and entry into technology transfer contracts comply with Article 12 and Clause 1, Article 14 of the Law on Technology Transfer and other relevant provisions of law.

2. In case a technology transferor transfers to a technology transferee more than one subject matter of technology, they may make a common contract or several different contracts, provided that these contracts do not have contents on the same transferred technology.

In case a technology transferor transfers a technology accompanied with machinery, equipment and technical devices, a list of and agreements on these machinery, equipment and technical devices must be provided in the transfer contract or annexes thereof.

3. A technology transfer contract involving the transferred subject matter being documents on technologies which contain technical solutions, technical know-how, engineering drawings, formulas or technological processes must specifically indicate the titles and contents of these documents.

4. For a technology transfer contract with a technological training content, the contracting parties shall include in the contract or annex thereof their agreements on the number of technical workers and technicians; sectors or professions in which the training is provided; training expenses, duration and places, ensuring that transferees can absorb and master transferred technologies after the training.

5. For a technology transfer contract with a content that the technology transferor shall send technical consultants to provide technical assistance or consultancy to the technology transferee in applying transferred technologies to production, the contracting parties shall include in the contract or annex thereof their agreements on the number of consultants; technical assistance and consultancy contents, duration and expenses, ensuring that the transferee can turn out products up to quality standards and solve difficulties in the course of application of transferred technologies to production.

Article 3. Payment methods under technology transfer contracts

Contracting parties may agree on payment by any of the following methods:

1. Payment in lump sum or installments in cash or in kind;

2. Conversion of the technology value into contributions as capital to an investment project or to an enterprise;

In case the contracting parties agree on contribution of technologies as capital, only after the technology transfer is completed with these parties' certification can the technology value be accounted by contribution of the technology transferor to the investment project or enterprise;

3. Payment on a seasonal basis at a percentage (%) of the net selling price.

The net selling price is determined to equal the selling price of products or services turned out by the transferred technology (according to sale invoices) minus value-added tax, excise tax, export duty (if any); costs of semi-finished products, parts, details and components imported or purchased at home; package material and packaging costs, freight for transportation of products to outlets, and advertisement expenses;

4. Payment at a percentage (%) of the net turnover.

The net turnover is determined to equal the turnover from sale of goods or provision of services turned out by the transferred technology minus turnover reductions including commercial discounts, price reductions of goods sold, returned goods;

5. Payment at a percentage (%) of the pre-tax profit of the transferee.

The pre-tax profit is determined to equal the net turnover minus total reasonable expenses for the production of marketed products with the transferred technology;

6. Combination of payment methods specified in Clauses 1, 2, 3, 4 and 5 of this Article.

Article 4. Technology transfer funded with state capital

1. When using state capital for receiving a transferred technology under an investment project, a technology transferee shall work out a plan on receipt of the transferred technology, clearly stating technology transfer contents and the estimated price of the technology, then submit it to an agency with investment-deciding competence. The technology transferee shall take responsibility for technology transfer contents and the payment price of the transferred technology under a decision of the agency with investment-deciding competence.

2. Cases in which capital of many sources is used for receiving a transferred technology, of which state capital accounts for 51% or more, comply with Clause 1 of this Article.

Article 5. List of technologies encouraged for transfer, list of technologies restricted from transfer and list of technologies banned from transfer

1. Enclosed with this Decree are the following lists:

a/ A list of technologies encouraged for transfer (Appendix I);

b/ A list of technologies restricted from transfer (Appendix II);

c/ A list of technologies banned from transfer (Appendix III).

2. Ministries, ministerial-level agencies and government-attached agencies shall:

a/ Organize the identification of specific technologies on the lists mentioned in Clause 1 of this Article;

b/ Annually, based on the socio-economic development situation and state management requirements, propose amendments and supplements to the lists of technologies mentioned in Clause 1 of this Article.

3. The Ministry of Science and Technology shall:

a/ Guide ministries, ministerial-level agencies and government-attached agencies in procedures and criteria for identifying specific technologies on the lists of technologies mentioned in Clause 1 of this Article;

b/ Consider proposals of ministries, ministerial-level agencies and government-attached agencies on amendment or supplementation of the lists of technologies mentioned in Clause 1 of this Article and sum up and submit them to the Government for decision.

Article 6. Registration of technology transfer contracts

1. Technology transfer contracts are not subject to compulsory registration but contracting parties may register their contracts if they so wish. If wishing to register a technology transfer contract, a technology transferee (in case of transfer of a technology from abroad into Vietnam) shall, within 90 days after entering into the contract, file on behalf of the contracting parties a dossier with an agency competent to issue technology transfer contract registration certificates under Article 9 of this Decree.

2. For contracts for transfer of technologies on the list of technologies encouraged for transfer, technology transfer contract registration certificates serve as a basis for enjoying the incentives provided in this Decree and relevant laws.

