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Monday, 28/06/2021

APPLICATION OF FOREIGN STANDARDS IN CONSTRUCTION ACTIVITIES – CHANGES IN DECREE 15/2021/ND-CP

Decree 15/2021/ND-CP detailing contents on the management of construction projects was issued and took effect from 3 March 2021. This article compares the regulations on the application of foreign standards mentioned in Article 8 of Decree 15/2021/ND-CP on a comparable basis with the provisions under Article 6 of previous Decree 46/2015/ND-CP.

1.    Application of foreign standards

A.      REVISION OF LEGAL BASIS

Under previous Decree 46/2015/ND-CP, the application of the standard “shall comply with the provisions of Article 6 of the Construction Law and the relevant regulations issued by the Ministry of Construction“.

Under Decree 15/2021/ND-CP, the selection and application of foreign standards shall comply with “the provisions of the Construction Law and other relevant laws and regulations“. This is a change comparing to Decree 46/2015/ND-CP.

B.      SIMPLIFY THE TERMS OF APPLICATION

Under previous Decree 46/2015/ND-CP, there are at least 3 documents that shall submit for approval for the application of foreign standards, including:

  • The description of the necessity for application
  • Full-text standard in a file or a printed copy
  • Vietnamese or English translation for applicable contents

Under previous legislation, the Employer (together with the Consultant/Contractor/ Supplier) shall prepare a dossier and submit it to the investment decision maker for approval of each foreign standard to be applied. The dossier shall contain a report comparing the foreign standard to be applied with equivalent Vietnamese standards, together with the reasons for not applying the Vietnamese standard. The submission requirement of “full-text standard” also causes copyright infringement in cases the parties have purchased the original standard from an international or foreign organization that contains the requirements have not been allowed to make copies. Providing Vietnamese/English translations of original standards from foreign languages (for example Russian, French, Chinese, German, Japanese, etc.) cause financial and time burden for the parties.

Until Decree 15/2021/ND-CP, the only mandatory requirement for the application of foreign standards is: “The design reports or technical specifications (if any) shall contain the assessment of compatibility, uniformity, and compliance with national technical regulations“. Hence, it is only necessary to add 1 chapter explaining the general assessment in the construction design or technical instructions without containing complicated documents such as Decree 46/2015/ND-CP. It saves time and unnecessary costs in applying foreign standards.

C.       Encourage the application of recognized and widely adopted foreign standards

Under Article 8.2 (b) of Decree 15/2021/ND-CP, for the first time the regulation mentioned that “Application of recognized and widely adopted foreign standards shall be priority”. This is a new and progressive point, closer to the government policy on the development of activities in the field of standards under Articles 7 and 8 of the Law on Standard and Technical Regulations: “Encourage domestic and foreign organizations and individuals as well as overseas Vietnamese to participate in formulating and applying standards and technical regulations” and “Encourage expansion of cooperation with other countries, territories, international organizations, regional organizations, foreign organizations and individuals on standards and technical regulations“.

2.    Application of new technology materials

A.      Adjustment of applicable principles

With new materials and technologies being applied for the first time, while Decree 46/2015/ND-CP requires that “shall meet the requirements of relevant technical regulations and legal regulations“, Decree 15 2021/ND-CP only request “shall comply with national technical regulations and relevant standards; ensure feasibility, sustainability, safety, and efficiency“.

B.      Removing the requirement to providing proof documents

With previous Decree 46/2015/ND-CP, to apply new technical solutions, technologies and materials for the first time in Vietnam, it is required that “shall present the basis and documents proving the safety, effectiveness and feasibility of such application to a competent agency for appraisal during the appraisal process of the construction design according to the legislations on construction“.

With Decree 15/2021/ND-CP, this condition is removed providing more favorable conditions for the parties to deploy and apply new materials and technologies in construction activities.

Reported by Nguyen Nam Trung (Legal Department of PECC3)

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