DỰ ÁN CÓ ĐỀ NGHỊ NHÀ NƯỚC GIAO ĐẤT, CHO THUÊ ĐẤT THÔNG QUA ĐẤU GIÁ HOẶC ĐẤU THẦU CÓ PHẢI THỰC HIỆN T

Legal situation: Hello, I would like to ask for your legal advice on the following matter: If a project requests the state to allocate or lease land through an auction or bidding process, is it required to obtain investment policy approval from the Provincial People’s Committee?

I would appreciate your response. Thank you.

FDVN’s Opinion: Thank you for submitting your inquiry to FDVN Law Firm. In response to your request, after reviewing the relevant legal provisions, we would like to provide the following analysis:

According to Clause 2, Article 29 of the Law on Investment 2020: The method of investor selection is adopted when (i) holding land use right auction in accordance with regulations of law on land; or (ii) bidding to select an investor in accordance with regulations of law on bidding after the approval for investment guidelines is granted, except for the investment projects not subject to approval for investment guidelines.

Besides, according to Clause 2,  Article 29 of Decree No. 31/2021/NĐ-CP on elaboration of some articles of the Law on Investment, for an investment project subject to approval for its investment guidelines specified in Articles 30, 31, and 32 of the Law on Investment, the investment guideline approving authority shall consider approving investment guidelines and decide on the method of selection of the investor in the project as follows: (i) hold a land use right auction in the land is allocated or leased out for execution of the investment project; (ii) bid to select an investor in the investment project; (iii) grant approval for both investment guidelines and investors without holding a land use right auction or bidding to select investors.

Moreover, under Article 32 of the Law on Investment 2020, provincial People’s Committees shall approve investment guidelines for the following project:

(a) Investment projects that request the State to allocate or lease out land without auction or bidding for or receipt of land use rights, and investment projects that request permission to repurpose land, except for cases of allocation, lease or permission for repurposing of land of households or individuals not subject to the written approval by the provincial People's Committee in accordance with regulations of law on land;

(b) Projects on construction of residential housing (for sale, lease or lease purchase) and urban areas with land use scale of less than 300 hectares and population scale of less than 50,000 people;

(c) Projects on investment in golf course construction and business;

(d) Investment projects of foreign investors and foreign-invested business organizations executed on islands or in border or coastal communes; in other areas affecting national defense and security.

Accordingly, investment projects requesting the State to allocate or lease land through a land use rights auction or investor selection bidding are not subject to investment policy approval if they do not fall under the cases specified in Article 30 (Authority of the National Assembly to approve investment policies), Article 31 (Authority of the Prime Minister to approve investment policies), or Points (b), (c), and (d) mentioned above. Therefore, such projects are not required to undergo the investment policy approval process before conducting the land use rights auction or investor selection bidding.

This is the legal advice of FDVN Law Firm based on an analysis of the relevant legal provisions. We hope this advice is helpful to you.

Nguyễn Thị Huyền Trang – FDVN Law