3. Technology transfer contract registration certificates are made according to a form provided in Appendix IV to this Decree (not printed herein).

Article 7. Dossiers for registration of technology transfer contracts

1. A dossier for registration of a technology transfer contract comprises:

a/ An application for registration of the technology transfer contract;

This application shall be made according to a form provided in Appendix V to this Decree (not printed herein).

b/ The original or a notarized copy of the technology transfer contract in Vietnamese and a foreign language. The contract must be signed and sealed by the contracting parties and must be initialed and sealed by the contracting parties on every two adjoining pages and annexes in case a contracting party is an organization.

2. The filing of dossiers for registration of technology transfer contracts must comply with the following regulations:

a/ For cases of technology transfer specified in Clause 1, Article 9 of this Decree, the technology transferee (in case of transfer of a technology from abroad into Vietnam or within the country) or the technology transferor (in case of transfer of a technology from Vietnam abroad) shall file on behalf of the contracting parties 3 (three) dossier sets, including at least 1 (one) original, with the Ministry of Science and Technology;

b/ For cases of technology transfer not specified in Clause 1, Article 9 of this Decree, the technology transferee (in case of transfer of a technology from abroad into Vietnam or within the country) or the technology transferor (in case of transfer of a technology from Vietnam abroad) shall file on behalf of the contracting parties 3 (three) dossier sets, including at least 1 (one) original, with the provincial-level Science and Technology Service in the locality where the transferee (or the transferor) is headquartered.

Article 8. Registration of modification of technology transfer contracts

1. If parties to a technology transfer contract for which a technology transfer registration certificate has been issued agree to modify the contract, they shall send the modified contract to the agency that has issued the registration certificate for issuance of a certificate of registration of modification of the contract.

2. A dossier for registration of modification of a technology transfer contract comprises:

a/ An application for registration of modification of the technology transfer contract;

This application shall be made according to a form provided in Appendix V to this Decree (not printed herein).

b/ The original or a notarized copy of the modified contract in Vietnamese and a foreign language. The contract must be signed and sealed by the contracting parties and must be initialed and sealed by the contracting parties on every two adjoining pages and annexes in case a contracting party is an organization.

3. The agency competent to register technology transfer contracts for technologies encouraged for transfer shall receive dossiers for registration of modification of technology transfer contracts specified in Clause 2, Article 7 of this Decree.

Article 9. Competence to issue technology transfer contract registration certificates

1. The Ministry of Science and Technology shall issue technology transfer contract registration certificates for technologies of investment projects in which investment is approved by the Prime Minister.

One copy of a technology transfer contract registration certificate shall be sent to the provincial-level Science and Technology Service in the locality where the transferee is headquartered for coordinated monitoring and inspection of contract performance.

2. Provincial-level Science and Technology Services shall issue technology transfer contract registration certificates for technologies other than those specified in Clause 1 of this Article.

One copy of a technology transfer contract registration certificate shall be sent to the Ministry of Science and Technology for management.

3. Within 15 days after receiving a valid dossier, the competent agency specified in Clause 1 or 2 of this Article shall examine the dossier and issue a technology transfer contract registration certificate. In case of refusal to issue a techno-logy transfer contract registration certificate, it shall reply in writing, clearly stating the reason.

Article 10. Approval of technology transfer for technologies on the list of technologies restricted from transfer

1. Organizations and individuals that wish to receive or transfer technologies on the list of technologies restricted from transfer must fully satisfy the following conditions:

a/ For technologies transferred from abroad into Vietnam: Organizations and individuals that wish to receive these technologies must have functions and tasks directly related to the use of to-be-received technologies; have sufficient material foundation and qualified personnel to receive and safely operate technologies; and shall strictly observe national standards and technical regulations;

b/ For technologies transferred from Vietnam abroad: Organizations and individuals that wish to transfer these technologies shall ensure that the technology transfer is not prejudicial to national interests.

2. Organizations and individuals that wish to receive or transfer technologies on the list of technologies restricted from transfer shall file dossiers with the Ministry of Science and Technology for approval.

3. The Ministry of Science and Technology shall coordinate with other ministries and ministerial-level agencies in approving transfers of technologies related to branches or domains under the management of these ministries and ministerial-level agencies.

4. Within 30 days after receiving a valid dossier, the Ministry of Science and Technology shall examine it and issue a written approval of technology transfer. In case of disapproval, it shall reply in writing, clearly stating the reason.

5. Dossiers of application for approval of transfers of technologies on the list of technologies restricted from transfer comply with Clause I, Article 12 of this Decree.

Article 11. Licensing of transfer of technologies on the list of technologies restricted from transfer

1. The Ministry of Science and Technology shall evaluate and issue technology transfer licenses for technologies on the list of technologies restricted from transfer specified in Article 52 of the Law on Technology Transfer.

2. Within 60 days after entering into a technology transfer contract, the technology transferee (in case of transfer of a technology from abroad into Vietnam or within the country) or the technology transferor (in case of transfer of a technology from Vietnam abroad) shall file on behalf of the contracting parties 3 (three) sets of the dossier of application for a technology transfer license, including at least 1 (one) original, with the Ministry of Science and Technology.

3. Within 10 days after receiving a valid dossier, the Ministry of Science and Technology shall examine it and issue a technology transfer license.

3. In case the dossier is incomplete or improper according to law, the Ministry of Science and Technology shall request in writing the party that has filed the dossier to modify it. Within 10 days after receiving the duly modified dossier, the Ministry of Science and Technology shall examine it and issue a technology transfer license. In case of refusal to issue a license, it shall reply in writing, clearly stating the reason.

Past 60 days after receiving the Ministry of Science and Technology's written request for dossier modification, if the contracting parties fail to comply with such request, their dossier of application for a technology transfer license will become invalid.

4. In the course of performance of a technology transfer contract for which a technology transfer license has been issued, if the contracting parties wish to modify contents of the technology transfer license, one of them shall file on their behalf a dossier of application for a new license.

5. Technology transfer licenses are made according to a form provided in Appendix VI to this Decree (not printed herein).

Article 12. Dossiers of application for approval of, and dossiers of application for licensing of transfer of technologies on the list of technologies restricted from transfer

1. A dossier of application for approval of transfer of a technology on the list of technologies restricted from transfer comprises:

a/ An application for approval of technology transfer;

b/ A document on the applicant's legal status; a copy of the investment certificate or business registration certificates or practice license for the business line or profession the applicant is conducting or practicing;

c/ Explanatory documents on the technology;

d/ Explanatory documents on the satisfaction of the conditions specified in Clause 1, Article 10 of this Decree.

Applications for approval of technology transfer and principal contents of explanatory documents on technologies shall be made according to forms provided in Appendices VII and VIII to this Decree (not printed herein).

2. A dossier of application for a license for transfer of a technology on the list of technologies restricted from transfer:

a/ An application for a technology transfer license;

Applications for technology transfer licenses must be made according to a form provided in AppendixDC to this Decree (not printed herein).

b/ A document on the legal status of the contracting parties: copies of the investment certificates or business registration certificates or practice licenses for the business lines or professions the contracting parties are conducting or practicing; and certifications of the legal status of their representatives who sign the contract;

c/ The Ministry of Science and Technology's written approval of technology transfer;

d/ The original or a notarized copy of the technology transfer contract in Vietnamese and a foreign language. The contract must be signed and sealed by the contracting parties and must be initialed and sealed by contracting parties on every two adjoining pages and annexes in case a contracting party is an organization;

e/ A list of technology documents, machinery, equipment and technical devices (if any) enclosed with the technology transfer contract;

f/ For technology transfers funded with state capital, written consent of the agency with investment-deciding competence to the technology transfer and the estimated price of the transferred technology.

Article 13. Technology transfer under projects or commercial franchising contracts, industrial property rights assignment contracts or contracts on sale and purchase of machinery and equipment accompanying technology transfer

1. In case an investment project, commercial franchising contract, industrial property rights assignment contract or machinery and equipment sale and purchase contract has a technology transfer content, when that project or contract is formulated, the technology transfer content and expenses must be presented in a separate part of the project or contract.

2. For technologies on the list of those restricted from transfer, the dossier and licensing for the technology transfer part under a project or a contract must comply with Articles 10, 11 and 12 of this Decree.

3. For technologies not on the list of those restricted from transfer, the dossier and registration of the technology transfer part under a project or a contract must comply with Articles 6, 7, 8 and 9 of this Decree.

Article 14. Technology transfer contracts ineligible for registration certification or technology transfer licensing

1. Technology transfer contracts contain no subject matter of technology specified in Article 7 of the Law on Technology Transfer.

2. Technology transfer contracts are in violation of Article 13 of the Law on Technology Transfer.

Article 15. Withdrawal of technology transfer contract registration certificates or technology transfer licenses

1. A technology transfer contract registration certificate or technology transfer license shall be withdrawn in the following cases:

a/ The contracting parties fail to perform the technology transfer 12 months after the technology transfer contract registration certificate or technology transfer license is issued;

b/ The transferred technology is other than that for which the technology transfer contract registration certificate or technology transfer license has been issued;

c/ Documents for technology transfer contract registration or application for a technology transfer license are fake.

2. Agencies that have issued technology transfer contract registration certificates or technology transfer licenses may withdraw these certificates or licenses.

3. In case parties that have obtained technology transfer contract registration certificates or technology transfer licenses and enjoyed the incentives provided for in the Law on Technology Transfer have their technology transfer contract registration certificates or technology transfer licenses withdrawn, they shall refund these incentives to the State.